The Joe Rogan Experience - #1595 - Ira Glasser

Episode Date: January 15, 2021

Ira Glasser is a former director of the American Civil Liberties Union and a lifelong defender of every citizen's right to free speech. He is the subject of the 2020 documentary "Mighty Ira", available now on streaming video.

the joe rogan experience train by day joe rogan podcast by night all day all right let's just get into it ira first of all uh thank you for being on the show i really appreciate it well thank you for having me it's great it's a perfect time to have you on i mean this is uh i mean we're talking about free speech in the time when the president of the United States has been banned off of Twitter and Facebook. And it's right. It's a wild time. What do you make of that? Well, you know, Facebook and Twitter are private publishing. Right. I mean, we don't exactly know what they are. They're not exactly like the Times or like NBC or ABC, but they're close. They're certainly in the private sector.

And the private sector has always had the discretion, it's their First Amendment right, to decide who to publish and who not to publish. You know, it's different with Facebook and Twitter because they claim to be platforms like the telephone company that, you know, anybody can use to have conversations. But they're not quite that. They really are a lot like a publisher. And, you know, if the Times decided to fire one of its columnists because it didn't like what he wrote, they have a First Amendment right to do so. They're not the government. So, you know, to that extent,

what Facebook and Twitter did is perfectly legal and not really different than what a publisher or a broadcasting company would do if it decided to change or fire one of its anchors or one of its columnists. On the other hand, they are sort of like a platform, like an electronic soapbox that they've erected in a park and invited everybody and anybody to come. And when they start picking and choosing, no, you're not good, you're not good, you're okay. When they start being a gatekeeper, you run the risk of them closing people out of a national dialogue and depriving people of an audience, basically. And that's a problem. And it's a problem we haven't figured

out how to work out yet because this medium is in its infancy. You know, people forget that the printing press started in the 15th century in 1400 and something. And it took hundreds of years before freedom of the press worked itself out in ways that we're familiar with now. And we're right at the beginning of this internet speech medium. And it's hard to say.

I think Facebook and Twitter had the right to do what they did in banning Trump. But the question is, if they start banning anything that they don't like, then they're really closing off the public conversation to people. And what's the criteria? How do you do that? like comparing it to the printing press or comparing Facebook or Twitter to publishers or even comparing them to something like a utility, like the power. There's something new. There's something completely different. And I mean, I hope it's not going to take hundreds of years to have some sort of a freedom of expression online in these things, but they're monopolies.

It's not like anybody could have bought or made a printing press and printed their own books or printed their own newspapers not everyone can make their own twitter you know it's too it's so complex and there's so many users on it it yeah there's very few places where you can like legitimately get your word out in a way that you can with Twitter or express yourself. But, you know, and it's true that these this medium is analogous to utilities in some ways, analogous to publishers in some ways. But they are new and they're different. That's that's right. But but consider this. When I was growing up, I was a teenager in the 50s.

When I was growing up, I was a teenager in the 50s. A big problem with free speech and the democratization of free speech was that nobody had access to anything. I mean, you had The Times, you had The Washington Post, you had the Hearst newspapers, you had NBC and ABC and CBS. And that's where most speech occurred. And nobody had access to that. So even with the monopolistic bans that Twitter and Facebook are doing these days, or can do, have the power to do, the fact is that many, many millions more of people, ordinary people, have access to huge audiences than did 50 years ago. You know, if you couldn't get into The Times and you couldn't get into The Washington Post and if you couldn't get onto television, you could speak. You were free to speak, but nobody heard you. you could speak, you were free to speak, but nobody heard you. Yeah.

And so, you know, it's a lot better now, even with questions about abusing the power of being a gatekeeper that Twitter and Facebook have. It's just such a strange time for this because it's in the middle of the like we're at the end of the president's run. He's still in office, but yet he's you know, everybody wants him out as quickly as possible because you're wondering what he's going to do. And he can't really express himself publicly anymore. It's it's just so strange. Yeah, well, of course, you know, he's still the president. If he held the press conference, uh, everybody would cover it. Um, and he, you know, if, if, uh, I, I used to say, uh, back in the day that, uh, you know, my father was a construction worker with a fifth grade education. And, uh, if he had something to say, he could say it to me,

he could say it to our family at Thanksgiving, but he didn't have access to an audience of the kind that Roosevelt had when he went on the radio. And he couldn't get into the Times as easily as the governor of New York, if the governor of New York held the press conference. as the governor of New York, if the governor of New York held the press conference. So, you know, it isn't different in that respect. I'm not too worried about a president not having access to a public audience. A president has tremendous power to attract attention. And that was true 100 years ago. What I'm worried about are ordinary people.

What I'm worried about are people like you, people who have something to say, but their freedom is that they get to say it in the closet where nobody hears them. where nobody hears them. You know, there's an interesting story, a real case that happened in the 60s when James Meredith, who was the first black person to enter the University of Mississippi, was shot on his first day there. And it was a real outrage.

It was in the early 60s. And a man named Sidney Street, a black guy living up in Harlem in New York, was so angered that, you know, he wanted to say American ideals, American principles of liberty and equal rights have just gone up in smoke today. of liberty and equal rights have just gone up in smoke today. And if he had stood on a street corner at 145th Street in Harlem and stood up on a soapbox and said that, the only people who would have heard him were a few dozen people who passed him on that street corner. So what he did is he got out in the street corner and he burned an American flag. It was his flag. He owned it. So he wasn't destroying anybody else's property. He burned the American flag. And by burning the American flag, he attracted television cameras, which his words by themselves would not have attracted. So the television cameras came and he got to say, I'm burning this

flag to symbolize the fact that if a guy like James Meredith can get shot just for going to school, America's ideals have gone up in smoke. And he got onto the six o'clock news and millions of people heard his words. And he was prosecuted for burning the flag, which was a crime at the time. And his case eventually went up to the Supreme Court and the Supreme Court overruled it and said it was symbolic speech. But the reason that I'm telling that story is that it demonstrates how before there was an internet, people had to figure out dramatic things to do to get their message to more than a handful of people. And that's why, you know,

Benjamin Spock burned draft cards. That's why Sydney Street burned the flag. That's why there were demonstrations instead of just words. And, you know, it worked all right for some people. But for the most part, most people could not get their messages out to large audiences until the Internet came. And so even with Twitter and Facebook acting as gatekeepers in ways that trouble us because we don't know what the limits are, we don't know what the standards are, and we don't know why we should be having

these private people decide who gets to hear what. But even with that, the ability of ordinary people today to reach huge audiences with whatever it is they want to say is much, much larger. I mean, by orders of magnitude larger than it was 30 or 40 or 50 years ago. Unquestionably. But it just concerns me when a corporation has the ability to dictate, even if it's a problem president, even if it's someone as crazy as Trump, just when a corporation has the ability to dictate, even if it's a problem president, even if it's someone as crazy as Trump, just when a corporation gets together and they decide that this guy can't use their platform anymore, a platform that hundreds of millions of people use.

It just seems very strange. Well, it is a problem because there are no standards. Right. Well, it is a problem because there are no standards. And that's what I mean when I say we're just at the beginning of thinking about how to do that. I mean, here's what I see as the issue. to make these decisions in the same way that you allow the Times and the Washington Post and television networks to decide what they publish, then you run the risk of arbitrary exclusions from people's speech reaching large audiences, not just the president, who has alternative means, but ordinary people. The only way to remedy that is by law.

The only way to remedy that is to give the government the power to regulate what these corporations can do. And all of our history shows that if you give the government the power to regulate speech, you're going to be in a lot worse shape than if you allow the private sector to do it. Because who in the government are you going to give that power to? You're going to give it to Trump?

You're going to give it to Giuliani? You're going to give it to Trump. You're going to give it to Giuliani. You're going to give it to Joe McCarthy. You're going to give it to Roosevelt during the war, who might have barred Japanese Americans from speaking to large audiences. I mean, who are you going to give that power to? And our entire history shows that the only way to regulate private power is through government power. And if you regulate speech through government power and you give the government the power to decide who gets to speak and who doesn't get to speak, we will be in far worse shape than we are in having the private sector do that. That's the dilemma, I think, that we fix. Wouldn't another option be make some sort of a law, instead of having the government regulate who gets to speak and not to speak,

make some sort of a law that distinguishes or makes a distinction, like what is Twitter? What is YouTube? Is it a public square? Is it a place where people should have the freedom to discuss, just like we have the right to use the electricity. There's certain utilities that you have a right to use those. Well, that's my inclination. That is my inclination.

My inclination is that the best way to think about it may be to think about it the way we think about the telephone company. The telephone company supplies the wires and the mechanism for you and I to have conversations and for us to have conference calls with hundreds of people on those calls. And they don't have anything to say about what we say. They don't have anything to say about what we say. They don't have anything to say about the content. You and I can get on the phone and discuss anything we want, say anything we want. And the telephone company simply is supplying the wires.

I think that that is the best way to start thinking about this problem. Now, there are differences because the difference is that on Twitter and Facebook, you're not having a private conversation between two people or even a private conference call with hundreds of people on it. You're having a public discussion and everything. It's like having a party line with the entire population being on the line listening in. So there are differences that you have to think through. But I think that that's the right way to start thinking about this problem, yes, as a public utility. Yeah, what do you think about – I mean now there's this other app called Parler that apparently right-wing people favor, and it was more of an uncensored free speech app. And some people had said some bad things on that. So Amazon decided to pull it.

Facebook pulled it, or excuse me, Google pulled it from their Play Store. Apple pulled it from the App Store. My fear is that even if someone's saying something problematic, if you shut it all down and only have one side of the argument represented, and in this case it's mostly the left side of the argument is being represented online in these forums, that you're going to – the polarization is going to get even more potent than it is already. Yes. Well, I think that's right. You know, the mistake that people make in silencing speech is that they think that those speakers go away because they can't hear them anymore. But those people are not going away and they still have the opinions that they had. And if they're not speaking in public, they're still speaking and they're speaking to each other and they will find ways.

And suppression has never worked. The issue about alternative sites like Parler is why should Amazon, which basically is functioning as a host, why should Amazon have the discretion to decide that Parler can't exist anymore? And the answer to that might be, well, you know, if you have, again, going back to what you said, if you have the utility model, then you don't have to ask anybody's permission to make a phone call. They can't tell you, well, we're not hosting your phone system anymore because we don't like what you're saying on it. They're not even supposed to listen to what you're saying on it.

saying on it, they're not even supposed to listen to what you're saying on it. And, you know, I don't know if it's possible, for example, to have, literally have public utilities that can host systems like Parler or Twitter or Facebook that are not subject to private discretion, that are really public utilities. Of course, you're not going to get rid of the problem entirely then, because you'll have a commission, a government commission, that regulates these utilities the way you do with public utilities now. And what's to prevent that government commission from functioning in a censorious way, according to

who's in charge. I mean, it's not really possible to rid yourself of the problem entirely. It's only possible to contain the problem. And I still think that the most dangerous thing we can do is locate the power to decide who should speak with the government. I think that that is the single most dangerous thing that we can do. But moving in the direction of a content-neutral public utility model for all matters of speech is, I think, the right way to begin thinking about it. all matters of speech is, I think, the right way to begin thinking about it. Yeah, I would agree with that. I don't know how we get ourselves out of the mess we're in currently. You've always been a staunch advocate for free speech, even when that speech is hate speech. And that's a very, it's a difficult argument for people to have in this day and age,

because people want to ban hate speech they want to ban people from talking you've always been an an advocate for free speech and saying that like even though it seems like it's a good idea to ban these ideas or to ban people discussing these things in fact it actually turns out to be a terrible idea well you, when people say they want to ban hate speech, what they mean is they want to ban the speech that they hate. Yes. But if you allowed something called hate speech to be banned, then the only important question would be who decides. Then the only important question would be who decides. And again, if the government is going to be the one to decide what hate speech to ban,

it's not going to be the same speech as the speech you hate. It's going to be the speech they hate. Think if, again, for liberals who are very hot these days about banning hate speech, what they mean is they want to ban speech that is bigoted against people based on skin color or based on sex or based on religion. That's what they mean by hate speech. But what I always ask liberals is, well, What I always ask liberals is, well, what makes you think you're going to have the power to decide what's hateful? You're never the ones who are going to have the power. What would happen if the guy who decided what speech to hate and ban was Joe McCarthy? He would have banned your speech. What if it was Giuliani who tried unsuccessfully when he was mayor of New York

to ban art in the Brooklyn Museum of Art that he didn't like because he thought it was disrespectful of his religion? And he hated that speech. Now, the speech he hated wasn't the same speech that I hated. The speech he hated wasn't the same speech as liberals or progressives hated. But he was the one who got to decide, not they. And that's the problem. That's really why hate speech cannot be a category that is allowed to ban because it all depends on who's going to decide and what they hate is not going to be the same as what you hate. In the 1990s, there was a big move on a lot of college campuses to ban hate speech. And what they meant by that is they wanted to ban racist speech.

And a lot of black students were in favor of it. And I was then the head of the ACLU, and I used to go around speaking to these audiences. And I had a very substantial reputation as being an advocate for racial justice and affirmative action and all that. So I was sort of on their side, and they knew that in terms of the substance. But I didn't preach to them about the First Amendment. I used to ask those black students, if you succeed in getting your university to ban hate speech, what do you think is going to happen next? Do you think you're going to be the ones to decide, or do you think the board of trustees is going to be the ones to decide? And the board of trustees are white, and the board of trustees don't share your politics.

And the truth of the matter is, if there had been hate speech codes on college campuses in the 1960s, their most frequent victim would have been Malcolm X, not David Duke. And the kids would look at me like they had never thought of it that way. But that's the problem. The problem is always who gets to define what's hateful

and who gets to decide what to ban. And it isn't often going to be the ones who advocate for these codes. You know, the same thing happened in England in 1973 when the National Student Union banned hate speech, banned racist speech from college campuses in England. from college campuses in England. And a group of Zionist kids who were among the leaders of the national student movement at the time were all for that. And then a few years later,

a very few years later, the students changed. There were different students deciding, and they decided to ban a Zionist speaker on the grounds, they said, that Zionism was a form of racism. Well, the Zionist kids who had supported those hate speech bans,

they didn't think that Zionism was a form of racism. But a few years later, a majority of the National Student Union did so think. And so the very hate speech bans that these kids supported ended up being used against their own speakers. There are hundreds of examples like that. And the reason why these bans don't work is that nobody can define what hate speech is, and it all ends up coming down to who decides. And most often, it ain't you. Yeah, I mean, I can completely understand the position that a social media company would have, where they wouldn't want to have what they consider hate speech on their platform because they think it reflects poorly

on them and they also think that it um it radicalizes young people it gets young people to to think along the same lines if they're very charismatic and they're enticing they could get young people to join what they believe are hate groups. So is the solution just leave everything up and let everybody just kind of duke it out in the town square of ideas? Well, I think so. And the reason I think that is that the only alternative is to give somebody the power to decide what should be excluded from the town square. And who is that somebody? I don't think you can get out of that dilemma. At the very beginning of our history, when the First Amendment was first invented, we all learned in school that people like James Madison and Tom Jefferson and

the rest of them were all these super advocates of free speech and First Amendment, but they weren't. A lot of them believed that the First Amendment did not protect false speech because the same way that people now about hate speech is, well, what is the virtue of false speech? Why does false speech contribute anything to a rational discussion? How does false speech enhance democracy? So there was largely a consensus at the end of the 18th century when the country began, there was largely a consensus, even among the fiercest advocates of free speech,

that false speech was not protected by the First Amendment. Then, under John Adams' presidency, the second president of the United States, they passed something called the Alien and Sedition Acts. And this was a federal statute that Congress passed, and it made it a crime to say false things, critically false things about the president. And the problem was, is that it was the president who decided to whom that law should apply.

So it ended up that people who were critical of John Adams, including a member of Congress, including several editors of newspapers, including lots of people, they were arrested and convicted and sent to jail under this. And why did that happen? It happened because the people in charge said that their speech was false. The speech of the people that they prosecuted. And, you know, when people think of true or false, they think of things like, well, if you say two plus two is five, we know that two plus two is four.

So two plus two is five is false. But in the world of politics, almost everything can be interpreted as true or false depending on who the speaker and who the listener is. Look at what just happened with our elections. 70% of people among Republicans believed that the election was fraudulent. Now, you can argue about whether that's true or whether that's false, but do you really want to make it a crime for people to say that the election was fraudulent? You have to fight it out. You have to duke it out. Otherwise, you're going to end up using these bans as weapons to use against people you don't agree with by simply claiming that what they said was false. That was the history in the early part of the American experiment. And the same thing is true today about hate speech or bigoted speech or any other kind of speech.

You know, the price we pay for having the freedom to speak and listen and argue is that some of the stuff we have to hear is ugly. And it's like an insurance policy. And what we're insuring against is if we don't want to hear the ugly speech, if we want to ban ugly speech, we give the government the power to decide what's ugly enough to be banned. And then we'll lose our own rights to free speech for sure. And I don't think there's any way out of that. It's not intuitive. You know, I used to say, I was a kid who grew up in the streets of Brooklyn. If somebody called me a dirty Jew or insulted my mother or anything else, I mean, there were two responses. You didn't argue with, I didn't know about free speech when I was 11 years old on the streets in Brooklyn.

If somebody insulted you or said something bigoted to you, you had two choices. You punched them out or you ran if they were bigger than you or there was more of them than you. Free speech is an acquired taste. It's something you learn about later. taste. It's something you learn about later. It's something I didn't understand really until I got to the ACLU and began to come to grips with these kinds of problems we're discussing now. Was it an easy thing to come to grips with or did you go back and forth with it?

No, it's not an easy thing to come to grips with because it's not intuitive. The first time I saw people from the Klan talking or neo-Nazis talking, my first instinct was I wanted to take a club and beat them over the head. I mean, how could your first instinct not be that? I mean, how could your first instinct not be that? But I began to see that the consequences of that was to give the government, which was often going to be in the hands of people that didn't like what I believed, the hands of people that didn't like what I believed, to give the government the power to decide who to beat over the head and for what speech.

And I began to see pretty quickly, as you come to grips with these in real life cases, that if you give the government the power to decide what speech is ugly enough to be banned, it will as often be your speech as it will be the speech that you don't like. And that powerless people, people who are discriminated against, black people, women, gay people, Jews, Muslims, political minorities, political minorities, socialists, communists, whatever. Those are never the people who get to decide what speech to ban. They are the victims of the speech bans because the people who get to decide are more often, as I keep saying, more often going to be people like Joe McCarthy

and Richard Nixon and Trump. And why would we want to trust, why would right-wing people want to trust their speech rights to Bernie Sanders, say? And, you know, this doesn't often just break down on liberal conservative lines. I mean, remember that in one of the worst atrocities of civil liberties that this country has ever seen, American citizens of Japanese descent, these were not aliens, these were not immigrants, these were American citizens of Japanese descent, citizens of Japanese descent, not one of whom was ever charged with anything criminal or with anything treasonous or with anything traitorous. 120,000 of them were plucked from their jobs and their homes and their businesses and sent off to camps for the duration of the war for no other

reason than they descended from Japanese people. And this was done by Franklin Delano Roosevelt. So the fact is, you can never trust the powerful with your civil liberties. That's true about speech, and it's true about all civil liberties. true about speech and it's true about all civil liberties. Power is the antagonist, not Republicans, not Democrats. Power is the antagonist. And whoever has it is a danger to civil liberties if they're not restrained. And one of the restraints is in the First Amendment to the Constitution, which says Congress shall make no law that abridges speech. Now, you know, no law means no law. It doesn't mean some laws, and it doesn't mean, oh, well,

bad laws they can abridge, but not good laws, because you can't trust what they decide is good and what they decide is bad. So, yeah, I think, I do think you've got to duke it out with words. And the line between what's permissible and what's not permissible needs to be between speech and conduct. That mob in Congress in the Capitol building the other day was free to stand out there and chant and say anything they wanted. And no matter how hateful it was, what they didn't have the right to do was to break into the building and cause mayhem and injure people and break into offices. That's conduct. That isn't speech. Now, that kind of conduct expresses a point of view, but it's not the sort of expression that the First Amendment protects. We used to represent at the ACLU almost all the abortion clinics in the country. And at the same time, we used to defend a lot of the people who demonstrated against abortion outside those clinics.

And some of those people said the most hateful, horrible things to women going inside. those people said the most hateful, horrible things to women going inside. Baby murderers, and they screamed very ugly things to them. We defended them. What we didn't defend is when they threw a bomb through the window of an abortion clinic. What we didn't defend was what they shot doctors who worked at the abortion clinic. Now, throwing a bomb through the windows of an abortion clinic expresses an opinion. But that form of expression is not what the First Amendment protects. The First Amendment protects your right to stand outside the clinic and yell, baby murderers, baby murderers, all you want. It does not protect your right to throw a bomb through a window

or physically prevent women from going into the clinic as they wish. And that's the distinction that you have to try to draw. Not between the words that are ugly and the words that are not ugly, but between the words and the conduct. Now, when the case of Donald Trump, the argument with Twitter gets even more complicated because it's not necessarily the things he said. It's what he was inciting people to do. Yeah. Because it wasn't just his opinions on things. He was calling for action. He was calling for

them to be strong. you have to be powerful you got to march down there and show them he was inciting them it's a very different thing so when twitter steps in and says okay enough is enough they're essentially stepping in because he he mind. He inspired action. Yes. Well, incitement is the hardest. It's the right test, but it's the hardest test for the First Amendment. I'll tell you why. The history of incitement is that during World War I, for example, there were people who were against America's entry into World War I. This was around 1917, 1918. And there were people who distributed leaflets opposing the draft.

That's all the leaflets did. They didn't threaten anybody. They didn't incite anybody to violent conduct. They just spoke out against the draft and tried to get other people to oppose the draft. to oppose the draft. They were arrested and charged with inciting insurrection, because suppose people listened to them, and supposing people resisted the draft, and suppose people physically attacked the draft boards. So they were arrested and charged with incitement to illegal conduct just for their license. Case went up to the Supreme Court. The Supreme Court agreed. And some people went to jail for doing that.

And that was called incitement. And in mid-1960s, 65, 68, some high school students went into school one day wearing black armbands as part of a national demonstration that day. It was called National Moratorium Day. It was an anti-Vietnam War demonstration. They didn't say anything. They didn't say anything. They didn't do anything. They just wore black armbands and went to classes. The principal suspended them from school on the grounds that the black armbands were an incitement to violence.

That case was overturned by the Supreme Court. So the word incitement has not had a great history. But eventually, also in 1969, in a case called Brandenburg, the Supreme Court said that incitement has to be imminent, it has to be explicit, Incitement has to be imminent. It has to be explicit. It has to be part and parcel of igniting conduct. It can't be speculative.

You can't say, oh my God, this speech is so bad, it might incite some people to do something illegal. It has to be connected in an explicit way. And the example that I always used to use is, if somebody is standing outside a jail with a crowd, a large crowd of people with clubs and guns, and saying they want to get the guy who is inside that jail and lynch him. And, you know, the sheriff is standing on the steps and saying, no, you know, he's awaiting a trial. If he's tried and convicted and sentenced, that's one thing, but you can't, the crowd, no, he's awaiting a trial. If he's tried and convicted and sentenced,

that's one thing, but you can't, the crowd, no, you can't come in. And the guy who's at the head of the crowd has a torch in his hand, and he says, let's lynch the bastard, go! And the crowd goes forward, and they break into the jail, et cetera, et cetera, et cetera. He can't claim that his words, let's lynch the bastard, go, were protected by the First Amendment

because that speech was an incitement in an imminent way. It was part and parcel of the prohibited conduct. So the question, that's what the law is now. It wasn't always what the law was. The issue of incitement has a long, sorry history of being used against speech, which everybody would think is protected by the First Amendment now. Even this more conservative Supreme Court would unanimously support the right of people to distribute leaflets being against the draft. That didn't happen in 1918, but it would happen now. So the question of incitement now is really defined by that

1969 Supreme Court case. It has to be imminent. It has to be really kind of explicitly tied to the conduct. Now, the question then under that standard is, does Trump's word satisfy that? Now, does Trump's word satisfy that? Well, arguably they do. I mean, he got up there. He spoke to this angry crowd. He riled them up. He said, you have to fight.

You have to take this into your own hands. You're going to lose our country if you're not strong. Congress has to be stopped from certifying this fraudulent election. Go get them. I mean, that's basically what he said. And then they turned around and they broke into the Capitol building. So the question is, was what Trump did sort of, you know, So the question is, was what Trump did sort of, you know, symbolic rhetorical speech that is protected by the First Amendment? Or was what he did more analogous to the guy at the head of the lynch mob whose words kind of triggered their action? action. If it's that, then he can be indicted for criminal incitement. That's what they're trying to impeach him about. That's what the impeachment article accused him of that they

just passed yesterday. So that's really the question. And and, you know, from what I've seen, I think that that what he said was incitement. And it was an incitement that's not protected by the First Amendment. Does that make him criminally liable? So do you think he could be criminally liable for the attack? He could. He could. You know, with the president, they want to get him out of office and they want to bar him from ever running again. And that's what the impeachment effort is about. It doesn't have to be criminal in order for it to be impeachable. but if he were not the president, if he were not a public official, if he were a private individual making that speech in front of that crowd and he said exactly,

that private individual said exactly the things that Trump said and the crowd then turned around and stormed the Capitol building, yes, he could be indicted for incitement. And his defense would be First Amendment. But I don't think that that would be successful. It's certainly a very interesting test case, isn't it? It is.

To see this happen the way it's happening? It is. And you got to be careful here because, you know, liberals, and I count myself as one of them, are so anxious to get Trump to this. to make sure he can never again occupy a position like this, that I'm nervous that the definition of an incitement will be broadened and loosened to cover speech that is in fact should be protected by the First Amendment. It took us 180 years before the Supreme Court finally decided in that Brandenburg case in 1969 that incitement should be defined narrowly enough so that it is unmistakably a part of legal conduct and not speech that should be protected by the First Amendment, no matter how inflammatory that speech could be.

It took us a long time to get to that standard that is speech protective. And I worry about the politics of the moment and the anger, legitimate anger that so many people have about Trump, broadening the definition of incitement so that it ends up being a backward step from that 1969 Supreme Court case. And I hope that that doesn't happen. As far as I'm concerned, As far as I'm concerned, I think he should be convicted under this impeachment article. But maybe there are things he should be indicted for that have to crime of incitement if he is convicted under the impeachment clause. I think that would probably be protective enough.

So you think that even though you could argue that he incited those people, you don't think he should be convicted for that? I think he should be convicted under the impeachment process. I don't think it's necessary that he be indicted criminally afterwards. He could be. I mean, your question to me is, do I think that the Brandenburg standard would permit a constitutional indictment of him under incitement. I think it probably could, but I'm nervous that when that got appealed, if he were convicted to the Supreme Court, the Supreme Court might loosen the definition of incitement in a way that would be injurious to freedom of speech in general. Yeah, that's the slippery slope, and that's one of the problems with a guy like Trump,

because he's so polarizing, he's so problematic, that people want to do anything they can. They'll cut off their own nose to spite their face. And if we really do tighten our grips on what's incitement and what's protected and what's not, it could eventually bite everyone's ass. Yes, that's exactly right. I mean, you know, the lesson that that documentary, Mighty Ira, that Fire made recently about me and part of my career at the ACLU.

That's the exact lesson in that film, that you have to be very, very careful about not bad cases with really ugly speech in it to end up weakening the rights of free speech of all of us. And you know there's an old saying among lawyers that bad cases make bad law and that's what we're talking about because you know the truth is in the area of the First Amendment and that's what we're talking about, because, you know, the truth is in the area of the First Amendment, and that's what the documentary shows over and over again, is that the first target of speech restrictions is nevertheless. And that when the government gains the power to restrict some really bad speech that you don't like, it also gains the power to ban your speech. And, you know, sometime in the 70s, I was invited onto the Phil Donahue show, which was then the most popular and widely watched talk show on television. And the issue was the ACLU's defense of the free speech rights of the Klan in Georgia to march. There was no question of them being violent at that time. They were just

marching, having a demonstration in Atlanta against school integration. And a lot of us who had fought for school integration and had opposed segregation hated everything that they said. So why did we defend their rights to say it? And the reasons were is because we didn't want the government to gain the discretion in their case to ban speech that the government didn't like because we knew that if they gained the power to ban the Klan speech today,

they will also gain the power, the discretionary power, to ban some other speech tomorrow. invited a man named Hosea Williams onto the show, thinking that he would be the one who would argue with me about it. He was a lieutenant of Martin Luther King Jr.'s and a prominent civil rights advocate of the time. And to Phil's surprise, and the audience's surprise, after I finished explaining why I thought we had to defend the free speech rights of the Klan, Phil turned to Hosea Williams, and Hosea Williams said that he agreed with me. And everybody was sort of startled. And he said, and I'll tell you why. He says, because I know the government in Georgia.

I know the police in Georgia. I work there all the time. And if they get the right to stop a peaceful march by the Klan on Monday, they will use that power to stop me from organizing blacks to register to vote on Tuesday and Wednesday and every day thereafter. And I would rather allow the Klan to say their hateful things than to give the government the discretion over my speech. And that's the argument. That is the argument.

And, you know, in today's day and age, a lot of what we're talking about is not really the government censoring speech, but social media censoring speech. And you're seeing a lot of people on social media that disagree with certain folks that want them censored or want them de-platformed. Does it frustrate you to have had these arguments and made these eloquent arguments over years and years of discussions of the importance and the significance of free speech and that the best way to combat bad speech is with better speech is with right with with clear clear arguments but these there's so many people today that want the quick fix like with everything in life they want a pill to make you lose weight and they want de-platforming

to silence their critics or silence the the that they disagree with, silence their opponents? Well, you know, there's a tremendous human instinct to believe that if you don't like something, the best thing to do is to pass a law prohibiting it. And it doesn't work that way. I mean, it didn't work that way with alcohol in the 20s and 30s. It didn't work that way with drugs in the last 40, 50 years. And it doesn't work that way with bad opinions. Because at the end of the day, you still have to give somebody the power to decide what to prohibit. And that person is not likely to be you.

You know, I used to be asked all the time when I was at the ACLU whether or not it's frustrating when you spend so much time arguing for the right of free speech that so many Americans, such a majority of Americans, don't agree with you. And my response always was, no, no, no, no, no. I think everybody's in favor of free speech, so long as it's theirs or people that they agree with. The only speech that people don't want to hear is speech that they don't like. A speech that they don't like. But the lifeblood of the country depends on listening to what you don't like. Because if you don't listen to what you don't like,

then pretty soon you're going to be the one who's barred from speaking. Restrictions on speech, you know, are like poison gas. It seems like, wow, this is a great weapon I have when I have that son of a bitch in my sights and I have the gas and I can stop him. So you shoot the gas out and then the wind shifts. And the political winds always shift. And pretty soon the gas is blown back on you. And that's the nature of speech restrictions. And that's true no matter who's doing the restricting.

Now, would I rather have those restrictions carried out by the private sector than the government? Yes, I think that's less dangerous. Can the private sector so restrict speech that it basically means that the only people who can speak are the people who have access to money and the means of utilizing the mediums? Yes. That's always been the case, though. I say again what I said before. When I grew up, if you didn't own a newspaper or a television or radio network, you didn't have much right to speak network, you didn't have much right to speak except to the people right around you. The internet changed all of that. But when more people have the right to speak, more people who say ugly things are going to get to speak. And they're going to get bigger audiences, which is what happened. And then everybody is going to say, oh, this is terrible. This is terrible.

We have to stop that. But who's the we who has to stop that? And how do you stop it? And I think that that's, you know, the ongoing dilemma. People have always confused the right to speak with the support for the content

of what people say. The biggest problem I always had at the ACLU is if we defended the rights of communists to speak, people thought we were communists. If we defended the rights of racists to speak, people thought we were racists. And that's not the same thing. Somehow, sometime, the people of this country have to understand it's not an easy thing to learn

because as I said, it's not intuitive. People are going to have to understand that they are protected when they protect the rights of their enemies to speak. And that they are in danger when they support restrictions against their enemies. Because you can't limit those restrictions, and you can't trust who's going to be in power to enforce them. to enforce them. And so the price of our free speech is to be insulted by the ugliness of speech we hate. And there is no way out of that dilemma. And if anything good comes out of this

horrendous period that we've just lived through and are still living through, horrendous period that we've just lived through and are still living through. I hope it's that people come to understand that. I'm not very confident of it because I've been tooting that horn and fighting this fight for many decades. And it's the hardest thing for people to understand. You know, in the documentary, Mighty Ira, that FIRE made, it shows me and Ben Stern, the survivor of six or seven concentration camps, sort of being very affectionate with each other and becoming friends at the end of our debates about whether or not the neo-Nazis should have had a right to march in Skokie where he lived. And I spent many hours talking to him when we first met, and I can't say that I convinced him of the kinds of arguments I'm making now.

But I did move him a little to understand that the proper remedy for the neo-Nazis coming to demonstrate in Skokie was the remedy that he finally undertook. He organized 60,000 people to come and march in opposition to them. And they were so intimidated by that that they never came to Skokie. Now, they tried to ban the neo-Nazis from coming to Skokie, and they lost in every court that considered the case. Because if you're going to allow a town to ban neo-Nazis in Skokie, then you have to allow a town in Alabama to ban Martin Luther King Jr. So the courts always struck down those kinds of bans. So the effort to Skokie to keep the neo-Nazis out failed in terms of a legal prohibition. in terms of a legal prohibition.

But when Ben Stern organized 60,000 people to demonstrate in opposition to them, when he counted their bad speech with better speech, they faded away and they never came because they were cowards. They were bullies. And I think what people are afraid of today is that the hate speech does not seem marginal. It does not seem aberrational. It does not seem like 20 or 30 crazies. It seems overwhelming that one of the things that Trump stirred up were millions and millions of people who want to take their country back. And what they mean by their country is they mean white, male, Christian.

They're against Muslims. They're against Jews. They're against blacks. Many of them are against women. They're against Muslims, they're against Jews, they're against blacks, many of them are against women, they're certainly against gays, and there's lots of them. And so there are a lot of liberals who are now saying, well, but this isn't just 12 crazies, you know, which was what we had in the Skokie case. These are millions and millions and millions of people, and we've got to stop them. And there isn't any way to stop what they think, and there isn't any way to prohibit them from speaking. And if you give the government the power to prohibit them,

the government will as likely prohibit you as them. And the answer is the election. You know, the answer to people like that is what Stacey Abrams did in Georgia. She didn't ban the people who hated her. She out-organized them. She registered more people to vote. She went door to door and turned those people out. She won elections. I mean, let us not forget, from all the bluster about the election and worrying about the 74 million people who voted for Donald Trump, that he lost that election by 7 million votes. 7 million votes. 7 million votes. And what that election was, was a referendum on racism. It was a referendum on authoritarianism.

It was a referendum on American values. And Trump lost that election. And that should encourage us. Giving people like Trump the power to ban speech will be used against us. Outvoting people like that, which requires freedom of speech because it means you have to be able to talk to people,

you have to be able to leaflet, you have to be able to organize people people, you have to be able to leaflet, you have to be able to organize people. Those are all First Amendment rights. And that's the only solution to this problem. Do you think... And it won't... Go ahead. Please go ahead.

No, and it won't, you know, it's a slow, grinding, unromantic, difficult solution. People always want that quick fix. But the quick fix doesn't work, and it's dangerous. And, you know, the remedy that happened in Georgia, the remedy that Stacey Abrams and her colleagues pulled off, is the answer to the problem that most liberals and progressives are seeing when they look at the wreckage of Trump's tenure. Do you think there's a danger in generalizing all of Trump's supporters into that group?

Because some of them, some of them clearly just don't like the democrats and their ideas they don't they're they're not interested in kamala harris eventually being president they don't think that joe biden's record is admirable they they look at it economically they think that donald trump is a better candidate for them yeah yeah no i i i i totally agree. You know, 74 million people does not mean 74 million bigots. It doesn't. elections, is that you fall into the trap of thinking that the people who severely, not mildly, severely disagree with you, who would take the country in a very different direction, in a direction that you regard as dangerous, but those people are not your mortal enemy. mortal enemy. You know, I've never been a big Joe Biden fan, but what he said in his acceptance speech after the election was that people who disagree with us are not our enemies.

That's right. If you have a mortal enemy, then you can't be civil to him. If you have a mortal enemy, then you have to hit him before he hits you. But if you regard your opponents as mortal enemies all the time, then you can't have a democracy. And so you have to be careful about that. I mean, I think one of the great, great dangers that we face now is this severe polarization that we have where everybody's in a silo and everybody is, you know, talking to themselves and preaching to their own choirs. And, you know, and in some cases literally think that their opponents are devils.

I mean, you just had a newly elected member of Congress from South Carolina or North Carolina who basically thinks that Democrats are devil worshipers and pedophiles. basically thinks that the Democrats are devil worshipers and pedophiles. And you have progressive Democrats who think that all 74 million of the people who voted against Trump are racist bigots. Too many of them are, but not all of them are. And the real question I have for the voters who voted for Trump who are not racists or bigots is how did they bring themselves to vote for him this time, knowing that this election was a referendum in many ways about racism and bigotry and religious discrimination.

Those are the terms that Trump set. He was the one who turned our politics into a politics of either or. And what I don't understand are people who've been lifetime Republicans who support different economic views than I do, who have a whole lot of different views about politics than I do. But this election was not about that.

And I think that there was something immoral in a lot of those 74 million people who were not racists and bigots becoming complicitous with racism and bigotry by voting for this guy. I was not a fan of Joe Biden's, as I said, I had no doubt that I had to vote for him this time. I have friends who say, yeah, but I'm nervous about Kamala Harris and Joe Biden could die in office and Joe Biden is a one-term president because of his age. And I don't know if I want to vote for that ticket because I'm nervous about Kamala Harris. Well, four years is a long time. Things can change. If you want to oppose Kamala Harris in four years, then you oppose Kamala Harris in four years. But you don't vote for Donald Trump now because a vote for Donald Trump, whether you intend it or not, was a vote for white nationalism and a vote for bigotry and a vote for authoritarianism. But don't you think that there's plenty of other people that don't share that perspective?

And there's a lot of people that don't think of it that way. They thought in for whatever reason, they that donald trump has the america's best interest in mind and that what joe biden represents is politics as usual and he's just going to bring all the swamp creatures back into the washington dc and they were hoping that donald trump was going to fix everything and they will point to the fact that the economy before COVID was doing fantastic, that unemployment was very low and the stock market was booming. They felt like he was making the right steps in the right directions to strengthen the country. To frame it all entirely as bigotry and white nationalism, I just don't think the people that voted for him see that way.

nationalism. I just don't think the people that voted for him see that way. Well, they don't. No, I agree that they don't. And I think that a lot of them, you know, are quite honest about that. And they're not just making up those arguments. They really truly believe that. But I just think as a matter of fact, this election was a referendum on white nationalism and bigotry and authoritarianism i i just think that you know it became that way because those were the terms that trump said and you can tell yourself that you're voting for him for other reasons but But I think as a matter of fact, that wasn't the case. Now, you know, that itself is, I mean, I've had that argument with many people.

And, you know, I have one view, they have another view. Okay, we'll go on arguing. But I think what happened in the Capitol building on January 6th was predictable, was inevitable, was a consequence of who Trump is and what, given the opportunity, he would become. And I know a lot of people who voted for him don't see it that way. But that's the way I see it. my concern is not just those people, but what's next. Trump is still president for the next six days. And what can happen between now and then? Well, a lot.

I mean, there's some talk about some sort of an organized protest, armed organized protest on the 17th. And frankly, that scares the shit out of me. Absolutely. You know, I was saying to one of my sons the other day that Trump losing the election does not end the problem. That the furies that have been let loose are still out there. And they're not going away like you turned off a light switch. And even if Trump himself does not have any strength of leadership left

after these recent events in the coming years, a lot of those people out there are still angry and still believe things that aren't true, still believe that the election was a fraud, still believe. I mean, there was even a member of Congress, a new member of Congress yesterday, who said that on January 21st, she was going to introduce articles of impeachment to impeach Biden on the, I don't know on what grounds. So this stuff is not going away. And we are still going to have to argue it out and fight it out. And you can only hope that instincts of decency and respect for other people's opinions prevails. But, you know, when you have people breaking the glass of your door down and coming in with zip ties, yeah. You know, the time, you can't talk to those people. You have to stop them. zip ties zip ties you know

the time you can't talk to those people you have to stop them and that's what's dangerous I mean these are people who tried to kidnap the governor of Michigan because they didn't like her politically they're still out there yeah not just kidnapped they wanted to murder her right yeah and you know

you're right that is scary as shit do you have a thought as to what you think could pull us back from the brink i mean how does the country move forward and reconcile how do people heal from this well do you think it helps getting him out of office i i do think it helps getting him out of office well because he's the instigator in chief and I also but you know I've said for a long time

I thought the guy who was the worst player in the last four years was not Trump but Mitch McConnell because Mitch McConnell was the accomplice in chief Mitch McConnell knew better Mitch McConnell, because Mitch McConnell was the accomplice in chief.

Mitch McConnell knew better. Mitch McConnell was not instigating violence. But he wanted two things, three things, actually. He wanted to repeal the Affordable Care Act. He wanted to change the tax law to move more money up into the hands of the very wealthy. And he wanted to get the Supreme Court appointments on his side. And he was willing to use Trump to achieve, and he got, he achieved two of those three ends. And he got, he achieved two of those three ends. And in order to use Trump for those ends,

he was willing to look aside at all the things about Trump he didn't like. And now it's jumped up and kicked him in the ass. And now he is talking a different tune. But it's a little bit too late. I mean, the fact is, is that those Furies are out there and they are unleashed and they feel legitimate because Trump gave them legitimacy. And they feel wronged.

And I don't know how you get those people back to where they were. My concern is also that they don't feel like they have a platform for expression. They feel like if they express themselves on Facebook or Twitter or YouTube or anywhere, they're going to be censored. Well, I don't think that's their main grievance. I think the kind of people who were broken to the Capitol building were people who felt betrayed by life in more general ways. I don't think that there was a lot of normality there. if I were the Democrats, is I would speak more focused on the working class people who have sort of been outstripped by modern technology.

You know, the people who only know how to mine coal at a time when there is no more coal to mine. The people who worked in the steel industry when the steel industry isn't there anymore. Those are the people that the New Deal raised up from terrible depression. I knew those people. My father was one of those people, his whole family. They were people without high school educations,

much less college degrees, who worked with their hands. And they were dying in 1935. And the New Deal saved their asses. And they worshiped Roosevelt because of that. And the Democrats walked away from those people, beginning with Bill Clinton. They walked away from labor unions. They walked away from labor unions. They walked away from healthcare. They walked away, they went for global economy, you know?

And those people were never progressive in their politics. I mean, my father's whole family were racists. They were. But they voted for Roosevelt four times because he saved their asses economically. And when Bill Clinton started his march away from those people and undercut the New Deal, away from those people and undercut the New Deal, he left them wide open for appeals by people who were bigots. And that was George Wallace's strategy in 1968. It was Richard Nixon's Southern strategy, as he called it later. It was certainly Reagan's strategy. Those people became what we called Reagan Democrats.

And what happened is the Democrats stopped appealing to them. And they stayed hunkered down, you know, in their two blue fortresses in California and New York. And they appealed to all, you know, the identity politics of women's rights and gay rights and rights for blacks and immigrants and Muslims. Now, those are all issues that I feel very strongly about. But you can't do it in a way that abandons working class people because then you invite them to go over to the other side. And that's what I think has happened. So I think, you know, the politics of people like Bernie Sanders,

you know, everybody calls Bernie Sanders a socialist. He calls himself a socialist. But he has never advocated anything that wasn't advocated during the New Deal days of the Roosevelt administrations. That isn't socialism. Social Security was once called socialism. Medicare was once called socialism. Minimum wage for autoworkers was once called socialism. Nobody thinks of that socialism now. But if the Democrats don't begin to champion the problems of the people who are being left behind as the economy changes, they will make themselves politically vulnerable

to what we're dealing with now. And that's what they have to find a way to do. what they have to find a way to do. Not by giving up their militants for racial justice, not by giving up their militants for justice for gay people, not by giving up their militants for women and reproductive rights, but by adding back into that mix're concerned about the economic death of people who have been left behind by the modern economy. And if I were trying to stitch the country back together again, that's where I would start. Now, whether the Democrats could do that or not politically, I don't know. I think there's a lot of people concerned about the effect that social media is having on both parties, and that the polarization is being accentuated by these algorithms, and these algorithms that are created to sort of highlight whatever you're interested in,

or whatever you engage with. I don't know if you've seen the documentary, The Social Dilemma. Have you seen that? Yes. It's a fantastic documentary, right? And it shows how this genie's out of the bottle and it's not going to go back in, and that these echo chambers, they're just pulling us further and further apart

and cementing people's positions on the left and on the right, on either side. They're picking a team, and they look at the other folks as the enemy. And it seems like it's far worse than it's ever been before and getting worse every day. Yeah, well, that's true. The only thing I would say, so as not to be too completely depressed by it, is that I think it's worse now because I think social media and the internet have enabled it. But it's not as different as it used to be. I mean, again, when I grew up,

there were people who read the Times, and there were people who read the Herald Tribune, and there were people who read the Daily News and the Daily Mirror, and never the twain shall meet. No, New York used to be considered an integrated city. And it was, if you looked at the population of New York City, all told. But in fact, New York was a collection of ethnic enclaves. There were Jewish neighborhoods. There were Italian neighborhoods. There were Irish neighborhoods.

There were Czech neighborhoods. There were German neighborhoods. And they were completely separate. They were silos. The only time that there was violence was on the borderlines, where one of those silos merged with the other. But where I lived in Brooklyn, I mean, people get astonished when I say this. I grew up in Brooklyn in the mid astonished when I say this. I grew up in Brooklyn in the mid-40s. Where I lived in Brooklyn, I could walk 20 blocks, as long as I could walk, in any direction from my building where I lived, and never see anybody who wasn't white and Jewish. Not only would I never see anybody who wasn't white and Jewish.

Not only would I never see a black person, I would never see a Christian person. Not in my school, not in any of the shops, not in any of the parks where I played, not if I walked, as I say, 10 blocks from the hub of a wheel along the spokes in any direction. And the same thing was true in Italian neighborhoods, and it was true in Irish neighborhoods. And if you lived on the borderline where, you know, an Irish Catholic neighborhood bordered on a Jewish neighborhood, there would be issues along the borderline. There would be, but they were usually issues of violence.

I mean, they were not friendly. But most people grew up in New York City in those days in rigidly segregated areas. in those days in rigidly segregated areas. I mean, you know, when I tell my kids and my grandkids these days that I never saw a black person, not in my school, not in any of the shops, not on the movie screens, not even when I went with my parents to the local place to vote, not even when I went with my father to the hiring hall of the union that he belonged to. Never. And, you know, the first black person I saw was the one sitting next to me at Ebbets Field after Jackie Robinson broke in.

And so this silo culture that everybody is attributing to the Internet was there in America well before the Internet. It's not a new problem. It maybe has been accelerated. It's maybe been exaggerated. Maybe it's been made worse. But it's not a new problem. And the real problem of integrating this country across the many lines that divide it is a problem we have always had.

We are a nation of immigrants and there have always been differences among us and we have always tended to be antagonistic toward those differences. And I don't think that that has been created by the internet and by social media. I think it's been accelerated, but it hasn't been created. It's not a new problem.

And it's a problem that we've been struggling with as a country for a very long time. And I think in many ways we've made progress. I think this is a less fragmented community, this country, in many ways, than it was when I was 15 years old. So I'm not pessimistic about it, but I do think it's an ongoing struggle. It's a struggle we continue to have to fight over. And it's a marathon.

It isn't a sprint. It isn't going to go away in a fast, quick way. And we're going to, you know, finding a way to live together across different differences is the problem of humanity. I mean, we have evolved from a system of tribes where if you weren't in your tribe,

then the other tribe was hostile and an enemy and somebody to be feared, somebody to be killed. It's taken us centuries and centuries and centuries to move away from that. And I don't think, as I said, I don't think this is a new problem, and I don't think it's a problem that is going to go away anytime soon, but it's a problem we continue to have to work at. I was once asked as a kid whether I hated antisemitism. And of course, you know, I was Jewish, I grew up during World War II, I knew what was happening in Germany.

How could you not hate anti-Semitism? But for me, anti-Semitism was not special. My passion for dealing with the problems of racial justice in this country came from the fact that I was Jewish. I believe that anti-Semitism and racism against blacks or bigotry against Muslims were all different flavors of the same poison. And that's why I loved working at the ACLU, because that's where it all came together.

That's what I think the film Mighty Ira, that Fyre made, that's what they captured. That it was possible to be in opposition with people like Bill Buckley or with people like Ben Stern, and yet to be friends while you continue to oppose each other and fight in civil ways. We've gotten a long way away from that in the last few years. But I think that we have to start moving on the way back. And I'm hopeful that the change from trump to biden is a beginning i'm hopeful it is as well i i love that expression different flavors

of the same poison because that really is what it is that is yes what what do you think other than this new uh administration coming into office what what other things do you think can be done to sort of hit the brakes on this rapid increase in polarization and this, it seems like, more staunch tribalism than ever? Yes, it does. It does. I mean, that's the scariest part to me. Well, you know, I think—take Congress for an example. I think in Congress there has to be some attempt to separate out the lunatics from the people with sharply different views. You can't be having votes all the time

that are unanimous Democrats for one thing and unanimous Republicans for the other. I was cheered by the fact that in the impeachment vote yesterday, 10 Republicans voted to impeach. Not because I was in favor of impeachment. I was, but that isn't the reason I was cheered. I was cheered by the fact that if you can't reach across the aisle and find some combination of Republicans and Democrats to support similar things, then there's going to be no end to the paralysis and to the anger. And if you can't do it in Congress, where can you do it?

You know, I know people who say, I can't talk anymore to anybody who supported Trump. I just can't talk to them. And my response is, well, you've got to talk to them. Now, you know, you may not be able to talk to the guy who's coming after you with a gun and a wrist tie, but you've got to talk to some people who voted for Trump. And you got to at least reach across in a human way, across those differences in opinion. And those differences may be wide. I mean, I have very different economic policy views from a lot of Republicans who voted for Trump for economic

reasons. But you got to argue about that.'ve got to sit down in a room and talk about that. You've got to do with people like that what you and I are doing now. Because the very contact, the very discussion is humanizing. You know, one of the reasons that Buckley and I became friends was that we were in combat so often. I mean, I was on his show fighting with him so many times and we would fly down on the same plane to where the show was being televised and we would sit around in the green room

before the cameras went on and talk. And we would talk afterwards. And then once in a while, you know, he invited me to dinner at his home. And his wife would be there. And his colleagues from the National Review would be there. And once I took him to a ballgame, as the documentary shows. as the documentary shows. And what those were was that they were attempts

to reach across the divisions of opinion that we had, and that we had till the day he died. I mean, we never convinced each other very much. Sometimes we agreed. We agreed on the insanity of the drug war, but I can't remember too much else that we ever agreed on. We were usually on opposite sides on those debate shows of his. But we were also able to reach across those divisions in personal ways. And what that meant was that we were less likely to see each other as the devil. And given how severe our disagreements were, that was good. It was humanizing.

It made it possible for us to be civil. And I think that that's what you have to do. I mean, the first time I met Ben Stern, I mean, here's a guy in his mid-90s. He survived six or seven concentration camps. He lost his entire family. And I was the guy who was defending the rights of people with swastikas on their arms to demonstrate in the town where he lived. Now, I'm not going to lecture that guy about the First Amendment.

I'm not going to tell him he should not feel the pain and the anger that he feels, him he should not feel the pain and the anger that he feels? Because I know that had I been in his position, I would feel the same way. But we sit together in his kitchen for two hours and we eat food together. And we drink. And we talk about the fact that our common ancestors came from Poland. And we just talk about some personal things before we get into our disagreement. It changes the whole nature of the interchange. And I think people have to start doing more of that. I think part of the function of free speech is you want to invite people to disagree,

and then you want to disagree with them. And what speech is, is a ritualized form of combat that substitutes words for guns and clubs. It's a long, long human evolution. But speech is a sign of progress. And civility is a sign of progress. And to the extent that we have moved away from that in recent years, we have to, all of consciously, explicitly, even if it's against our instinct, step back in that direction. I couldn't agree more.

I just don't know what the path forward is. of the problems that we have in the podcast world is if you have someone on that you disagree with or you think they have bad opinions people be upset at you for platforming that person yeah they don't even think you should talk to them and i always think that's so ridiculous or they'll decide that if you have a right-wing person on your show you are now a right-wing person or maybe even a far right-wing person right they'll miscategorize you no that's exactly and that's that's a that's a problem i mean one of one of the uh you know when when when the people at fire first approached me and said they wanted to make a documentary about my career at the aclu and what i what i agreed to to do it um uh you know I had been retired almost 20 years by then,

and I was happy to be out of the fray. But I said, yeah, well, sure, that would be nice. But I never imagined that they would do as sensational. I mean, these were three young men who had never made a film before. And I never imagined that the film would be as moving as it was. But one of the ways that it was moving is it demonstrated exactly what you just said, that it's possible for people with very severe disagreements

not only to be civil to each other, but to be affectionate with each other. not only to be civil to each other, but to be affectionate with each other. And that even though it didn't change the nature of the disagreements on public policy, it didn't demonize each other, that it was possible to do that. And that's what I think is the lesson that a lot of people got when they saw the film. Now, that wasn't a message that I think we started out to portray in the film, but it was the message that came through. And a lot of people who liked the film liked it for that reason. And I think people are hungry for that. I think people

are tired of the demonization. Now, there's always going to be some people who thrive on the demonization. There's always going to be fanatics and lunatics on both sides of every question who would rather shoot their opponents than talk to them. There's always going to be that. But as long as those people remain a small minority, it doesn't threaten us. It's when that becomes dominant that it threatens us. And I think it's possible to step back from that, but it starts one person at a time. time. You know, it starts with you and I on a blog severely disagreeing with something, and yet not being at each other's throats. It starts one person at a time. And it also has to be a model of how the government behaves. The government is a great teacher. You know, when Harry Truman was president and played the piano, everybody gave their kids

piano lessons. When Dwight Eisenhower played golf, golf became much more popular. And what worries me is that when Trump lied and created fictional realities to live in, a lot of people joined him. And for a lot of people, those fictions are real now. And they have to somehow be weaned away from that. Not by calling them evil and finding some way to rid ourselves of them, but by coaxing them back into the real world. And I think, you know, I think you do it institutionally.

I think Joe Biden has a big responsibility to try to do that and to model that. I think the congressional leaders on both sides have a responsibility to try to do that and model that. But I think we as individuals have a responsibility in our own lives to do that one person at a time. I agree with you. I think there's a lot of people that dismiss the idea that the president, that it's important because they are the identity of the of the country they've a lot of people dismissed that before because they didn't think of it was we had presidents that were statesman-like like obama they they they they spoke well they were very measured and very intelligent and we never had to worry about them when trump got into

position and you you did hear this kind of fiery rhetoric from him and he fought you know and the inspiration that these people got from it was uh not positive it was negative no he became the king of the assholes and the assholes roll up they up. It's like they realize they have a king now, and there's so many of them. Yes. No, that's exactly right. The capacity of the president of the United States, the capacity really of any national leader, to legitimize certain kinds of behavior, to normalize, is very powerful and can be a force for good and can be a very dangerous force for evil. I've been doing a lot of reading in recent years

about Germany in the 1930s. And, you know, that's what Hitler did. Yeah. You know, that is, you know, that's what Hitler did. Yeah. You know, that is when, you know, when he was just before he was appointed chancellor in 1933 by von Hindenburg, the polity democrats and the communists and the people on the left were about 50 percent. And the people who were sort of against the Weimar Republic and wanted to restore a kind of authoritarian government were about 50 percent. And they were at war with each other all the time in the streets. Some of it was violent. Some of it was physical. Some of it, you know, they fought with guns and clubs, but it was pretty much evenly divided.

And then when Hitler got power, and you know, he never won an election, he never, the votes for him were never the majority, he was appointed chancellor by von Hindenburg because von Hindenburg wanted to destroy the Wehrmacht Republic and figured he could use Hitler to do that and that he figured he could control Hitler, which he was wrong about. And so Hitler becomes chancellor. And he changed the country through his leadership. And he arrested his opponents. And suddenly it wasn't 50-50 anymore because the 50 who were against him were in jail. And suddenly the whole country changed. And he became the model.

And he made these inflammatory speeches and these speeches full of hate and scapegoating. And, you know, the next thing you knew, Jews and homosexuals and others were being carted off to concentration camps and it became normal. The problem of what happened in Germany was that evil became normal in such a way that a lot of people couldn't even recognize it as evil anymore. And that's what's dangerous about national leadership.

And to a large extent, that's the kind of change that I think Trump is responsible for in this country. And the only thing that can step back from it is national leadership that shows a different kind of normality. And it's not going to happen in four years. It's a long, long trek. It's a long, long trek. And you know, when I was younger at the ACLU, people used to say to me, you know, this fight for civil liberties is not a sprint, it's a marathon. Well, I came to believe that it was not just a marathon, it was a marathon relay race. And it was a race that no single generation ended. I got on the track decades ago. I ran as hard as I could for as long as I could.

I got off the track and handed the baton to other people. And this November, I had six grandchildren and four children and their spouses. That's 14 people who voted in this election. None of whom were able to vote 30, 40 years ago. So you hand the baton on and people keep running. And you run with the faith that there's a particular place

you want to end up in, but you never get to see that place. You get to imagine that place. You get to visualize that place. And you keep making progress toward that place, but you know that in your own lifetime you're probably not going to ever see that place. Because the span of a lifetime is pretty short in terms of social and political change. I mean, you know, we lament the fact that 50 years or so after the Civil Rights Act passed, there's still racial injustice in this country.

Well, we came out of a history of 300 years of slavery and another 100 years of Jim Crow. And you don't turn that 400 years around in the space of 30 or 40 or 50 years of remedial legislation. It takes longer than that. And Martin Luther King Jr. liked to say that the arc of justice is long, that the moral arc of the universe is long, but it bends toward justice. Well it does. But it doesn't bend evenly. It doesn't bend fast, and it doesn't bend by itself.

It requires all of us to bend it a little bit at a time during the time we have the opportunity to do so, and to have some faith that there will be people after us who will continue to bend it, and that despite the ups and downs of our fortunes, liberty and freedom and individual rights and equal justice will get better, not worse. And my faith in that is not rooted in illusion. There are more rights protected today. There's more liberty protected today. There's more free speech today. There's more racial justice today, as imperfect as all those are, and as long as we still

have to go on all of them. They are all better than they were on the day I was born. They're all better than they were on the day I first came to work for the ACLU. We are a freer country with more rights that are enforceable and more equality of justice than we were in 1920 or 1930 or 1950 or 1960. We tend to measure progress by the brevity of our own lives. We tend to be over-impressed by what's happened in the last four years. But you have to have the longer view.

And you have to proceed in two ways. One, that the progress that we have made encourages us to believe that we can make more progress. And that the progress we have made, as significant as it is, is far from sufficient. In 1920, the year that the ACLU was created was 131 years after the Bill of Rights was passed. 131 years after the Bill of Rights was passed, the Supreme Court had never, in our entire history in 1920, had never, after 131 years,

had never struck down a single law or government action on First Amendment grounds. Never. action on First Amendment grounds. Never. So if you would have asked the people who started the ACLU in 1920, there were only like 40 of them, what their goal was, and they would have said, we're here to protect the Bill of Rights for everyone in the whole country. And I think most of us would have said, are you crazy? Forty of you are going to do that? You're going to protect free speech at a time when after 130 years the Supreme Court has never struck down any government action or law on First Amendment grounds? How are 40 of you going to do that. It was delusional. But in 1981, when I was the executive director of

the American Civil Liberties Union, Roger Baldwin, who was the guy who started it with those 40 colleagues, was still alive. He was 97. And when I talked to him, he looked back upon a time when the progress that we had made in 1981 was unthinkable in 1920. But he was still alive to see it. And I believe that that kind of progress, and it wasn't because the progress was easy, and it wasn't because the progress was even, and it wasn't because the progress was even or steady or not without stunning defeats. All of that happened.

But you know, it's a little bit like a football game. You start out in the shadow of your old goal line. You call a few plays. You get a pass that's successful. You get a run that's successful. Then you get sacked. Then you get run that's successful. Then you get sacked. Then you get hit behind the line. Then you fumble.

Then you play defense. Then you get the ball back. And you just keep driving. And to fill out that metaphor, you know, we started this fight for freedom and liberty and equal justice in the shadow of our own goalposts. And now we're in their red zone. We're almost at their goal line and getting thrown for a few losses along the way ought not to be discouraging. Vince Lombardi, the legendary Green Bay coach, football coach, once said as his retirement dinner, he got up and he said,

"'You know,' he said, "'I never lost a football game.'" People's eyes widened and he smiled and he said, "'Once in a while, time ran out.'" And I always loved that line because I always thought that in our fight for civil liberties, that's a game where time never runs out. You just keep playing. You absorb the losses.

You figure out your strategies. You call better plays. You tough it out. And you realize that the game is long and there's been more victories than there have been defeats. So that's my preaching from the pulpit. Well, thank you for that. And thank you for everything that you've done. And thank you for your, you know, unwavering commitment to free speech. It's one of the things that I worry most is lost on today's youth, the cancel culture and this desire to de-platform people. I really, I worry that that complicated and as you said, non-intuitive way of thinking is going to be lost.

Well, part of it, you know, Joe, is that a lot of the young progressives today. Are progressive, but they're young and they don't know and certainly haven't lived through a lot of history. young. And they don't know and certainly haven't lived through a lot of history. I spoke to University of Chicago audience a few years ago, and I loved the audience when I walked in. They were the kind of thing that I could only dream about 30 years ago. They were men and women, blacks and whites, Muslims, people of all ethnicities. It was a rainbow audience of law school students. And after the question and answer session, they began to ask me about hate speech.

And it was clear that they were in favor. They weren't big fans of the First Amendment. They regarded themselves as advocates of social justice. And they regarded the First Amendment and free speech as antagonists. And why did they regard free speech as antagonists? Because they saw people, so many people around them, speaking hateful, bigoted words.

And they wanted that to go away. They saw that as an impediment to social justice. So I said to them, you know, there's never been a social justice movement in America that didn't require the First Amendment when it began. Free speech is not an antagonist of social justice. Free speech is an accessory to social justice. Look at every social justice movement in America, every one.

Look at the labor union movement, which required the right to leaflet, the right to meet, the right to organize, the right to speak. And when those rights were taken away from them, the unions died. Look at the anti-lynching movement and made it a popular cause, a relatively popular cause. What was her instrument? Newspaper columns, meetings, speeches. All of this required First Amendment protection. Look at the movement for women's right to use birth

control. When Margaret Sanger started distributing leaflets providing women with information on birth control in New York in 1916, she was arrested every other day because the First Amendment wasn't there to give her the right to continue to do what she was doing. There would have been no birth control movement, just as there would have been no labor movement and no anti-lynching movement without the right to free speech. And look at the civil rights movement in our own time, in our own lives. Where would the civil rights movement have been if Martin Luther King Jr.

didn't have the right to organize the Montgomery bus boycott after Rosa Parks was arrested? Where would the civil rights movement have been if people who hated them had the power to stop them from marching in the streets in the South. Where would the Civil Rights Movement and the Voting Rights Act of 1965 been if people didn't have the right to march across the Selma Bridge? John Lewis, who recently died and who ended up a senior member of Congress, ended up a senior member of Congress as a young person in his 20s, was one of the young people who led that march across the Selma Bridge and who had a skull fracture as a result. Nobody was a better symbol of the fight for social justice, racial justice, than John Lewis. But what he said about the First Amendment was

that without the right to free speech and the right to dissent, the civil rights movement would have been a bird without wings, a plant without sunlight or water. He knew that, Martin Luther King Jr. knew it, Eugene Debs knew it, the gay rights movement knew it, Margaret Sanger knew it. And if young progressives today think that they can fight for social justice without the benefit of the First Amendment, they are making a tragic political mistake, a tragic strategic mistake. The First Amendment is the blood life for social justice. And those two are not antagonists.

They are inescapably partners. Well said. Thank you. Thank you for being here. Thanks for doing the podcast. Thank you for your life's work. I really appreciate you very, very much. Well, thanks for having me joe

i appreciate the opportunity to talk to you all right man well take care of yourself okay bye bye