Transcript: Nadine Strossen

My interview with the author of Free Speech: What Everyone Needs to Know

This week in New York City, a longtime defender of free speech was honoured by her peers. My guest on our program accepted the Judy Blume Lifetime Achievement Award at the National Coalition Against Censorship benefit. She returns to the podcast to mark that occasion — and to talk through the big issues of our current moment, including rising antisemitism.

Nadine Strossen is the former president of the American Civil Liberties Union, and a senior fellow with the Foundation for Individual Rights and Expression. Her new book is Free Speech: What Everyone Needs to Know. She also hosts a new documentary film series, Free To Speak.

This is an edited transcript for paid subscribers. You can listen to the interview for free here.

---

TH: Nadine, welcome back to Lean Out.

NS: I'm so honoured to be a repeat visitor, Tara. I'm a big fan. I listen to your podcast regularly.

TH: Thank you so much. And thank you for coming on. I thought it was the perfect moment to have you back on the program. Both because you have quite a few new exciting projects right now, but also because we are at a perilous moment for speech right now — in Canada and the U.S. But let's start with the good news first. By the time this podcast airs, you will have accepted the Judy Blume Lifetime Achievement Award for defending free speech at the National Coalition Against Censorship Gala in New York City. Congratulations, Nadine, and how are you feeling about this honour?

NS: I'm feeling embarrassed and humbled. Even as you said it, Tara. Last year, the award was given to one of my lifelong heroes and a world-renowned human rights champion, Aryeh Neier. Who, among other things, was the executive director of the ACLU when we handled the infamous or famous — depending on your point of view — Skokie case. In the late 1970s, the ACLU came to the defense of a group of neo-Nazis, to demonstrate in Skokie, Illinois, a town that had not only a large Jewish population, but many of them were Holocaust survivors. Aryeh himself was a Holocaust survivor, and he courageously led the charge to defend freedom, even for the thought that we hate. It was an easy victory in the courts of law, because it involved what the Supreme Court has called the core principle of free speech, viewpoint neutrality or content neutrality — that government may never suppress speech solely because of dislike, even loathing, of the content.

So we won all the way up to the United States Supreme Court. But it was a very tough case in the court of public opinion. As it still is today, to defend freedom of speech. And dare I say today, especially, for antisemitic pro-terrorist speech, which unfortunately has been abounding. So Tara, you asked me about my own personal feelings and I immediately segue into the issues. I can't help it. But I was happy and honoured and thrilled to accept the award for one reason only — that I was persuaded by my colleagues and friends at the National Coalition Against Censorship that it would be helpful to their organization and to the free speech cause for me to accept this award. Because then my friends and colleagues come and donate money to the organization. 

But I don't want it at all to be about me. This is about the work that all of the 60 organizations that are members of the coalition, the National Coalition Against Censorship, and the countless volunteers and some staff members who are supporting the work of those organizations — now needed much more than ever.

If I can say: I am active in, and supportive of, many free speech organizations. I have never seen it as a zero sum game. They all do really important work, often in collaboration with each other, always complimenting each other. And sadly, there is too much work to go around. But what is essential about the organizations that I support, including the NCAC and its constituent members, is neutrally defending all free speech rights for all ideas, all people, all topics. That viewpoint neutrality principle that I referred to earlier, as being enforced by the courts. These are organizations that are doing the same in their organizational capacity. So NCAC and ACLU and others are still coming to the defense even of speakers and groups who use their free speech and free association rights to attack civil liberties, including free speech.

TH: It is inspiring work and you set a wonderful example for the rest of us. So, thank you for that. As I mentioned, you have a lot of projects on the go right now. It's quite a moment. You have a new book out, which we'll get to in a moment. You also have a new three-hour documentary film series Free To Speak, which we'll link to in the show notes. And you go on quite a journey for that project. In the first episode, you look back at the Stasi, the secret police of East Germany, and a former political prisoner tells you, “He who sleeps in democracy wakes in dictatorship.” How does this resonate for the moment we are currently in North America?

NS: I would have to say we are always in that moment. Speech, and freedom more broadly, are always under assault, from all ends of the political spectrum. Sometimes the assaults are more dramatic and more vividly violent than at other times. And I think that's certainly true now. As a result of the brutal Hamas terrorist attacks in Israel, we have sadly seen a rampant increase in not only antisemitic speech, which I defend as a matter of freedom of speech — much as I loathe the message. But sadly, we have also seen an increase in speech that even the most ardent free speech defender, including myself, and even more importantly including the United States Supreme Court, would agree is not constitutionally-protected and should not be. 

So thank you for giving me an opportunity to make a point that is so widely unknown. Especially by critics of robust free speech, who usually are attacking a straw person, a caricatured version of strong free speech.

I can't tell you how often I've had to defend against charges that, “America's standard of free speech, and the ACLU, and yours, are so ridiculously absolutist and there are no exceptions whatsoever, and you even deny that speech can do any harm.” The answer is, “No, no, no, no.” The more you learn about free speech jurisprudence — and I'll use the First Amendment in the United States as an example, but I will make this point at the outset. It is not nearly well known enough, the large extent to which the core principles underlying the First Amendment jurisprudence, including that key viewpoint neutrality principle, are echoed in the legal systems of countries around the world. And especially strongly under United Nations treaties, international law treaties that protect freedom of speech. Not coincidentally, the United States played a big role, not only in the drafting of the United Nations documents, but also in their interpretation by various United Nations officials and bodies.

And since those instruments have been ratified by just about every country in the world, I think it's really important to note the surprising degree of overlap between what is the only international free speech law — because we have regional bodies of free speech law such as the European Court of Human Rights and the American system for human rights — but the United Nations treaties are the only ones that transcend regional, as well as national, boundaries. 

Enough on that point, but just when I talk about First Amendment principles, I hope that your audience will understand that they have wide resonance around the world and not only within the United States. But anyway, the more you know about those principles, the more they accord with common sense. Which is probably why they are picked up in international law as well.

Basically, the speech that does the most harm, that is the most dangerous, can and should be subject to punishment. Conversely, the censorship that is the most dangerous and does the most harm is also outlawed. 

So what is the speech that does the most harm? It's speech that directly and imminently causes certain serious specific harm, such as intentional incitement of imminent violence. In today's campus climate, and the larger climate with the demonstrations — and I refer to intimidation of many Jewish students on campus — one subcategory of speech that satisfies what's often called the emergency principle, the speech directly and imminently threatens certain specific harm. One really important example of that, that unfortunately we're seeing the line crossed in too many situations, is what the court calls a “true threat.” The word “true” to differentiate it from the rather loose way we use the word threat in everyday speech. But this is when a speaker intentionally targets a particular audience, an individual or a small group of individuals or identified individuals, and intends to instill on their part a reasonable fear that they will be subject to attack. By reasonable, that means it's objective. We're not talking about an unusually thin-skinned, subjective fear. 

And sadly, we even last week saw an arrest of a Cornell University student. Prosecution by the United States Attorney. The FBI was involved. Local and campus police were involved. Because the student had posted online a series of messages that were not only virulently antisemitic — under the viewpoint neutrality principle that would not have been a justification for punishing them — but when you get beyond the content of the speech and you look at it in its overall context, it did satisfy that context-specific concept of a true threat. 

He specifically identified a relatively small facility on campus, a dining hall that was frequented by Jewish students because it served kosher food. And he specifically said that he was going to bring a gun and shoot people at that facility. So I think that crossed the line to being a true threat. And we've seen accounts of similar incidents, including at my own alma mater, Harvard. There was a widely-circulated tweet that showed a single Jewish student walking across campus being menacingly crowded in upon by a group of pro-Palestinian demonstrators. Now, I'm open-minded enough to recognize maybe that was taken out of context, maybe it was doctored. But based on the evidence that we've seen so far, it certainly warrants investigation as unprotected expression.

TH: There's so many issues to unpack in this current moment. I want to just stay, for a moment, with the film series, because I thought it did such a wonderful job of looking at all the reasons why free speech is so important. I want to just spend a moment on medicine — and an extreme example of dogma and groupthink, and even perhaps vested interests in medicine, that almost blocked a scientific discovery on stomach ulcers that eventually won its two researchers the Nobel Prize in 2005. Tell us a little bit about that.

NS: Thank you so much for mentioning the film again. I am so honoured to be involved in a project, where most of the credit goes to the indomitable filmmakers who traveled around the world, Kip Perry and Elan Bentov. The film was produced by the Free To Choose Network. The episodes come from every single continent, with the sole exception of Antarctica, and involved topics all over the map, including medicine and science. And some of them go back in history. I think that the discovery at issue in this case, it was 20 years before they finally got the Nobel Prize, something like that. 

Before I go a little bit more into the details, I think folks should have this in mind in the context of Covid and all of the debates that we've had about what was its actual cause; what is an effective solution; what are effective governmental societal responses and what are counterproductive?

Those have all been subject — not only to debate and discussion, which is appropriate — but sadly to a lot of repression. A lot of what's now being accepted as at least plausible, if not demonstrably true, was in my country strongly stifled by government and social media as being dangerous misinformation or disinformation. So, it's sobering to look at a past example. Now it's much easier to look back with 20/20 hindsight and say, “Oh my goodness, the scientific establishment, the government establishment, the public health establishment was clearly wrong. How could they have been so wrong?” And it had to do with what the causes of stomach ulcers were. There definitely was financial incentive on the part of the pharmaceutical industry to continue to be putting out certain medications that assumed that it was not caused by a particular bacteria.

Scientists in Australia did experiments. Including one scientist, who injected himself with that bacteria to prove that it was what caused the stomach ulcers. Because the scientific establishment was rejecting his experiments that involved other creatures, the lab rats and so forth. So, he really was putting his own health on the line. And once that was accepted, many years later, it became so much easier to provide a permanent cure. As opposed to in the past, people were just taking, I think they called them acid-blockers. They would just keep taking them forever and they would never actually get rid of the stomach ulcer. For the rest of your life you are paying the pharmaceutical companies for this very temporary so-called treatment. 

TH: Such an interesting example. You also touch on the arts in the film, and it was wonderful to see you cover both comedy and hip hop, two subjects dear to my heart. I raised the arts, because in Canada right now, I would say literature in particular has become dull and dogmatic. I'm hearing from artists regularly that there's a lot of fear and self-censorship taking place. I think people who fail to advocate for freedom of expression in the arts forget that the censorial mood could cut in the other direction. For this film, you look at Kenya in 2018 and a film that was banned there. Tell us about that.

NS: The film was created by a woman director and it was a love story between two Kenyan women. She spoke so beautifully, when interviewed for the film, about how in Kenya, one of the national mottos is love. She said it was fairly rare to see a love story between Kenyan people, as opposed to Europeans and Americans. But never had there been a love story between two women. The film was called Rafiki. It was subject to censorship because homosexuality is very strictly banned in Kenya. [ED NOTE: Earlier this year, there was a legal ruling in favour of LGBTQ+ rights to freedom of association.]

The film shows clips of top government officials just simply pronouncing that this is antithetical to Kenyan values. So, “We support love, but there are certain kinds of love that are illegitimate.” In the United States, and I think in Canada as well, the word censor is kind of a dirty word, right? You would never admit that you're censoring a film. Maybe you'd say we're protecting children or national security. In Kenya, there’s a proud censorship board. And somehow Rafiki  managed to slip past the censors. You had to get prior permission to make a film, and they passed that threshold. The director thought maybe it just slipped through the bureaucratic cracks. But once the film was made, there was a crackdown. They were not able to show it. Except that they did retain a lawyer, who challenged the censorship law and ultimately won a victory that allowed the film to be shown long enough that it could qualify for the Cannes Film Festival. And sure enough, this wonderful Kenyan filmmaker and her cast went off to Cannes, where they were lauded. The film shows Cate Blanchett speaking at the Cannes Film Festival, talking about how moving and inspiring Rafiki was. By the way, in order to be eligible it had to be shown, I think, for one week or two weeks. And that was part of the court victory that they won in Kenya. Every single showing of the film was completely sold out. Which shows something about the futility of censorship. It inevitably draws more attention to the work that is threatened than it otherwise would have received. Which is one of the reasons why it's counterproductive. Because first of all, it is having an unduly suppressive impact there; I'm sure there were many, many more people that wanted to see it than could see it because of the censorial efforts.

But on the other hand, the censors don't win either because they'll never succeed when there's a human desire to convey a message. And that was such a beautiful example. 

I think in this country, in the United States, and probably in yours as well, too many younger people have the luxury of not having faced as much censorship. I was a child, but I do remember the Cold War and the threats against leftist speech. I certainly remember the Civil Rights movement — I was a bit older then — and the repeated censorship, in the most brutal ways, of those who were demonstrating peacefully against Jim Crow and racial apartheid. I think today younger people assume that, “It's only opponents of human rights, and opponents of LGBTQ rights, who are the ones who have unpopular views. They're the only ones who are afraid of censorship.”

So I think it's really important to put it in an international and historical context, and, I would say, even to this day. Even if it is asserted to be for a positive value, right? In Kenya, they're saying, “We're censoring because it's consistent with our view of love.”

But predictably, it disproportionately is going to impact minority voices and minority views. Especially in our democratic governments, where, appropriately, the government is responsive to majoritarian powers and establishment powers. It's those who are dissidents which, in some communities, are those who are advocating LGBTQ rights. 

If I can just give one example from the United States: We have a huge raft of laws that have been passed in the past couple of years at the state level that have restricted curricula and library books in schools and public libraries, but in particular K through 12 schools. Studies, that have been done by very reputable organizations including the American Library Association, show that the most targeted books are those that are written by or about LGBTQ+ authors. So Rafiki, sadly, many Americans may look at it, many Canadians may look at it, and say that, “Thank goodness we don't have those problems in our countries.” But we do.

TH: Indeed. And it's a very worrying trend. I want to talk now about your new book, Free Speech: What Everyone Needs to Know, which is written in a question and answer format. It does such a fantastic job of explaining free speech. I'd like to put a few of these common arguments against free speech to you, as some of them are very relevant to the Canadian context right now. The first one is the argument that free speech is a tool of the powerful rather than the powerless. You've already talked about this a little bit, but break this down for us.