Free Speech vs. Hate Speech : It's Been a Minute with Sam Sanders Roseanne's tweet. NFL players kneeling. The President blocking people on Twitter. These stories are all about the same thing: what is free speech? Who gets to decide? And what happens when one person's speech makes another person feel unsafe? Sam talks to Nadine Strossen, a law professor and former president of the American Civil Liberties Union, about her new book, Hate: Why We Should Resist It With Free Speech, Not Censorship.

Free Speech vs. Hate Speech

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Hey, y'all. From NPR, I'm Sam Sanders. IT'S BEEN A MINUTE. Today we're going to talk about a topic that really never leaves the headlines, a topic everyone has an opinion about but no one can seem to really agree on. I'm talking about speech, specifically free speech and hate speech. Who decides what those things are? When and how are various types of speech protected? And should people be punished for the things they say? These debates have been in the headlines a fair amount recently - Roseanne's tweets followed by the cancellation of her show, the fight over whether NFL players get to kneel at games in protest, a federal judge ruling recently on whether President Trump can block people on Twitter and the seemingly never-ending back and forth over who gets to say what on college campuses.

My guest today has thoughts on all of this, and she is also an expert on speech. Her name is Nadine Strossen. She's a professor of constitutional law at New York Law School, and she was also the president of the American Civil Liberties Union from 1991 through 2008. Nadine has a new book out called "HATE: Why We Should Resist It With Free Speech, Not Censorship." She says the way to fight hate speech is not to legislate it or ban it but to instead fight for even more free speech.

One small warning - in this chat, there are a few strong words because we bring up some terms and slurs that are classified by some as hate speech. All right, here's me talking with Nadine Strossen. She was in New York. I was at NPR in Culver City. We taped this chat a few weeks ago right when there were some really big headlines over NFL players kneeling and Donald Trump's Twitter account. All right, enjoy.


SANDERS: I think this is a topic that so needs to be discussed right now...


SANDERS: ...Because there is a conversation about free speech on the left. And there's a conversation about free speech on the right. And they're two different things, and no one is trying to bridge any of those gaps. And I feel like your book is trying to get to that.

STROSSEN: Well, thank you so much. And what a day. We had two big developments yesterday. I'm not sure if you're interested in talking about those.

SANDERS: Let's start there, yeah. Go ahead.

STROSSEN: The NFL decision and then the Knight Institute lawsuit against Trump.

SANDERS: Yeah. Let's start with the NFL. So the NFL announced this week that players can no longer take a knee during the pledge. That's got some free speech implications, no?

STROSSEN: It absolutely does. Now, I want to be really precise.


STROSSEN: I'll put on my constitutional law professor hat...


STROSSEN: ....And explain something that most people don't know are and are somewhat disappointed when they find out that the First Amendment with its free speech guarantee only applies to the government. So any private sector entity, including such a powerful one as the NFL, is not constrained by constitutional free speech guarantees.


STROSSEN: That said, one can make an argument that they should voluntarily choose to protect such a quintessential patriotic value as freedom of speech - right? - because everything that's being debated here is what is patriotic and what is not patriotic.


STROSSEN: Since when is it patriotic to punish somebody for peacefully, non-disruptively lodging a protest that is consistent with our country's basic values? Sorry.

SANDERS: Yeah, but a lot of people on the other side of this argument say it's patriotic to stand for the Pledge of Allegiance. It's patriotic to stand for the national anthem. It's patriotic to do that.

STROSSEN: Thomas Jefferson said dissent is the highest form of patriotism. In terms of the flag salute, there actually was a very historic landmark decision way back in 1943 in which the - even in the midst of World War II where patriotism was especially important as our troops are off fighting against fascism around the world, the United States Supreme Court nonetheless held that it violates the Constitution to compel people who have any kind of objection to saluting the American flag. In that case, it happened to be Jehovah's Witness schoolchildren who were - had a religious objection to saluting the flag. It violated their understanding of the 2nd Commandment that the flag is a graven image from their religious perspective. And one of the points that was made in a wonderful opinion by Supreme Court Justice Jackson was that compelled patriotism is meaningless. It becomes like dead dogma, like a, you know...

SANDERS: It's like when your mom makes you apologize.


SANDERS: You have to apologize to this person you hit. You don't mean the apology.

STROSSEN: Absolutely. And you know what? Psychologists have said that an apology that is voluntary has a positive psychological and emotional impact on both the person making it and the person receiving it. But guess what? If it's forced, it lacks both positive values - and same thing about what's genuine patriotism. I think the - but the broader point, Sam, which really pertains to my book as well is that these determinations - is this speech patriotic, or is it unpatriotic? These are such subjective matters. And that's why we should not allow any private - any powerful entity, whether it be the government or whether it be a private sector entity such as the NFL - they should not be able to take away from us as individuals our own freedom to make those fundamental choices for ourselves.

SANDERS: Yeah, you know, what's so interesting with that NFL case is - I mean, you said earlier there is a clear distinction between what a private corporation like the NFL can do with its employees and what the government can do when it comes to free speech. But this case blurred the line...

STROSSEN: Oh, you're right.

SANDERS: ...Because we have the leader of the federal government, Donald Trump, stepping in it. And then the other case that was big this week, you know, this ruling on whether or not Donald Trump can block people on Twitter - that is a case that involves the government but also a private corporation. Increasingly the lines between what is private and what is public are blurry, no?

STROSSEN: It is very, very complicated and very interesting. And there's another blur here, which is, Donald Trump by virtue of being elected president does not thereby forfeit his free speech rights...

SANDERS: Exactly.

STROSSEN: ...That he would otherwise have as an individual.


STROSSEN: So to what extent is he speaking as Donald Trump the individual citizen, and to what extent is he speaking as President Donald Trump in his official capacity? Certainly, if Trump had directly threatened that he would take some punitive action against the NFL, that credible threat of a government punishment would certainly implicate First Amendment right because it's government coercion. But to the extent he's just expressing his opinion as to what he thinks the NFL should do, that is his free speech right. And I - you know, it's interesting. Maybe I - reasonable people can probably differ on which side of the line this falls.

SANDERS: Yeah, well, I was thinking the same thing about this Twitter ruling. Basically, a federal judge found that Donald Trump in blocking political foes on Twitter is in a way violating their free speech. Is that what the court said?

STROSSEN: Exactly.


STROSSEN: And here the court looked at just as a very fact-specific matter, how is this particular Twitter account being used? It - and there are so many objective indicators that it is being used in the president's official capacity to convey a lot of information about public policies, even official announcements which sometimes don't appear anywhere else or appear here before they appear anywhere else. And so it becomes the online counterpart of a traditional public park or public sidewalk.


STROSSEN: You know, the quintessential places where we the people can debate and discuss with those we elect to be accountable to us. And Trump - interestingly enough, he and his lawyers admitted - because this case was tried on what's called stipulated facts, the relevant facts were not disputed among - between the two sides. So Trump and his lawyers...

SANDERS: The tweets were there.

STROSSEN: Yeah, yeah, exactly.

SANDERS: The blocking was there, yeah.

STROSSEN: And they admitted that the only reason that the seven plaintiffs were excluded, were blocked from his Twitter account was because they expressed viewpoints that were critical of him. So it's basically saying - you know, exiling dissenters and critics of him and or his policies. They're basically being denied the right to raise their voices in what the Supreme Court has said is, for all practical purposes, the most important arena today for discussing public policy issues. The court made that point last summer in a case that it decided unanimously.

SANDERS: Yeah. I want to talk about the book. It is called "HATE: Why We Should Resist It With Free Speech, Not Censorship." It's a pretty straightforward title, but I want you to explain the book in 30 seconds for our listeners.

STROSSEN: This is an argument that the most effective way to counter the potential negative effects of hate speech which conveys discriminatory or hateful views on the basis of race, religion, gender and so forth - that the most effective way to curb its potential adverse impact is not through censorship but rather through more speech and that censorship of hate speech, no matter how well intended, has been shown around the world and throughout history to do more harm than good in actually promoting equality, dignity, inclusivity, diversity and societal harmony.

SANDERS: I know that a lot of our listeners are going to hear this argument you're making and say, well, that's tantamount to, you know, saying that more unprotected sex will lead to fewer STDs. Like, a lot of people will say the way to stop the negative consequences of hate speech is to get less of it. And if laws can do that, why not?

STROSSEN: Well, first of all, laws cannot do that.

SANDERS: This is a thing that you're arguing, yeah.

STROSSEN: It - yeah, including for reasons that you and I have already been talking about, Sam, which is, hate along with patriotism is an inherently subjective concept, right? Oh, and let me give you a concrete example because here's an example that was - went before the U.S. Supreme Court last summer. The court came out unanimously. But it involved an Asian-American rock band called...

SANDERS: The Slants.


SANDERS: This was a case where the U.S. Patent Office refused to allow a man named Simon Tam and his band to register their band name as The Slants.

STROSSEN: Yes. We had official U.S. government experts who were applying a hate speech provision in the U.S. trademark statute that prohibits the government from giving trademark protection to what it deems to be a term that is disparaging or demeaning on the basis of ethnicity. Well, Simon Tam is Asian-American, as are all of the other members of his band. They - I hope it goes without saying that they did not consider this to be a disparaging term, as they were using it to the contrary. They were reclaiming the term and using it to celebrate their ethnic heritage. And for them, it was a step toward empowerment. So right there...


STROSSEN: ...There's a disagreement.

SANDERS: I mean, I was, you know, I - reading your book, you spent a lot of time at the top basically saying, there is no real one definition of hate speech. It's very hard to define. People define it in ways to advance their political causes. But you do say that there is some speech that is protected. And then, there is some speech that can be punished, right? What's that distinction?

STROSSEN: Exactly. And before I answer that, may I tell you one other thing...


STROSSEN: ...That I recently learned about Simon...


STROSSEN: ...Tam? Because it turns out that he's done several TEDx talks, and I really recommend them to your listeners. They're outstanding. And I learned new facts from those that I hadn't learned before, namely that the U.S. Trademark - Patent and Trademark Office 800 times had granted trademark protection to the word The Slants.

SANDERS: Really?

STROSSEN: The only time they didn't do it was for his band. And so when that was pointed out, the answer was, oh, but you're the only ones that are Asian-American. Can you believe that?

SANDERS: It's interesting. Well, also, we have - you know, I'm guessing that the makeup of these offices and these government entities that make these decisions are not the most diverse.

STROSSEN: I mean, it also shows that what is at stake here is not only freedom of speech but also equality because he was being denied not only his individual liberty to choose the name and the message that he associated with that name, but precisely because of his ethnic background, the name was read in a different way from...

SANDERS: That's crazy.

STROSSEN: ...The way it was read when non-Asians used it.

SANDERS: That's crazy.

STROSSEN: So let me get to your question, Sam. And thank you for letting me add what I thought was...

SANDERS: No, I love it.

STROSSEN: ...Really interesting information...

SANDERS: I love it.

STROSSEN: ...From Simon. So, basically, when you listen to what people, including so-called experts, say about hate speech, people who really should know better, you hear two completely opposite statements. All that they have in common is that they're both wrong. So you very frequently get public officials and even lawyers saying hate speech is not free speech. But that is not correct because the Supreme Court never has created a category of speech that is defined by its hateful or hated conduct, labeled it hate speech and said that is categorically excluded from the First Amendment. So let me contrast that with what is punishable.

So speech cannot be punished just because of its hateful content. But when you get beyond content and look at context, speech with a hateful message, along with speech with any other message, may be punished if, in a particular context, it directly causes certain specific imminent serious harm, such as a genuine threat that means to instill a reasonable fear on the part of the person at whom the threat is targeted, that he or she is going to be subject to violence.

SANDERS: You know, but hearing you bring up the idea that, like, well, if it - if this speech presents a clear threat of, you know, harm, violence, that threshold for many people varies. I'm sure that there are a lot of people who would say, merely hearing a person say the N-word in a certain way in a certain setting would make me fear physical violence.

STROSSEN: You are...

SANDERS: Merely - you know, merely hearing someone say faggot in a certain setting, in a certain place, would make me feel physically threatened, right? Like, what do you say to folks that say that, who say I'm in a marginalized group, and who is anyone else to tell me when I do or do not feel threatened?

STROSSEN: And not only threatened, but other kinds of harm. You can feel emotionally disturbed. You can feel psychic trauma, which can have physiological manifestations. And you can feel silenced, and these are all real harms that may be suffered by people who are subject to hate speech that is not punishable. And before I explain why, let me say, I empathize to some extent. I am a member of what one Supreme Court Justice called the most despised and hated minority throughout history, namely Jews. And - but I have not, I have to say, been subject to that much anti-Semitic speech. But I do remember, vividly, the first time that it happened with really vicious, vile, ugly language.

SANDERS: Tell me about it.

STROSSEN: I was standing in line at the bank. In those days, we didn't have ATMs, so this shows how long ago it was. And I needed some cash.


STROSSEN: So I was standing in line to do it. And for - out of the blue, the guy standing in front of me or behind me or - I think he was basically accusing me of butting in line, which I certainly was not aware of having done. And he just lashed out with every vile epithet that has ever been used against a Jew. And I was just stunned and stunned - I mean, stunned into silence, which rarely happens, deeply upset...

SANDERS: Did you fear physical violence at that...

STROSSEN: No, I didn't fear physical violence. But that's why I say that I think the psychic and emotional trauma and the associated losing your voice - right? - because if you are subject to that in a sustained way - and this is the argument that was made by the pioneering advocates of hate speech codes on college campuses in the '80s - they said, you know, you can't really fully participate in the educational process. It's not - even if you're not afraid of physical attack, you feel demeaned and demoralized. And even though we acknowledge those harms, we say loosening up the constraints on government to allow it to punish speech because of those less tangible, more speculative, more indirect harms, that censorial power will do more harm than good precisely because the pendulum can swing. And not that shockingly long ago, it was left-wing speakers - certainly, communists and socialists - who were kept off campuses, and civil rights activists were kept off many campuses because their ideas were certainly hated, certainly seen as dangerous and insulting. And Sam, you know because you obviously read my book. Thank you very much.

SANDERS: (Laughter).

STROSSEN: Today, there are serious government officials who are saying that Black Lives Matter speech...

SANDERS: Is a hate group. Yeah...

STROSSEN: ...Is a hate group.

SANDERS: ...Is hate speech. Yeah.


SANDERS: All right - time for a quick break. When we come back, we'll talk about how college campuses have become such a flashpoint for fights over free speech. BRB.


SANDERS: I wanted to make a point to talk with you about the interesting climate on many college campuses right now. They have, in many ways, become - some campuses - the front line in the battlefield of the fight over free speech. I'm thinking about a campus like Berkeley, which was the home and birthplace of the free speech movement, that was recently in the news because they were silencing people like Milo - oh, I can never say his name right.

STROSSEN: Yiannopoulos.

SANDERS: Yeah, Milo Yiannopoulos. At what point or to what extent should administrators be allowed to just say, yeah, we're not going to have Milo Yiannopoulos because he might start a small riot, and we can't afford the security, and people won't go to class, and it's a disruption?

STROSSEN: I think those are very, very serious questions. And first of all, nobody has a right necessarily to speak on a particular campus. Campuses can set viewpoint-neutral rules - what are usually called viewpoint-neutral - time, place and manner rules to allocate this scarce resource of the opportunity to speak on campus - right? - just the way in the city of New York, you can't automatically get a parade permit. You have to - you know, the first come, first served.

SANDERS: You have to apply.

STROSSEN: ...Berkeley could say, we will guarantee that there will be a forum for any speaker that is invited by a recognized student group, but beyond that, for other members of the community, we're setting aside a maximum security budget for the entire year. And once that's used up, we're just not going to go beyond that. And by the way, a university has no obligation to open its campus facilities for non-university...

SANDERS: A lot of people would disagree. Like, there are so many folks who came to Milo's defense who said, it's a public campus; they get taxpayer money; they got to let him go.

STROSSEN: No, but they - see, they had at that point a policy of anybody can come and speak. So they can't then selectively say...


STROSSEN: But we're - you know, we're going to retroactively deny - that's like Trump saying - exactly like Trump saying anybody can access this Twitter platform, except if you say negative things about me, then you can't anymore. So they had an open-forum approach, and then they selectively discriminated on the basis of viewpoint. And make no mistake about it, in an ACLU case, I'm proud to say, quite a few years ago, the Supreme Court held that imposing higher security costs on the speakers because the viewpoint is seen to be more controversial and therefore it's more likely to generate protests and therefore more security costs, that that is just an indirect way of discriminating against the viewpoint. And you cannot do that.

SANDERS: You know what they could do. They can let Milo speak but at, like, 5:30 in the morning on a Tuesday. No student would show up.

STROSSEN: Or you know what? They could let him speak and not try to silence him. And guess what? That has happened. And the reason you and I don't know about it is because there were no - and I know about it only because I read these obscure publications. But we play into the hands of these provocateurs when we try to silence them.

SANDERS: They want to troll you. They want you to get riled up. And, like, this is the thing that I see a lot. As soon as someone saying something that is offensive is told by someone else that they can no longer say it or that they can't say it, they want to say it even more. They want to say more offensive things. They want to say it even louder. And I feel like a part of what you argue in the book is that these hate speech restrictions just make the trolls want to troll harder.

STROSSEN: Exactly. And we can give so many examples throughout history where this has occurred. But let me cite something very current, which is before the beginning of the current academic year, the Southern Poverty Law Center, which for decades has specialized in monitoring hate groups, put out a guide to college campuses because of concern that the alt-right and white supremacists are stepping up their campus recruitment efforts. So this was a guide to students who hate the haters and want to counter their potential adverse impact. And SPLC gives a lot of good ideas, but the major theme is do not give them oxygen. Do not fall into the trap they are setting for you. Don't try to censor them. Don't violently disrupt them. Don't even engage in direct confrontation with them in some circumstances.

As I say in my book, the SPLC and I agree sometimes is saying somewhat paradoxically that the most effective form of counter speech might be silence - just ignoring them, you know, letting it fall on deaf ears.

SANDERS: Yeah. I have one more question about campus climate right now when it comes to free speech. And then I want to get to some other stuff from the book. And I want to ask you a bit about the ACLU and how they're doing right now. But before we leave college campuses, you know, some of these arguments over who gets to say what, they've all been going on for a long time. But there is a certain language I've been seen on campuses that seems new to me. And I want you to tell me if it is that new. There have been left-leaning students on campus and online who make the argument now that certain speech - certain speech that they deem hate speech is tantamount and basically the same thing as physical violence. That seems new, and I cannot wrap my head around it.

STROSSEN: I agree with you, Sam. It is new, and I'm surprised that you can't wrap your head around it because you did a very good job of devil's advocacy a while ago in this interview when you said, you know, that's harm. And it is really on a continuum, right? So that old saying that our mothers all told us - right? - sticks and stones may break my bones but words will never hurt me - you can steel yourself and prepare yourself and train yourself and have the habit of mind such that you are not going to allow that word to hurt you.

I also quote Eleanor Roosevelt in my book saying speech can only hurt us if we consent to let us - let it hurt us. So that's why some social psychologists - many that I cite in my book - really oppose students being told, oh, these words are so shocking, oh, you should be protected from these words. The net impact is going to be negative.

SANDERS: Yeah. Well, it's so interesting. There's a part in your book where you were making this point, and you point to a really interesting case in Canada where hate speech laws were used to censor the written work of the famous liberal black author Bell Hooks. That's something. I want us to talk - you know, you don't want hate speech laws. That is clear. But is there any one anywhere across the world, across the country, that has in any way worked?

STROSSEN: I honestly am not aware of it because if you look at the countries that do strictly enforce hate speech laws, including - France and Germany have the strictest in the world outside the Middle East...

SANDERS: And in Germany for historical reasons.

STROSSEN: Yes, but they haven't worked. I don't know how much your listeners follow. There have just been horrendous anti-Semitic violence in Germany - and including physical assaults on people who are believed to be Jewish, to the extent that the head of the Jewish community in Germany said to his community, you should not wear a yarmulke. Germany in the 21st century...

SANDERS: Is doing that.

STROSSEN: ...After that history. And can I tell you this story which some of your listeners may not know? So a couple of weeks ago, an Israeli Arab was visiting a Jewish friend in Germany. And his Jewish friend told him this edict about - he took his yarmulke off as he was going out on the street because he said, we have this edict. We've been warned that we shouldn't do it. And his Israeli Arab friend was incredulous. He said this cannot possibly be. So he put on the yarmulke. And guess what? They were promptly assaulted.

SANDERS: Oh, my.

STROSSEN: Angela Merkel, earlier this year, appointed the first cabinet-level secretary commissioner for anti-Semitism. And that's just one example. It's in other countries as well. And it's other groups. There has just been a huge upsurge in violence against minority groups in Europe despite the enforcement of very strict anti-hate speech laws.

SANDERS: But do you think there'd be more or less violence if those laws weren't there? Or do they have no effect?

STROSSEN: I think probably they have no effect. I would not make an argument that - you know, a causal argument the other way. I think what could be positive - and this is why a lot of human rights activists in Europe are saying, we should move more in the direction of the United States - that if they stop putting so much emphasis on censorship, that might well be a diversion from more constructive efforts.

So for example, I was recently on a panel with the commissioner for human rights in New York City. And she had just come back from an international conference. And she was shocked at how many countries and cities do not have human rights laws that make it illegal to actually discriminate against people in terms of employment or housing or education or voting. Likewise, there's less enforcement of laws against hate crimes.

And when people are relying on the government to stifle speech, there's less counterspeech of the sort that we see in this country - the community organizing that happened, for example, in the aftermath of Charlottesville. So I wouldn't make this a strong contention. But I wouldn't rule out the possibility that there would be reinvigorated other efforts to counter discrimination if we did not rely on censorship.


SANDERS: One more quick break here. After that, we'll talk about why Nadine says you're mistaken to equate the ACLU with the resistance. All right, BRB.


SANDERS: We have about 10 minutes or so. I really want to talk to you about the ACLU because this group has found itself in a very interesting position since the election. They have, for many people, become a part of #theresistance. And I think a lot of people have come to associate them with liberal causes and the left. And they are not looking at the history of this organization and defending the rights to speak for the neo-Nazis and the Milos and the NAMBLAs of the world. Are you dismayed when you see the ACLU take on a certain role in the culture that is not actually true to its history?

STROSSEN: Well, I would dispute that the ACLU is departing from its history.

SANDERS: I'm not saying that you guys are departing. But I'm saying that...

STROSSEN: Yeah, the perception.

SANDERS: ...The people see it, you know, differently.

STROSSEN: But, you know, that's always been a misperception. People tend not to look at the underlying principle. But instead, they look at who is - whose ox is gored in a particular case. And the reason that we're attacking specific policies of Trump is that those specific policies violate civil liberties principles. We did the same with Barack Obama, with Bill Clinton - to mention the two most recent Democratic presidents. And in fact - so basically the ACLU, rather than taking a position across the board on a particular individual or candidate or official or party, will issue criticism or praise on an issue-by-issue basis. Trump, no doubt, has a record number of issues on which he is earning criticism.

SANDERS: A new issue every tweet. (Laughter).

STROSSEN: But, you know, I used to just say off the top of my head - and I think I can still comfortably say it - I don't think there is a single official about whom we cannot issue at least some praise on some issues, civil liberties issues, and at least some criticism...


STROSSEN: ...On at least some civil liberties issues. You know, Obama was great on many, including the ones that I mentioned in my book. He was terrific in constantly speaking to college students, and especially minority college students - for example, in his last commencement address at Howard University - and saying you have a responsibility to yourselves and to your community. If you want to make a difference, you cannot support censorship and you have to engage with those whose ideas you disagree with. But he was very disappointing in some war on terror policies that we criticized him on.

SANDERS: And also the way that he dealt with the American press corps.

STROSSEN: Yes. That's really true.

SANDERS: He was a lot more combative with them and with us than people might have known.

STROSSEN: That's true. A record number of prosecutions under the Espionage Act. So you...

SANDERS: I know. It's intense.

STROSSEN: You're right. So I mean, then I should refine my point that everybody is bad on some free speech issues and good on other free speech issues. And you actually started our whole conversation by making that point so - but, Sam, I'm sure you get an A-plus, 100 percent on free speech issues, right?

SANDERS: (Laughter). We've got about five minutes. I want to ask you two more quick questions. The first is this. In your career as a lawyer being involved with the ACLU, being active on issues of free speech, writing a book recently about free speech, have you ever approached an issue or a client or a bit of speech where you said to yourself, I know I need to defend this because, free speech, but I just don't want to? It's too bad. It's too vile. It's too nasty. I want to tap out on this one. Was there ever a moment like that for you in your career?

STROSSEN: I have to say never one where I did tap out. I think the one that to me was the most vile was - and you already alluded to it - NAMBLA, the North American Man/Boy Love Association, because that to me they are advocating what I see as a form of child abuse. So that was very distasteful, but I do agree with the Supreme Court that advocacy of illegal conduct, including child abuse, is constitutionally protected. People may be surprised to hear that.

The Supreme Court, again, you know, the way it's strictly define - it's another example of very strictly and narrowly defining the kind of harm that will be punishable, and it drew a distinction between advocacy of illegal conduct, which is protected, versus intentional incitement of illegal conduct. Because if we say, well, mere advocacy as opposed to intentional incitement will be enough for this speech that's particularly distasteful to me. Well, once you make one exception, you can't hold the line, right? I know that if we loosened the standard for what was deemed to be, you know, advocacy that might be dangerous, Black Lives Matter would probably be the first thing that's endangered. So I think you really have to look at the abstract principle and just tell yourself that is what I'm defending.

SANDERS: Yeah. Looking at the state of things in America when it comes to speech and free speech and respecting those ideals, give us as a country a score on a one to 10, 10 being the best. How well are we living up to those big ideals of free speech and tolerance right now?

STROSSEN: Wow. I would say actually fairly high. If I'm looking at it in a historic perspective in the United States and around the world, I would say a 7.5, and I'm smiling because that's probably, like...

SANDERS: Very specific.

STROSSEN: ...The median grade at many law schools.


SANDERS: So we passed.

STROSSEN: Yeah. And we could do a lot better, but I'm so grateful for the fact, you know, we could be doing a lot worse. And every day, I read about - and I'm sure you do, too - journalists who are being murdered for speaking truth to power or have to have bodyguards all the time. And, you know, so sometimes I think, why am I spending my time trying to improve things when there are so many other countries that are closer to zero? And, quite frankly, I think the reason we are as high as we are is precisely because of what Thomas Jefferson called eternal vigilance. If we were not exerting that, we would be much lower.

SANDERS: So what I hear you saying is all this work on free speech, and we only have a 7.5. Which is good, but imagine if we stopped working. We'd fail the test. (Laughter).

STROSSEN: And I have to thank you so much, Sam. It's such a luxury to have such an extended conversation in an era of sound bites and tweets, important as those are. This is a real luxury.

SANDERS: Of course. Come back soon.

STROSSEN: I'd love to.

SANDERS: All right.


SANDERS: Thanks to Nadine Strossen. Her book is called, "Hate: Why We Should Resist It With Free Speech, Not Censorship." All right. As the week goes on, listeners, please don't forget to share with me the best thing that happened to you all week. Record yourself. Send the file to me at,, at any point throughout the week. You could hear your own voice in our Weekly Wrap on Friday. All right. Until then thanks for listening.

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