jonathan. i am so honored to have the

opportunity interview you about your terrific new book. i have to say, as you know, i'm a long time fan of your columns and of so many of your outpourings of scholar worship and other writings this morning alone. i have already received two columns about very important different issues. yet i believe this is the first book that you have written about free speech and you that it took you 30 years to get the gumption to do that. can you tell us what took you you obviously don't have writer's block. you have the opposite of writer's block. so what took you so long and why now? well, first of all, nadine, i've been forward to this interview because this is a mutual admiration society, because you are one of my heroes as a civil libertarian and as the former head of the aclu.

you've walked the walk. you're of those wonderfully unreasonable people. this book is about know that people that refused be silenced. and so thank you so much agreeing to do this. and indeed, it did take 30 years. you know, i was a bit of a dinosaur. i've always written law review articles which are like little in legal journals. and i really on putting off completion of this book until i felt that it could be an entire package i wanted to not just write another free speech book. i wanted to explore why we are still struggling with free speech, why it is that we go through these periods. and this book really looks at periods and personalities that shaped free speech. but i wanted to look at what free speech really is. why we struggle it, and how we can get through this period which may be the most dangerous, anti-free period in our history.

well, that was great overview of a really book. i certainly know that there is a array of books about free speech, several of which i i've written in the recent past. so the question is what is there that distinctive about your book? and i certainly found number of themes that it unique and as special points that have been made by other book. would you mind telling us what you think are are some of those points and i'll i'll chime in. well, the book tries to be comprehensive in going back to the very origins of free speech protection, going back to ancient athens. why free was first protected and. the rationales for that. but also looks at why free speech is a human condition. there's this book argues that free speech is a human and that

it's something completes us as humans. in my view, that view was captured in the first amendment. it's a very of our republic and. then that clarity was lost. and one of the reasons that we have continued to with free speech is because we don't seem to agree on it is we all agree with louis brandeis that it was indispensable, but don't explain why. why it indispensable? what is it to us? and the book argues this is not a right we should protect because it makes better that it has this function in democracy, but that it makes us better, that it's something that humans need to. and the early on in the it goes to how physiologically and psychologically we are hard wired for free speech. if i may chime in as, i say the way i process this very important theme throughout your book is that you believe that

one of the reasons why free has less support among the public and politicians even the media and also why the supreme court has not protected it as strongly, at least in certain contexts, is that we have overemphasized the, instrumental or funk purpose of free speech in advancing democracy and under emphasized its intrinsic value to us as as human beings. and that has led the court in particular and the public to under protect certain controversial types of speech. could you give us some examples, some that are threatened to this very day? absolutely. and you know this from your own career that free speech fights up in these trade offs with the government. if you say that free speech is

protect it because of its function in a democ, that it makes democracies better, then it suggests that some speech is more important than other speech, right? that some speech is considered valuable, high value, and others or others types of speech are low value. and then you're allowed to do these trade offs which we've done for centuries. that's what happened in. this sort of original sin of the american. there is within a few of the first amendment being drafted in fairly absolutist terms. the courts this blackstone and or functionalist view of free speech that it needs to be protected too because. we need it for democracy. and that put us on this slippery slope. that means that unpopular people whose speech is viewed as a rageful or hateful tool is given virtually no protection, while other speech is recognized as for democracy. well, what happened then?

yes, of course. do i? i'm so sorry. i was going to say, as somebody who has written in defense of what is probably the least one of the least popular types of not speech that the supreme court as expressly called low value and continues to not protect becoming more and more discordant with other decisions so-called pornography or obscenity. right. so i'm very familiar with the dangers of doing that. and we see that today in many contexts with the the stigmatizing epithet pornography being used to censor library books and curricula as well as online expression. jonathan, i agree with you there for that. it is really important to recognize the intrinsic value of, an inherent value for all of us as human beings of free. but i also think you make a very

powerful case which i think the facts support and that even from instrumental person active censorship is not effective, that censoring speech that is feared to be waged anti-democratic use whatever epithet you want to actually does not advance the goals of. democracy or peace or, stability. now that's very true and that does is raised throughout the book that censorship has never. look this country was born in rage and that's what the boston tea party was. we celebrate a moment of rage and rage rhetoric. and yet, ever since then, we've struggled with what to do with rage, rhetoric. and it depends on your perspective. for some, it's cathartic for some it's it's expressing depths of their sort of disconnection with society. to others, it's dangerous and.

what we see throughout history is that political speech is often treated that way. we've gone through so many anti free speech periods that we have to really wonder why we never found terra firma in this country. but your point is one of the most important in the book, and that, you know, when you look at these efforts, they all failed. you've never been to get people to change their mind by punishing them, executing them. you know, germany, for example, had one of the most foremost censorship and criminalization system in the world. and yet they a burgeoning neo-nazi movement. right. it hasn't done anything for neo-nazis. but what it done is it's eradicated free speech. and so while recent polls show that only 17% of germans felt comfortable speaking publicly about their views. so what have you achieved in that where have the burgeoning neo-nazi movement but all other

citizens feel they can't freely? i know. and you were actually i was looking for the exact quote. i can't find the paraphrase. won't do justice so. people have to read the book itself due to get the exact phrasing. you said that germ through its anti-hate speech laws has achieved authoritarian governments are striving for and it's ironic that this is being done in the name of democracy. well, jonathan, you've on what i consider to be a sick and major theme and unique contribution of your book is certainly signaled by the subtitle all about the importance rage. you've already commented that to some extent, but but there's another really interesting that i would like you to explore which is not only was country born in a period of great rage

against, suppression of free speech and other liberty, but that epic's of episodes of citizen rage have repeatedly been countered by episodes of government rage against the citizenry. can you expand on that a bit. yeah. what's interesting about these periods when you go through them is how rage. rhetoric has led to state rage where the government with, with crackdowns on free speech, arresting hundreds and thousands of communist social lists, you know, literally in a few day period up over a thousand anarchists that occurred regularly in our history. john adams was the first to do that in the new republic. soon after it was born, right, he they enacted the alien and acts and he went about trying to arrest and even execute people

who were his political opponents. this is the same john adams that praised the boston tea party said. it was magnificent. i think the word he used was majestic. his own you know, you had samuel adams, his kin who helped lead the attack on those poets and the destruction of the tea. so the perspective of rage changes and obviously when adams president, he became less tolerant of rage. but you see it then with figures like whitney, you know, anita, charlotte and lydia whitney was a wonderful character that i start with because it her case that ultimately brandeis to refer to this as the indispensable right. but the reason i started with that because it shows the conflict that we have inherently in our constitutional system. brandeis got the case wrong so did oliver wendell holmes. even though he said that he in favor of her.

so what did whitney do? whitney? was this this is one of the many characters that i talk about in the book as following what george bernard shaw said that unreasonable people expect the world to conform to them. so all history is made by unreasonable people in this book is about just magnificently honorees annabel people and whitney was one of them. there are people refuse to shut up and whitney it came from one of the oldest families in america one of them a wealthy family from california. she traced her kin to the mayflower. she was the niece of justice field. we'd spend summers with field when she was at wellesley, she went to a settlement house in new york and she saw poverty that she'd never witnessed before. into her credit. she wanted to do something about it, and she ultimately became a communist and also ardent feminist. but she told back in california that if she gave any more for speeches, be arrested.

and there were police officers throughout the speech, including one right behind her, and she proceeded to give a speech, lynchings in the united states and was arrested. yes, that was case that went to holmes and brandeis while they were on the court, and they upheld that conviction. so the question is why why do these great civil libertarian turn on free speech? and the answer is because we lacked that clarity. the beginning of the republic, they did a trade off that this speech not viewed as functionally important to the democracy. well, in fairness brandeis used the occasion and of that case to write what i consider be the most eloquent explanation of why free speech is important, which going back to an earlier point we discussed jonathan. he talks about the intrinsic value of free speech as well as

its instrumental value that freedom of speech is and end in and of itself as as a means. and there's rather technical, wonky explanation for why what sounded like a dissent ends up as a concurring opinion. he had another rationale which may be unpersuasive for why he voted to go along with the majority's end result. but at the very least, that inspiring language could set out a vision which you well know was unanimous affirmed by the united states supreme court in 1969. in an aclu case so essentially has been the foundation for a general really robust, modern of free speech. if you know why he you know, his motivation, that concurrence, i'd love to hear it. well, it's funny because in the book i talk about that. you're absolutely right. it is a magnifying statement in favor of free speech and.

there's been debate since then of why did what he did. there's some technical of why he might have felt the conviction had to be upheld. i'm not as critical of brandeis in the book as i am of oliver wendell holmes. and yet i dedicate very long chapter to oliver wendell holmes. and the reason is that i really felt that if we want to see where we got as a country on free speech, you have to look at where oliver holmes got lost and why he became. when i some kind of jonathan i'm so sorry before we go to holmes which going to be my next question because that's absolutely fascinating but i really want to underscore something you said in passing about charlotte, anita whitney that i think we really bears emphasis. it's a point that i did not know even though i was quite familiar with her general biography and certainly with the case you mentioned that this speech for

which she was a rested which led to at least an opinion that ultimately became the basis some very strong speech protect including protection for speech and racist speech she gave a speech that was addressed racial injustice including lynching and had not known that until i your book you had very powerful quotations from her in which she said this is not just concern for she used was considered a respectful term at the time for the -- of the united states. this is a concern for all us in america. and it was such a clarion call in. 1919 at a time when racial injustice was was rampant. and the reason i stress this you all understand it is because in recent times, in recent decades,

it's just been assumed. many on the left who want suppress free speech that we have to choose between concerns about racial justice and robust free speech. but whitney is one of countless examples we can give where the two go hand, hand. now, that is true, and we a number i go through a number of periods where anti racism speeches were the subject of crackdowns. there are cases talk about of the organizing of workers including farmworkers that led violence in which these union leaders were rounded up. they were completely innocent. you anarchists and socialists including of course, debs, who arrested simply because opposed a war. i mean, this is core political speech and yet those convictions

were upheld because we didn't have that foundation in free speech clarity we once had. well, thank you. that underscoring that really important point which is so relevant ongoing debates today. and now to oliver wendell holmes. again, i think many associate him with a famous dissent in 1990 and in which he does issue eloquent statements in support of free speech. he does, along with brandeis, dissent from upholding the conviction in the abrams case. but please tell us why. i don't know if you would say he did more harm than good for free speech over the course of his career, but certainly did much harm. oh, i think he did. do more harm than good for free speech. the reason i was intrigued by holmes not just that he was consistently anti-free speech in his opinions and handed down an array of decisions against

speakers who were engaged in pure political speech. but it was the vehemence with which he would write the opinions that me as odd when he would talk about natural rights, he would become vehement to the point of anger in these opinions. and i wanted understand why. and in some ways i would say the research for this book corrected misunderstood, a misconception that i had for years i've taught in class that. i thought that oliver wendell holmes, his view of natural law was an outgrowth of his experience in the civil war. when i really drilled down on it, it seemed very clear that he had rejected natural law in college at harvard. in fact think it was there's ample evidence that he may have been an atheist. i as early as college but. what happened is that those views then became magnified in the civil war. and i thought it was interesting that i came across one passage that listed the books that he

took to war. keep in mind, oliver wendell holmes was the most soldier in the history of warfare. every time he stepped down the battle survived. but he was the most lucky pick as he survived. well, i'm sorry well, it's just that he attracted led shot way motorhomes attract tornadoes. i mean, he would he would walk on a battlefield, get shot. i mean it. and to the point that eventually after his i wound people were saying maybe you should take a desk job. but he of course, fought with the brave harvard i, i a battalion or division and this was a group of harvard graduate kids that were the officers. they were they're not harvard graduates as people think of as the enlisted troops. but they all fought incredibly bravely. they had some of the highest casualty rates of civil war. and he was one of them. but was interesting, as he went on these battlefields, whether with a bag full of books and one

of them was hobbes, leviathan and i thought it was of all of the that i wouldn't have wanted young oliver wendell holmes to take on a battlefield. it would probably be hobbes and really took it to heart. he what saw the carnage made him more fervent that there wasn't any natural law. that law was simply whatever was legitimately created it in the system. and when he came of that war, he was virulent figure that comes out in these in these opinions. towards the end of his career or in particularly with the influence of people judge learned hand and others. i he began to regret some of what he had written, and he walked away from his most famous line about crying fire in a crowded theater in schenck which is your ijaw in you and having that as my least free line in the whole first amendment canon right everybody predictably trotted out to purportedly

justify every possible kind of censorship. no, it's incredible. but if you would comment on that. well, you know, i spent lot of time on that line in the book because you and i share this my hair catches on fire every time somebody cites that line and what's what's interesting, first of all, the line appears not have come from schenck it appears have come from a brief of a prosecutor in an earlier case that holmes adopted it almost word for word but it was a uniquely ill considered and it has become the mantra for everyone who wants to support censorship. i was testifying at a recent hearing when representative goldman from new york, as well as his other colleagues, kept on citing that line. and i finally interrupted and can i just, you know, point out that you're citing a line that oliver wendell holmes later walked away in a case that was later effective be set aside

because of brandenburg, but also a case where it was used to justify the imprisonment of a socialist for simply speaking his political viewpoints. and i was cut off by goldman and said, we don't need a classroom lecture here. and it's it was it was it was there is no correcting it. people love that line because it gives them license to silence others. they just say now the internet is one big burning theater and so we have a right to shut everyone up. and you know, my peeve, which you also go into in the book, is that the line. 99.9% of the time is miss quoted. yes. by leaving out very important word falsely right and causing a panic which are really important conceptual elements. right because the alleged justification motion is you are

preventing by suppressing the speech. but of the theater is on fire, you are preventing harm by shouting fire, of course. so the whole law for the justification in principle. now it is ignored by that. ms. perry phrasing. and of course it was misapplied. holmes himself one thing that you that again i learned for the first time in your book was zakaria chappie, who was one of the people that he was a harvard professor, one of the founders of the aclu. you great early defender of free speech and is often credited helping to holmes to change his mind later his career. that chappie said the better analogy for schenck would be if he was somebody who stood, you know, in a nondestructive way during, intermission and pointed out to people that the exits were blocked. yeah, in other words, he was trying to protect their safety. oh yeah. now that now sorry.

no, no, he was he was brilliant. and pointing that out, i honestly that by the end of his life holmes would have loved to gone back and, stopped himself from writing that line because even by the time of his death it was already being used by everyone as an excuse to silence others. now, if we can proceed from our least favorite lines to what our positive models would be for a robust interpretation, the first amendment, when you were saying least favorite book, you would for holmes to take with him to the civil war was hobbes, leviathan. i was thinking, well, i suspect the first choice might have been john stuart mills. liberty 859. because you talk a lot about the million harm principle i, i infer that you at least if correctly and implied that would be a mode for enforcing the

first amendment consistent with the human rights values of free speech. i do. and i think that the brilliance of stuart mill was he really unlike who was sort of the supernova exploded on the scene with his sort of libertarian his utilitarian creation of the foundation for utilitarian ism. it was really john stuart, who was the child of bentham that, organized these thoughts and produced something that was much more powerful in its impact. and that's the harm principle. and what mill said was that the function of government is to protect us from the harm of others, but that's also its limit that that the government has a legitimate right to keep us from harming others. but it also means that the government should restrain itself when we're not harming others in said that you don't

harm other other people through ideas but the function of the law is this harm principle. and i suggest free speech should be based on own type of harm principle. and in some regards this type of argument has been hijacked by anti-free speech movement. many students today. i've been taught since secondary school that free speech harmful, that it's triggering, that they shouldn't have to hear opposing views that is traumatic and. we've created generations of speech phobic because of this. the unyielding and unrelenting mantra. what i suggest is that we apply a true harm principle idea is are not harmful. speech is not harmful. good speech can overcome bad speech. but if we look actual harm, we focus on conduct. that's the line that i try draw in. this book is the end of the book tries to focus on where we can

go if we have a reawakening of free speech in this in this country and before we get to those excellent proposals, if i could, jonathan, i'd like to stay with the million, a great hero of mine. and i have to say that there is evidence that big portions liberty were coauthored by. his wife, harriet, too. so she's also a hero of mine, right? so the harm principle think is is very important, but it leaves two questions. one, you started to address, which is what kinds of harm are cognizable for status fying that principle because today it is i think widely accepted according to public opinion polls among college students and faculty members, among many other members of the general public, that even being exposed to an idea or an expression that find offensive or, even that you find

wrong, is causing you harm. so we have to police the boundaries of what kinds of harm our cognitive symbol and equally importantly is the degree of connection between the speech and the harm. and that's another that i think was best captured again by holmes brandeis in dissent slash concurrence, what's often called the emergency principle that the speech has to either directly cause or imminently threaten the specific harm it can't just have an attentive spec it attenuated speculative of loose indirect connection now that's right and of course that was ultimately captured in brandenburg requiring that imminent outbreak of violence and criminal. and that was the it was a high point for the court where they

had a great distance from cases like schenck debs but what the book talks about is is trying to find a way to bring the country back to roots, to its origins and we can do that by drawing this line focus on conduct rather than speech and example give is that there was a group of anarchy es that were arrested in new york and pittsburgh and other cities because they were anarchists, because they opposed the war, because they opposed the united states. i don't that it should be criminal to engage revolutionary talk. i think that if a country cannot withstand than people calling for it's overthrow, then it loses its legitimacy it's not the speech that is a crime when a group of those anarchists then to to build a bomb to try to kill an industrial is that was conduct that is legitimate be subject to two to prosecution.

so when when a lot of antifreeze speech figures say oh you know this is silly a lot of crimes are committed by speech. well yeah i if it's a conspiracy to commit an act like a conspiracy to build bomb, surely then speech is part of that. but we can have a line of demarcation. the speech itself, the viewpoints cannot be criminal much the our history. we have done exactly that well. jonathan, you and i share these beliefs, but we're constantly not only preaching to the choir, but trying to convert those are open minded or even hostile. so i know that you've encountered of the same challenging that i have, and i would like to throw it back at you. what about evidence that claimed i'm not going to subscribe it, but people say that there is evidence that speech that

psychologically emotionally trauma has not only an adverse psychological emotional impact, but it even has adverse implications. so this is a separate kind of harm, instigating a third party to commit a violent or illegal act. it is the harm that is felt by the individual who hears the speech or at whom the speech is not because of something that some conduct that's going to be triggered, but because of its immediate cycle slash physiological impact. no, i think first of all, i think we have to start acknowledging that speech, be hurtful speech can be traumatizing when people say things about identity and who you are that can be really emotionally quite damaged.

and we have to find a way to draw that line. for example, police a healthy environment is if you have people who are attacking into visuals. so we're making a essentially preventing them from being on campus by threatening them. obviously we have the right and the necess to remove those people, but the line is not as ambiguous as it would seem. that is those direct threats. those are people who are targeting other individuals. i am not the type of speech that we more deal with on on campuses. that is speech that is viewed is just inherently harmful because. it devalues a group of people or it is offensive to others. if you look at the speech codes of many universities, terms like offensive are making people feel uncomfortable, intimate dating. those are all words that are so subjective that it wipes a great

amount of speech and we can't allow that to happen and so the fact is and i don't i don't to evade this point being free speech advocate means that a lot bad speech is protected. it means that people you find obnoxious, even grotesque, will be able to speak. but you have to have a faith. maybe you take a leap of faith. that speech is its its solvent, that its corrective measure. and if we look historically has been what has not been a corrective measure has been censorship. and i have a long chapter, the indispensable right that goes into higher education. and if you want to see where this is taking us, you either look europe where the free speech movement, anti free speech movement has taken or you look at on campuses, i mean, it's very different when i'm with you in chicago.

i loved every minute of it. for me, it was like walking into the star wars bar scene. it seemed like everyone had a different viewpoint and i lived in a vegetarian, cooperated even in the basement, trotskyites would meet and next door we would have libertarians and we had militant upstairs and we had every possible viewpoint. i loved every bit of it because i was fascinated by people could see what i was seeing and come up with which different ideas it a smorgasbord of different viewpoints today been reduced to little more than a happy right. it runs from the left to the far left, but no one's particularly happy, you know, because all polls show that both professors and students a a vast majority are feel that they cannot speak on campus. so it's of like germany. what have we achieved all of

this except creating artificial silence, which we take as tranquility yeah, you know, it's interesting since i raised the to me devil's advocate argument for censorship in terms of adverse psychological with physiological impacts of speech. we don't like again something else that i learned from your book that was complete new to me were psychological in of of a shrinking creativity, a shrinking ability to realize our potential human beings. if we are exposed to fewer and fewer perspectives. it's i of course from free speech first amendment point of view have always supported intellectual heterodoxy as being for the pursuit of truth. but i thought it was interesting

that you talk about sensory deprivation and isolation among prisoners and you of course have experience in working with prisoners. can you just elaborate on that a bit, jonathan, because i suspect that will be new to most readers as well. yes. you know, nadine, i early on in the book, i look at what free speech actually means. and this idea that the book advances that we're hardwired for free speech, part of the human condition. and there are studies that indicate that there is even a physiological element to that that with studies have been made of prisoners in solids explores that have had no contact for long periods of time. and there are physiological effects of that the shrinking of areas like the hippocampus in the brain comes from the lack of able to express yourself. people, i can tell you in my work with prisoners i've only had two clients in my life that

came out of long periods of solitary confinement, same. they were deeply religious. and that religion helped them. they were both muslim and they used prayer to sort of keep them saying the rest my client. it took very little time before they started to go insane and that is a fact goes to how we are wired as human beings. and you know, i talk about the case of phineas, where some people may be familiar. he was a foreman in who used to use tamping iron to set explosives for the railroad, remove rock and on one terrible day he ignite did the explosives with his tamping iron and it was blown through his head and it blew off the front of his brain, essentially. and what was what came out of that was a doctor who realized he should be dead. right. he showed up hours later.

he was able to talk to him and he realized that that frontal, that cerebral cortex not necessary for life. and he figured, since most of it now gone, he might able to figure out what its function was and what was. will gage, as his friend said, that he was able to function. he had various jobs, but he became almost animalistic. he became and that was a used by his friends. it became violent unable to have long standing unwilling to to face no any dissatisfaction he became less human. and those are the areas that deal with expression. and so what the book is suggesting that these studies indicate that free expression is not just simply functional. right that's great democracy. it is great for democracy. but it's also something that may be essential for all of us to be human beings. you the very concept of a

starving artist who's willing to star or because he has to express himself. that's what we're hardwired for in, you know. so you've already illustrated some the fascinating characters that whose lives and deeds and experiences you explore. so this is filled with philosophy and history, also wonderful stories. some who are well, like oliver wendell holmes, but you give us a very different perspective on holmes from the conventional perspective, and then you also talk about some people who are really unknown and uncelebrated to me. and i say to me, because have spent a lot of time studying the first amendment, if you could just briefly talk about there were a couple of judges in the western united states, montana and north dakota who were the of holmes in terms of their lack of

a fancy education, who got it exactly right about free speech long before the u.s. supreme court did so in the brandenburg case in 1969? that was impressive. yeah. the truckstop position of holmes with someone like judge bork waiting for montana is particularly interesting because here was a judge who was a cowboy. he was a miner he was self-educated. he was gruff he was a bit as often the case with free speech advocates. he was a bit of a loner and irascible, but he had an inherent clear d of thought when it came to free. when holmes was signing off on horrific opinion, silencing dissenters, this montana judge ruled in opposite way when people were opposing the war, and he said, you can't just criminalize the opposition to a war that's that that's not what this country is about what the

constitution's and there wasn't a just an a native or belief that comes out in those opinions and. there are other judges like him who stood in opposition to these two judges like holmes they had that clear and and great personal cost bride accused of being traitors then attempts to impeach them and remove them from office. yes. so these are very, very. it's too bad. so thank you for restoring them to public and hopefully they'll become subject of biographies and admiration and emulation. well, we have not too long to go in this interview, which i can talk to you forever, jonathan, but i wanted to be sure to touch on the third of what i see as. three major, unique perspectives

in your book. we've already talked about the importance of speech as a human intrinsic human right. we've talked about the importance of the theme of rage to the other unique aspect, most important unique aspect of your book was the theme sedition that you stress from the beginning through to the very most recent episodes in united states presidential politics. could you and you see that as that we have to overthrow that we have to finally reject concept of sedition as a punishable crime that's deeply inconsistent with the first amendment. can you explain that. yes i've writing about sedition for many years as an academic, i because sedition when you look at anti free speech periods of our i history sedition cases run

through them all. and it's not that they are used often in cases, but as we saw recently, we often reach for forms of sedition when we're angry or afraid and that the case with january six but what the book goes back to is where sedition and that was in of course england and many people don't realize that the infamous star chamber was basically a tribunal for criminalize speech. but what happened was they had english judges who were by means particularly a protectable over individual rights, balked at claims that people who said unpopular or obnoxious were traitors because the crown would just call you a traitor and has elements. so these judges at least were a bit persnickety and said, well, we don't see the elements treason here.

so what the british did is they created the star chamber and accused them of sedition so that they didn't have to prove elements of treason. it had all benefits of treason, but you didn't have to show that anyone actually was trying to overthrow. the government, you were just speaking against the government. so the chamber, which of course had few due process protection and started to issue these these draconian punishments to people that would just make jokes, pubs or say mean things about the queen or the king. well, that starts chamber ultimately became law of sedition it started creating the law of sedition that was known to the framers. now you'll notice that they didn't adopt the word sedition didn't adopt. in fact, most the framers saw the star chamber and sedition prosecutions as abuse and yet as as john adams came into office,

it was the first thing he reached for because he was familiar it they use sedition against the american revolution and then he used it against his critics. now the the book is so ardent about getting rid of sedition crimes is that we don't need them. that is, if you take a look at january six, you see why we we still the seditious conspiracy which is different from the original sedition crimes they're these these charges are superfluous they are redundant. they don't increase the time. they don't really increase the severity. so they are almost identical to the other charges. but we still use them because we want to charge someone based what they thought, what they believe. and that's where sedition appeals. so we have a handful of cases that have been brought for seditious conspire ac i and it

shows this continuing sedition and addiction and what i talk about in the book is that james madison saw this for what it was and i'm a madisonian scholar, so my students right now are rolling their eyes that i can't speak for 10 minutes without talking about james madison. but madison wrote brilliant paper in, 1800, and he talked the monster that lives within us that this monster dwells us and comes forth during periods of fear and periods of hatred. that monster is sedition. it is the criminalization of speech. and madison saw adams in later a bit jefferson for what they were he saw them slipping away and he warned them not to let this monster come back. it's time we slay the monster and we don't need in this country we can a clean break from history in that. well speaking history.

one of the other major themes of your book which we've touched on but i'm going to ask a more pointed the subtitle is an age rage right it's not the age of rage and on the one hand you show that this is a consistent historic pattern. on the other hand, you seem to indicate you did so at the beginning of this interview as well, that the age of rage is uniquely dangerous for a couple of reasons. and one of the reasons is you talk about a triumvirate of forces in addition to the government that are rage being against free speech. could you could you comment on that? jonathan? yes. i mean, the thing is rage been with us since the founding of our country. and what people don't like to admit is that they like it, they

like rage. it's it's even addictive. it's contagious. and when you're in a rageful moment, you are righteous. but with the of time you look at these periods and you see it for what we're really was today, we're in an age of rage where people want to silence others. but what what's different is we've never had this triumvirate. we've never had the government, the corporations, the media aligned in this way. and you throw in, of course, academia as well. and have this alliance against free speech that we've never seen fielded before. and they are having a huge impact. and we are raising a generation, i said, of speech phobic in that sense. and the book goes into detail about the censorship program that was revealed in part because of the twitter files that were released. elon musk purchased that company

and a judge referred that as orwellian in size scope. we have to come to grips with it because we've never anything like it. many of the arguments by the way, that they use we've seen those that even though all of these are saying well, we're facing an oppressive vented threat of disinformation, that the exact argument used at the beginning of their public even fake news was a term at the beginning of the republic. so there's nothing new what they're saying, but they have a far greater force, a really laid out against free speech. that was i was going to that point because in all of my free speech, evangelize in the recent past this speech that definitely been the most controversial among audience members, especially those to the left and other political, which includes most people on campuses, is decent.

a few years earlier was hate speech. that was the source of rage prophet provocateur of rage. but disinformation especially online on social media about electoral issues, especially about covid related issues, has been attacked as dangerous to democracy. so here we come, full circle to the instrument. if the instrument is the justification for free speech, is that it promotes democracy. all you have to do is claim that dissent undermines democracy and that becomes a justified creation for for censorship well, in fairness we know that the social media companies have the to engage in whatever content moderation so-called policies they want. i assume that you support that jonathan so can you comment little bit more this was recently before the supreme court the crucial

interrelationship government and what private platforms in up against so-called disinformation. yes i've testified on this in congress as well as as a good part of this book and i do believe this can violate the first amendment. it what i've called censorship by surrogate. that is you can be agent of the government even though a private company i do recognize these companies have free speech rights. but we have to look at the social media companies in a way because they are social media. when they first were given immunity, they portrayed themselves. i think correctly is akin to the telephone companies and indeed social is now more popular as a form of communication than telephones. now, could you imagine if you were on a telephone call and at&t broke in and said, you know what, we've been listening to your call, don't like what you just said. so we're going cut the call off and we're going to suspend you

from making further calls until you start to give better views and in your conversations, people would go insane, would say, how dare you do? and yet they believe that social media can be given immunity in all of support and can do exactly that. and i do believe it can trigger the first amendment. but we also have to understand that the first amendment is not the exclusive of in full definition of free speech. it deals with the government, not private, but a lot of the anti free speech figures try to convince that if it doesn't fall within the amendment, it must not be a free speech issue. that's that's absolutely free speech. go beyond that these are violating free speech through this massive censorship and part what this book tries to do is to get people to understand the scope of those values as we deal with things like social media. and you have, you know, what

happened to twitter was key by twitter is the only company that released those files facebook other companies have refused to reveal extent of their censorship. and so the problem is that the anti free speech movement is very it takes lot to get a free people give up their liberties they have to be afraid they have to be afraid. and that's you have made us you've made us afraid. i'm interjecting here because we have so little time left. and i want to end on the upbeat note that you and book on despite all of challenges, you remain optimistic. i would like you to spend a little bit of time suggesting some of the steps that we can take to restore our free speech, to the robust human that it was intended to be. and why you are optimistic that we can, in fact, do that?

well, one of the reasons this book took me so long is i didn't want to publish it until. i could commit a significant at the end of how we restore free speech in this country and there are things we can do. one is for congress to prohibit the expenditure of a single federal dollar to support and grants or any other form. i projects to silence target at throttle citizens. we need to get the government out of the business. it doesn't mean that the homeland security cannot respond in own voice. they always have that right. they can go on their own sites and say what turley just said is completely ridiculous. that is speech. but to try create this army of surrogates as been done to actually target revenue of some of these sites to to seek the the banning of individuals and groups, we need to get the government out of that business

that we can also limit federal to universities that are attacking this stick to free speech. if we had universities in racist conduct, no one would suggest that we should give them federal funds. we should treat free speech as a value, as important as our anti-racist policies. but despite all what this book lays out, our history and it is an unvarnished of where we've been as a country, i am optimistic and partially there's a there is a value to believing that free speech is a human right because it has an inherent optimism that if you believe that human beings are hardwired for free speech, it's in our dna, then you can never really extinguish it. you know, all of the efforts of a censorship might be able to reduce appetite for free speech and short of time, but it'll never never kill our taste for

it because it's part of being human. well, you so much, jonathan. that's a perfect note on which unfortunately we have to conclude i am opting mystic for many reasons. not least of which because you are. so if effectively exercising your speech rights through this book, through your tireless advocate to educate and other people to exercise and defend free speech for themselves and everyone else. thank you so much. thank you. unity. this has been a real pleasure fo