Harvey Silverglate is a free speech advocate, co-founder of FIRE, the Foundation for Individual Rights and Expression, and author of several books on freedom of speech and criminal justice. He is running for Harvard Board of Overseers on a platform of free speech. If you're a Harvard Alumni, please consider voting for him by Tue, May 16, 5pm ET: https://www.harvey4harvard.com/ballot Please support this podcast by checking out our sponsors:
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EPISODE LINKS:
Vote for Harvey: https://www.harvey4harvard.com/ballot
Harvey's Website: https://www.harveysilverglate.com/
FIRE's Website: https://www.thefire.org/

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OUTLINE:
0:00 - Introduction
2:15 - Freedom of speech
23:56 - Bureaucracy in Universities
40:10 - Clash of ideas
43:48 - Public education is broken
55:24 - Jeffrey Epstein
1:08:17 - Freedom of thought and liberal arts
1:19:22 - Interviewing controversial people
1:23:06 - Alan Dershowitz
1:26:19 - Donald Trump
1:33:18 - FBI
1:41:43 - Criminal justice system
1:44:12 - Advice

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It is the most important right that Americans have.

It's not a coincidence or an accident that it's named in the First Amendment to the Constitution.

Without it, no democratic society can be democratic for long.

That is, I believe that, for example, people say to me, but what about hate speech?

Well, hate speech is much more important than love speech.

And the reason is, I'm much more interested in knowing whom I should not turn my back on than I am interested in figuring out who loves me.

The following is a conversation with Harvey Silverglate, a legendary free speech advocate, co-founder of FIRE, the Foundation for Individual Rights and Expression, and the author of several books on the freedom of speech and criminal justice, including The Shadow University, The Betrayal of Liberty on America's campuses.

Harvey is running to be on the Harvard Board of Overseers this year with the write-in campaign.

So you have to spell his name correctly, Syver Glate.

Promising to advocate for free speech and to push for reducing the size of Harvard's administration bureaucracy.

Election is over this Tuesday, May 16th at 5 p.m.

So if you happen to be 1, please vote online.

It's a good way to support freedom of speech on Harvard campus.

Instructions how to do so are in the description.

As a side note, please allow me to say that since there are several controversial conversations coming up, I tried to make sure that this podcast is a platform for free discourse where ideas are not censored, but explored.

And if necessary, challenged in a thoughtful, empathetic way.

It's by having such difficult conversations, not by avoiding them, that we can begin to heal divides and to shed light on the dark parts of human history and human nature.

To support it, please check out our sponsors in the description.

And now, dear friends, here's Harvey Silverglate.

You co-founded the Foundation for Individual Rights and Expression, also known as FIRE, a legendary organization that fights for the freedom of speech for all Americans in our courtrooms, on our campuses, and in our culture.

First of all, the organization, when I co-founded it, in 1999, was called the Foundation for Individual Rights in Education.

It focused on free speech issues on college campuses in academia, and only earlier this year did we decide to expand our reach beyond the campuses, which is why the name, or the acronym FIRE remains.

It's now the Foundation for Individual Rights and Expression.

The E used to be education, it's now expression.

And we basically do a lot of the cases the ACLU used to do.

The ACLU now more is a progressive organization rather than a civil liberties organization.

And we've taken the role of dealing with free speech in the society generally.

And now this is a particularly, an era prone to censorship.

Everybody thinks they're right, and that people who disagree with them should not be able to voice their views.

It's a very difficult period right now, both on campus and off campus.

It's about as intolerant an era as I can remember.

Well, let's start with that, almost a philosophical question, a legal question, a human question, what is this freedom that you care so much about, that you fought for so much, freedom of speech?

That is, I believe that, For example, people say to me, but what about hate speech?

And the reason is, I'm much more interested in knowing whom I should not turn my back on than I am interested in figuring out who loves me or who likes me.

So hate speech is the most important in my view, and yet it's banned in, for example, schools.

Kids are not schooled into understanding the glory of the First Amendment when schools say to them they shouldn't say things that are gonna make somebody feel bad.

I mean, the purpose of speech is to express honest views that people have.

So I believe hate speech is as important as love speech and my view is more important.

So it should be brought to the surface rather than operate

What is the connection between freedom of speech and freedom of thought?

Well, in a free society, thoughts start in the brain and then they come out the mouth.

So they're different ends of the same spectrum.

So to you, the censorship of speech eventually leads to a censorship of thought.

Of course, censorship of the mode by which other people know what you're thinking.

So there's some aspect of our society that thinking is done collectively, and without being able to speak to each other, we cannot do this kind of collective thinking.

And out of speech, the theory is that ultimately out of speech comes truth.

That isn't necessarily so, but I do think that when there's free speech, better decisions are made, because people put their views on the table in a frank, accurate way, and then those views mix together and clash, and out of that usually comes the better decision.

Not always, but usually, or more often than not.

But if somebody is not allowed to sit at the table of decision making, then the decision making process is poorer, less robust, less diverse, and ultimately less successful.

So Can you elaborate on the idea of free speech absolutism?

So hate speech can be quite painful to quite a large number of people.

Living in a free society requires that you expose yourself to some discomfort, you call it pain.

It's maybe emotional pain, it's not physical pain.

But It's the price we pay for living in a free society.

Every so often we're insulted, we're emotionally hurt.

We're lucky to be in a country that has the First Amendment.

It's also the most diverse country in the world because of immigration.

I mean, my grandparents, My father's side came over from Russia.

I'm very happy that my grandparents came in from Russia.

I'd probably be sharing a cell with a Wall Street Journal reporter.

So I'm thankful that they came in and this is a great country.

It's got troubles right now, but our country doesn't.

And we've had, before we had a civil war, We had segregation, we had the decimation of the Indians, we're not perfect, but it's the best place in the world for somebody who values liberty.

So you don't think that hate speech can empower large groups that eventually lead to physical action, to physical harm to others?

I think that we have developed a culture in which It's understood that if you don't like what you hear, you talk back.

We don't punch each other, we insult each other.

I used to, as a kid in Brooklyn, where I was born, I was born and raised in Bensonhurst, we used to say sticks and stones can break my bones but names can never harm me.

What was true when I was 5 is true when I'm almost 81.

So I've lived a long time, I've seen it all.

And I'm talking from experience as well as theory.

It's what happens when you reach your 80s.

I read that you had this line that you cannot be protected from being called an asshole.

Well that's, but you don't have to be an asshole to be called

And I think The internet has taught me that.

Well, the internet has posed a particular challenge to free speech absolutists because of some of the stuff that's on there is god awful.

But I have no different rule for freedom of speech on the internet than I have in newspapers or in lectures or in classrooms or conversations among people.

you think about the tension between freedom of speech and freedom of reach as is kind of sometimes termed?

So the internet really challenges that aspect.

It allows speech to become viral and spread very quickly to a

Well you know we've had revolutions in the modalities of communication.

After all, newspapers were the first challenge.

Radio and television posed a new challenge.

The FCC tried, but ultimately gave up the attempt to control obscenity, for example.

And the Supreme Court has been pretty close.

The 1 thing that liberal and conservative Supreme Courts, right now we're in a conservative era due to Trump nominations.

During much of my life, the Warren Court, it was William O.

Douglas, Brennan, it was a liberal court.

They don't agree on much else, but they do agree on free speech, and I think the reason is that they recognize that, well, my group is in the ascendance today, but it may not be tomorrow, and I wanna have objective, clear rules so that when I'm in the minority, I'm able to voice my opinion.

And so It's 1 of the few things that both sides of the political spectrum agree on.

The only people who don't are the people way over on the right that I call the fascists and the people way over on the left who are the communists.

But with respect to most people on the political spectrum, Republicans, Democrats, Socialists, Libertarians, they agree on the primacy of free speech because it protects them when protection is needed.

So to you, even on the internet, free speech absolutism should rule.

Remember, death threats are not protected.

Nobody's gonna die, so people are gonna be a little bit insulted, that's the price you pay for living in a free society.

Some people don't have as tough a hide as others, well, then develop it.

I don't mean to sound cruel, but you're living in a free society, develop a tough hide.

So that's the cost of living in a free society.

The thing is that it can really hurt at scale to be cyber bullied, to be attacked for the ideas you express or maybe ideas you didn't express but that somebody decided to lie about you and use that to attack you.

all, there are some exceptions to the First Amendment.

If you say such and such, I will murder you, that is not lawful.

If you say that somebody, if you say about somebody, oh, you know, you beat your wife, That is not lawful if in fact the person knows you don't beat your wife.

Defamation is 1, direct threats are another.

So it's not, the first amendment is not absolute, but it's more absolute than it is in any other society, and it's pretty near absolute.

If you sell somebody a car, and you say, oh, this is in great running shape, and in fact, it's an old jalopy, and it's not gonna make it more than 10 miles.

So free speech is not absolute, there are these limits, but they're very narrow, specific categories of limits.

But there's gray area here because while legally you're not allowed to defame a person, in the court of public opinion, especially with the aid of anonymity on the internet, rumors can spread at scale.

Thousands, hundreds of thousands of people can make up things about you.

We're big, we're through freedom of speech, we're big boys and girls, You have to defend yourself.

You know, in some societies, if you say something, right now, if you say something nasty about Putin, you'll end up in the gulag.

If you say something nasty about Biden, you end up in the New York Times.

Well, let's talk about the thing you've done for over 20 years, which is fight for the freedom of speech on college campuses.

So why is freedom of speech important on college campuses?

Well, it's important everywhere in the society, but

Because that's where we educate our young citizens.

And if you are educated under a notion that some dean can call you on the carpet because you say something which is considered racist or you can say something which is considered dangerous to social cohesion, then it's not a liberal arts college.

No, the theory that I used in The Shadow University.

A book You've written, The Shadow University.

You were ahead of a lot of these things, by

I'm afraid that as a pessimist, I always saw the bad side of things.

Betrayal of Liberty on America's Campus is The Shadow University, a book you co-authored with Alan Charles.

Yes, with 1 of my Princeton classmates, Alan Charles Coors, who's now an emeritus professor of Enlightenment History at the University of Pennsylvania.

I only taught for 1 semester, and I can go into that later, the reason I did not continue to teach in colleges.

It was Harvard Law School, I taught a course in the 1980s.

But in any event, the college campuses are 1 of the most important for free speech.

And if you don't really get a good education, if certain points of view are not allowed to be expressed, because education comes from the clash of ideas, and you then have to decide, this is how you become a thinking adult.

You have to decide which ideas make more sense to you, which ones you're gonna follow.

The college experience is transformative.

And if there is censorship on campuses, it's highly destructive of the educational enterprise, and ultimately to the entire society.

You know, We have in the sciences, we have a scientific method.

Scientific method is you try experiments and you see which ones work and then you develop theories based upon the results of experiments.

Well, this is not much different from every other aspect of life.

You have to entertain different views on different subjects.

You hear all the views and you make a decision as to which one's accurate and which one's not.

So the scientific method I apply to non-science, to history, to journalism, to all of these things.

So that scientific method includes ideas, hateful ideas also.

Correct, if you don't allow hateful ideas, I mean, when scientists do experiments, nobody says to them, oh, you know, don't do that experiment, because it would be very bad if that turns out to be accurate, that outcome.

Every point of view is thrown into the marketplace, whether it's science or whether it's non-science.

And that includes the kind of ideas and the kind of discourse that might actually lead to an increase in hate on campuses?

The First Amendment prohibits speech which is liable to produce imminent violence.

So for example, the exception is yelling falsely, falsely yelling fire in a crowded movie theater.

They say, well, the exception is yelling fire in a movie theater.

Well, if there's really a fire, you're performing a real important function by yelling fire.

You start a riot, people would be crushed, try to get out.

So that's 1 of the exceptions of the First Amendment as the Supreme Court has defined it.

I'm not a fan of that exception, frankly.

But if you say something about somebody that has serious implications in their life, in their ability to earn a living, if you accuse somebody of being a pedophile when it's not true, that person can sue you.

My own view is I think that's an unfortunate exception, but I'm not on the Supreme Court.

I think that I'm with, a friend of mine was Nat Hentoff.

Nat Hentoff who wrote for decades for the Village Voice in New York, he was a friend of mine, he was a free speech absolutist.

And he wrote a fabulous book called Free Speech for Me but not for thee.

Even on the defamation aspect, I mean, I agree with you in some sense, just practically speaking.

It seems like that the best way in the public sphere to defend against defamation is with more speech.

And through authenticity, through authentic communication of the truth as you see it.

Yeah, you know, at times the Boston Globe has said something about me that hasn't been accurate.

They have invariably published my letter to the editor.

I'm also not bashful about getting in touch with the reporter.

At the end of every column, they give the reporter's email address.

And I know people say that I have more access to the media than most people, but all that means is I get the fame more than most people.

Can we also comment on, from the individual, consumer of speech?

There's a kind of sense that freedom of speech means you should be forced to read all of it.

Freedom of speech versus freedom of reach.

We as consumers of speech, do we have the right to select what we read?

And nobody can force us to sit in a room and listen to a radio program that we don't wanna listen to.

Nobody can force us to read a book that we don't wanna read.

The whole notion of freedom of speech means that people have autonomy on their choices.

In order to form a complete mind and complete human being, there's a kind of tension of that autonomy versus consuming as many varied perspectives as possible, which is underlying the ethic of free speech.

So on college campuses, it seems like a good way to develop the mind is to get as many perspectives as possible, even if you don't really want to.

You should be able to entertain all kinds of hateful, threatening ideas, and the way I put it is, there's something wrong when You can say something with complete abandon without any fear in Harvard Square, whereas on the other side of the fence, you can't say it in Harvard Yard.

And what happens is universities, from the best to the worst, from the most famous to the least well known, have been taken over by administrators.

Administrators do not really subsume academic values.

They know nothing about the Constitution, they know nothing about free speech, they know nothing about academic freedom, they feel that their job is to keep order.

And so they develop speech codes, kangaroo courts to enforce the speech codes, And these are very dire developments.

I wrote about them in the shadow university in 98, and tried to deal with them in 1999 when I started FIRE, co-started FIRE.

And I would fire, the reason I'm running currently for the Harvard Board of Overseers is, what I'd like to do is convince the Harvard Corporation, so-called President and Fellows of Harvard College, the chief governing board of the university with the real power.

The board of offices is a secondary body, but quite influential, to fire 95% of the administrators.

It would have a salutary effect on the academics of the university, we'd have a salutary effect on free speech and academic freedom.

And it would create a whole different atmosphere on the campus.

And the same could be said of MIT or any other place.

I think administrators are a very bad influence on American higher education.

Can you sort of elaborate the intuition of why this thing that you call administrative bloat is such a bad thing for a university.

of the cost of maintaining, there are more administrators in American higher education than there are faculty members.

Number 2, they are inimical to the teaching enterprise and They feel that their job is to control things, to make sure there are no problems and nobody's feelings are hurt.

Being called before a dean because you said something that insulted somebody is something that shouldn't happen in American higher education, yet it happens because you have these administrators who think it's their job to protect people from being insulted.

You insult a black student, you insult a woman.

Black people are accustomed to being insulted.

And it's very good to know who doesn't like you.

It is very, it's essential information to know who doesn't like you.

If everybody is forced to say I love you and nobody can say I hate you, you get a false view of what life is all about.

And that's ultimately the mission of the university is to prepare you to make you into a great human being, into a great leader that can take on the problems of the world.

Correct, and you don't do it by treating you like a little flower.

But what role does the university have to protect students?

To women, African Americans, anybody, Jews, anybody who can be a victim of hate speech.

If somebody physically assaults you, then they get punished.

But they shouldn't protect you against insult because that is a violation of academic freedom, the freedom of the insulter to insult you.

And also, as I said, it's very useful to know who doesn't like you.

I think it's essential, I wanna know who doesn't like me.

It's as important to me as knowing who likes me.

But do you also believe in this open space of discourse that the insulter will eventually lose?

I think that the insulter eventually will wear out his or her welcome.

I do, but I like to know who the insulters are.

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Harvey Silverglate: Freedom of Speech | Lex Fridman Podcast #377