The Free Speech Chill

Evelyn Douek: My life would not be possible now. I was an international student at Harvard in 2016, 2017. I was there on a visa and then ultimately got a doctorate at Harvard and that made it possible for me to have this wonderful job. I think I have the best job in the world, and to have this green card and work at Stanford. And all of that would not be possible in current conditions.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available. One of the things we are doing today, obviously, in our podcast, is exercising our First Amendment rights about free speech.

And who better to do this with than my colleague Evelyn Douek, who is a professor here at Stanford who teaches First Amendment-related issues. Her research focuses on First Amendment, content moderation, law and technology, and online speech regulations. Evelyn is also from Australia, so she has personal knowledge of what it’s like to be here conditionally, and that’s part of what she wrote about in a recent essay in The Atlantic, entitled “Can I Teach the First Amendment if I Only Have a Green Card? Protections on Free Speech Look Weaker Than They Did When I Became a Permanent Resident.” So welcome to the show, Evelyn.

Evelyn Douek: Thanks so much, Pam. Great to be here.

Pam Karlan: So, when you ask … in one sense, I found your title really funny, “Can I teach the First Amendment?” because obviously you do it totally superbly. You’re a prize-winning teacher here at Stanford, and you are our prize-winning teacher, essentially because you teach the First Amendment. So it’s a kind of deeply ironic title. What led you to write the essay?

Evelyn Douek: Yeah, it was just … I was sitting there, preparing to teach First Amendment, which I love doing. It’s one of my favorite things. It’s such a fun course to teach and I feel really passionately about these issues. And I was sitting there getting ready to teach it in the spring quarter this year, so that was starting in March or April. And as I was sitting there revising my notes, I was reading all of these headlines about these student visa holders and green card holders that were being rounded up and put into detention for the things that they said during protests and for the op-eds that they wrote in student newsletters.

And I was struck, reading these articles about what was happening to these students and graduates and myself being a green card holder. And then on the other hand, reading these notes of mine that I was about to teach these students about the wonderful majestic speech protective First Amendment tradition that this country has and is so proud of.

And all of these beautiful sweeping statements from these precedents about the value of free speech and the marketplace of ideas and how we need to have the courage of our convictions to hear the speech that we disagree with. And just this real tension about how to think about teaching the First Amendment in that moment, and how to think about teaching it as a green card holder, where I think the message that was being sent to green card holders and visa holders around the country by these detentions was, “Watch what you say.”

Pam Karlan: One of the, one of the points that you make in the essay, and I know from the fact that I came as one of the observers to your class, I think two years ago, is that a lot of what we think of as traditional First Amendment doctrine is really quite new as a historical matter.

Evelyn Douek: Yeah. This is one of the things that always surprises students when you teach a First Amendment. I think there’s this conception … the First Amendment is a legal doctrine, but it’s also a cultural conception that Americans are very proud of and feel like it’s somehow in the blood and soil of America, right? Like it’s part of what it means to be American is to believe in the First Amendment and to believe in this kind of absolutist free speech tradition that this country has. And that therefore it must have come from the founding era as it was inscribed in the Constitution in those words, ‘Congress shall make no law…”

Pam Karlan: Yeah, I think people often think, John Peter Zenger to today, and nothing that’s in between.

Evelyn Douek: Yeah. And so, as you all know, it’s just not true, right? It’s actually remarkably untrue how recent the tradition of First Amendment law and doctrine is—it is always a big surprise to students.

So most First Amendment courses will start by reading this trilogy of cases from 1919 when the Supreme Court upheld three convictions under the Espionage Act for nothing more than circulating pamphlets and articles opposing the American war effort in World War I. And a socialist party presidential candidate, Eugene Debs, who was jailed for free speech, for giving a speech, a campaign speech, that criticized the draft. And this is just over a century ago. And here you have these examples of core political speech and the draconian punishment that was visited on these … on these people as a result of their free speech exercises. And so then you unfurl the tradition that, that becomes the modern doctrine, but it certainly is by no means something that stretches all the way back to the founding.

Pam Karlan: And Eugene Debs obviously, since he ran for president, he was a native-born American citizen. And so eligible to run. But a lot of the people in those World War I-era cases were recent immigrants to the United States, often not yet citizens.

Evelyn Douek: Absolutely. And it’s amazing … it’s also amazing how little of a difference that makes actually in the analysis. So one of the next cases that you read is a 1919 case Abrams, where Holmes gives his dissent. So, Holmes, who had written the opinions for the court in the first three decisions that I just mentioned, he has this wild summer where a group of friends of his try and convince him no, Holmes, you’ve got this wrong. You have to understand how important free speech is. And Holmes, who otherwise in other areas, had been very deferential to legislative democratic experiment—he also wrote the iconic dissent in Lochner—comes around to this view that free speech is really important and you can’t actually have democracy and democratic experiment without free speech.

And so he writes this important iconic dissent in Abrams where although he doesn’t use these words, it’s the origin of the “marketplace of ideas” metaphor. The idea that the best test of truth is for its ability to get accepted in the market. And that opinion was all about immigrants, immigrants to the United States.

And it doesn’t matter to Holmes like the immigrant status of these people being prosecuted is irrelevant. Their speech still should be protected. And so one of the most famous opinions in the free speech canon is written about the speech of immigrants.

Pam Karlan: And then we have this kind of long period between the wars where there’s not a lot going on with free speech doctrine.

There is some obviously, but not so much core political speech. I think of Barnette as maybe the leading free speech case, and that’s a case really more about the right not to have to speak than about the right to speak. It’s a case, for those of our listeners who don’t know it, about mandatory flag salute by school children. But then we have another round, again, tied to a kind of xenophobia during the red scare—during the Cold War red scare—as opposed to the 1919 red scare.

Evelyn Douek: Yeah, so Holmes and Brandeis in these original decisions in 1919 and the 1920s they start to dissent. They come around to this more speech protective view, but they don’t convince their colleagues on the court. So they remain the minority view on the court in the nine, in, in those in the early 20th century. And it takes a couple of decades. In the interwar period, the court does start to develop a much more sort of speech-protective, or more speech … more solicitous view of the importance of free expression, but certainly it doesn’t flower into the modern doctrine until much later. And the second red scare … again, the Court just as in many other areas, it doesn’t shower itself in glory in these periods of national security threats and national security fears. And there are anti-canonical decisions from the second red scare as well, Dennis being the most famous where people are prosecuted for their views and their communist … their membership of the American Communist Party, and that’s upheld.

But during this period, and what is seen as governmental overreach and the reaction, the shame, that the court feels for, I think, for upholding these decisions, it starts to develop what we see, what we understand now, and what we recognize now as this highly speech protective modern First Amendment doctrine.

Pam Karlan: And our First Amendment doctrine is not like other countries’ free speech doctrines. I’d love if you could compare a little bit for our listeners, the Australian notions of speech protection versus the U.S. notions.

Evelyn Douek: Yes. I want be a little bit careful here when I start to talk about free speech in Australia, because ironically, despite my accent, I’m actually much more qualified now to talk about First Amendment law than I am to talk about Australian law. But I can give a sort of a rough overview with the starting point being that Australia is the only Western liberal democracy without a Bill of Rights. So, it doesn’t have a set of explicit rights protections in its constitution. However, judges will do what judges will do. And at some point in the mid-nineties, they took a look at the constitution, they squinted really hard, and they saw the system of democracy that the Constitution set up and the fact that there’s representative democracy and people are voting for their representatives in Parliament. And they thought hold on, you can’t have a democracy and you can’t have representative democracy without some sort of freedom of political communication, without the ability for citizens to be able to hear from their representatives, debate what their representatives are saying, and then freely vote on an informed basis.

And so they implied into the constitution this freedom of political communication, even though there isn’t express language protecting it. But for whatever reason, it might be the fact that it’s implied or it might be cultural, it’s very hard to say, that has been interpreted much less broadly and much less robustly than the First Amendment has been.

And so, for example, Australia is widely known as the defamation capital of the world because of its weak protections against defamation claims. And this is widely understood as one of the reasons why Australia, for example, didn’t have a big Me Too movement because there were, there are weak protections for people that make those kinds of allegations about against people, including public figures.

But so that’s Australia, right? The defamation capital of the world. And then on the other end of the spectrum, you have the First Amendment, which is like world famous for being uniquely speech protective, like right up the other end. And as a sidebar, when I teach the First Amendment, I teach students all of the ways in which the First Amendment maybe isn’t as speech protective as it is widely reputed to be. And the ways in which it sometimes I think under-protects against speech. But that doesn’t change the fact that in many ways it is in fact very speech protective. And the emblematic First Amendment … the icon of the First Amendment is the idea that the Nazis were allowed to march in Skokie, right? Like the a, a literal group of Nazis, not like the colloquial oh, they’re a Nazi like literally…

Pam Karlan: No, these were, these were people in Nazi uniforms using the swastikas with Nazi salutes.

Evelyn Douek: Exactly this was not, just euphemistic Nazis, but actual Nazis. They wanted to march in a suburb of Chicago that had a high Jewish population and a high population of Holocaust survivors. And there was this sense of that’s going too far, or that they were denied a permit because of the harms that this would cause. And the court said “no, like if we abide by free speech here and we’re not going the answer to this problem is not speech protect suppression,” and so you have these two very different visions of what free speech is.

Pam Karlan: Yeah. It’s interesting because you came you came to the country, as you say, reflectively skeptical of a doctrine that protects genuinely harmful expression. And I would guess that, in the kind of pantheon of genuinely harmful expression, at least to the people forced to listen to it directly, Skokie is at one end of that spectrum.

Evelyn Douek: I think you come … when you hear this story overseas, and when you come here and you hear this story about the Nazis marching in Skokie, you’re like “That’s a bit much!? Like why do the Nazis need to march? There’s some sort  … there are really genuinely hard borderline cases about is this harmful speech or is this not? But I think, Nazis … I feel very comfortable saying they got it wrong. That’s not useful speech in the marketplace of ideas. We don’t really need to ventilate those views anymore. And so, I was really skeptical of a tradition that said no, even this, we need to protect.

But I’ve come around and part of the reason is because what I have come to understand is that this is actually not about the Nazis, and it’s not about the Nazis in Skokie, but it’s about the delegation of power to someone to decide which speech we get to hear and which speech we don’t, and the inherent tendency of those in power to declare that those that they disagree with are saying dangerous things.

Nazis are one thing, but there’s this more … there’s this broader concern, this systemic concern, about giving the government the power to censor speech, which I think is an inherently dangerous thing that needs to be delegated very carefully. And that’s something that I’ve only come to believe, I think more and more strongly especially in recent years.

Pam Karlan: Yeah, it’s a kind of interesting thing about, the, obviously in the United States we allow the Nazis to march in Skokie. In Germany, they don’t let the Nazis march. And that may be in part because their experience with the Nazis is so different from ours. Does that cause you a little bit of tension now as we’re seeing the United States in some ways becoming a more authoritarian country? I think that makes perfect sense in what you just said, which is if the country’s becoming more authoritarian, the First Amendment is more important than ever as a way to critique the government.

Evelyn Douek: Yes, exactly. There’s nothing that made me more libertarian than this moment. And I don’t think of myself as a libertarian generally but I think that … I look at the tendency of the Trump administration to punish people that the administration disagrees with or for saying things that are against the administration’s policies and that to me only speaks of the real need to have really robust protections for saying things that are critical of the government.

Pam Karlan: One thing that I don’t know how much of this you teach in your First Amendment course because one thing for those of our listeners who aren’t Stanford alums to understand is we have nine-week quarters, right? So we have the shortest … we have more quarter, we have more terms of school each year than most of our peer institutions, but each one’s a little bit shorter. And for example, in some schools they’ll teach freedom of speech and freedom of religion in one course, and obviously we split those up. But one of the things that I was thinking about when you were talking about that is that in addition to the free speech right, the direct free speech in the Constitution, there’s also the right to petition the government for redress of grievances as part of the First Amendment. And one of the ways in which people criticize the government is by suing the government and asking the judicial branch to strike down something that the government has done. And that’s an area where I think the Trump administration has been uniquely suppressive on the national level of petitioning the government for redress of grievances. If you think about what they’ve been doing to law firms….

Evelyn Douek: Right, a hundred percent. To your point about the quarter system, like trying to teach the First Amendment in nine weeks is an eternal struggle for me. I generally just lop off all the other clauses and pretend that there’s only the speech clause.

So not only do I ignore the religion clauses, but sadly I ignore the right of assembly, which also extremely relevant as we sit here this week. The right to assemble and to protest the government is another very important right enshrined in the Constitution and implied in the First Amendment as well is a right of association, to associate with groups that the government doesn’t … disfavored groups, but also just the right to be in political community as an important way of dissenting. And yes, as you say, the petition clause as well. So all of that gets, gets thoroughly ignored. And I apologize to my students, but yes I think all of these ways are being targeted by the  … we’re basically going through a laundry list, right, of the ways in which the Trump administration is restricting the public sphere to prevent certain forms of dissent.

Pam Karlan: Yeah. And one of the things that a lot of your writing has been about is the first amendment in a different technological era. How do you see that playing out? That, on the one hand we have more capacity for individuals to speak, in a way … the old idea of somebody on a soapbox with a megaphone, you could only reach the people within the range of your voice. And now you can reach everywhere. And yet at the same time, we have more threats to free speech than ever.

Evelyn Douek: Yeah, it is obviously true that the internet in general and social media in particular has radically transformed our information environment. And I think we are barely beginning to understand how its effects and what it is doing to society and to democracy and how to think about these extremely powerful speech technologies, which I think, the traditional story goes that they were inherently democratizing, inherently progressive instruments that were going to exactly as you say, give everyone a soapbox and allow everyone to speak. And then there was this dramatic backlash against social media and the internet for all the pathologies that are also introduced into the social media sphere … into the public sphere because Yay, everyone can talk! Oh, no, everyone can talk. And you don’t have gatekeepers in certain ways, managing the information environment in, in, in the same way. On the other hand, that can be really great. Like gatekeepers weren’t always good at their job, and they certainly weren’t always democratic. And so I think we are still really wrestling with this, but I guess … I also go back to the principle that we were just discussing about distrust to the government in making those decisions. The principles that are in these early dissents of Holmes and Brandeis that I think still hold true despite the dramatic changes in technology in the intervening century.

That for all of the problems that we have in our online public sphere right now, and they are dramatic and there are certainly extreme problems with delegating to Elon Musk, Mark Zuckerberg, our new, demagogues, like the power to decide the shape and rules of the online public sphere. I still feel very strongly that letting Trump decide what the rules should be for what we get to say online would be much worse.

Pam Karlan: When you say, it’d be a terrible thing to allow Trump to do this, there’s also … I don’t think since the end of seditious libel that we’ve seen the government go after major media in the way that we’re seeing in this administration. The defamation suits that Trump has brought against the pollster in Iowa, against CBS, the mergers thing with Disney and all. That seems new. Everything old is new again in some sense, but it seems to be almost going back to that era, but even more personalized.

Evelyn Douek: So I think that’s absolutely true, and I think one of the things that the Trump administration has been very effective at doing is what we would call, what First Amendment scholars call “jawboning,” right? Which is wielding the vast economic, political, regulatory power of the federal government to pressure private actors, whether they be speakers themselves or media companies or universities to stop saying certain things or to regulate the speech of others so that they don’t say certain things. And what I mean by that in this context is: I think many of the things that you just mentioned would run into significant First Amendment problems, right?

Like these defamation claims, these … the news distortion claim against 60 Minutes, all these, yeah…

Pam Karlan: You, you think to yourself at first, this is a thing that should be dismissed on the pleadings, but…

Evelyn Douek: Completely, but it doesn’t matter because these companies and universities like the pressure that the administration is putting on universities to change their speech rules, all of this, even though they would have very strong First Amendment claims, they need certain things from the federal government, right?

They need merger approvals, they need federal funding. They need to be generally not held up in regulatory processes and investigations all the time. And so their incentives are to comply, or to change their speech, or to comply with these informal demands or these formal demands that if they actually went to court would get thrown out in the first instance because they just don’t want the headache. And I think that is a very pernicious threat. And it shows that no matter how strong First Amendment law is on the paper … on the pages of the U.S. Law Reports and no matter how robust the free speech doctrine is, it still really depends on private actors and courts being willing to uphold it. And a much more sort of broader cultural defense of free speech.

Pam Karlan: One of the places that we’ve seen the Trump administration going after people most vigorously based on their speech is in a series of cases involving, basically grabbing graduate students off the street and jailing them for comments they’ve made in connection with the war in Gaza. Can you tell us a little bit about what’s going on there?

Evelyn Douek: Yeah, it’s just such a jarring image to see in this land of the First Amendment that is so proud of its free speech tradition, to see the administration, and I really don’t know any other way to put it, but rounding up dissidents. It is literally grabbing students off the street … Rumeysa Ozturk, in Cambridge, Massachusetts, grabbing her off the street because she co-authored an op-ed that was critical, I think it was her university’s investments or failure to divest, but generally us policy towards Israel in light of the war in Gaza. It is so reminiscent of the cases we just talked about, right? The 1919 cases of political dissidents who were rounded up for pamphlets criticizing the American War effort. And here we are again. History doesn’t repeat, but it rhymes. And it is incredibly jarring to watch these images play out in the headlines and, to me, that analogy shows why this is just so anathema to the First amendment and to free speech values and to a free speech culture that this country …

Pam Karlan: This is, this is core political speech. This is not the sort of, obscenity, dirty movie speech where yes, we protect it, but we don’t think it necessarily has any value, or commercial speech where it’s really just about trying to sell somebody a product. And those have always been thought of as more peripheral. They’re protected obviously, but they’re more peripheral. And this is the core of why we have a First Amendment.

Evelyn Douek: Right. It’s what the doctrine calls “high value speech.” And there may be listeners to this podcast who think I don’t think that’s particularly high value, and that’s fine, like you don’t have to agree with those views to understand that the answer cannot be, “Oh, if I disagree with those views, I need to suppress them or I need to lock up the people that say them, and I need to deport anyone that has these views that I disagree with.” The answer is, “Great, disagree by writing an op-ed yourself. Disagree by giving a speech that refutes the claims?”

Pam Karlan: Yeah. Or just don’t listen to the speech. I mean you and I both know there are news stations we don’t watch. There are publications we don’t read. There are blog posts we delete when they come in on our … when they come in on our on our scholarly list serves, because we think that people who are writing them are crazy or evil. But it’s our ability to do that, not the government’s and these attacks on foreign students … is that designed to also chill everyone or is it just designed to chill foreign students?

Evelyn Douek: It has to be both, right? We can run a natural experiment here and talk about which of us is chilled, but I will say as a green card holder, I felt the chill watching these headlines. What it makes very clear is that the administration does not like these views. It does not like these views being expressed. And to the extent that it can find levers to punish people for expressing these views it will pull them.

And it is not going to be shy about pulling it. In fact, the administration has done this in such a spectacular way, like grabbing the students off the street. It’s intended to be a spectacular, I think, so that people see these images so that you only need to punish and lock up, what is it, 3, 4, 5, 10 students, but you silence thousands and thousands of them who say it’s not worth it anymore for me to speak my mind because I don’t want to spend months in a detention center, even if ultimately, my First Amendment claim is vindicated, even if ultimately I win in court, I don’t want to spend months in a detention center in Louisiana, which is a totally understandable preference.

Pam Karlan: Yeah. And the administration isn’t just trying to force the student … directly deal with the students, it’s also trying to force their universities to crack down on them. And is that … one of the hardest doctrines, I think, for some students to understand the boundaries of in First Amendment is unconstitutional conditions.

Evelyn Douek: Yes. Because it’s not understandable. The Court’s doctrine here is extremely confused and confusing. And I think Chief Justice Roberts has said something like, I can’t remember the exact wording, but “the line between what is permissible and not permissible is not always exactly clear” is his language in a case called Open Society.

But yes, you’re exactly right that the administration is trying to wield its significant power over universities, which it has through federal funding. The funding that it provides to individual researchers and to universities to get them to enact certain speech codes for their campuses, to punish certain student protests in certain ways, to crack down specifically on pro-Palestinian protest, all in the guise of combating antisemitism, which we can talk about more if we want to. But this is an example of what I was talking about before of jawboning, right? The administration is saying, “I’m going to … we will pull your funds, we will cripple your university. We will make it impossible for you to survive as the institution that you currently are unless you, university, change your speech rules change who you have on your faculty, change who you admit as students,” in ways that are all First Amendment protected rights of universities to make these decisions for themselves as part of academic freedom.

But again, the universities are faced with this terrible choice of sticking up for their First Amendment rights or losing their entire … such significant components of their budgets. And so that’s the situation that we find ourselves in.

Pam Karlan: Yeah, I mean that, that kind of weird, “We made a mistake, but we didn’t really make a mistake” letter that Harvard got that then led them into court was, it was we’re going to take away the funds for your labs unless you change the ideological composition of your comparative literature department, essentially.

Evelyn Douek: Exactly. So, seeking to leverage funding for one part of the institution to try and get the institution as a whole to change its policies on speech, and that pretty clearly is a violation of the unconstitutional conditions doctrine. It’s a violation of the rule against jawboning.

But again, we have this problem, which is that these institutions don’t want to win the First Amendment battle but lose the federal funding war. And what happened with that letter, like the reporting suggests Harvard was negotiating with the administration over a whole bunch of things before it got that letter for exactly these reasons that I’m talking about. That the incentives of the university is …  even though it has all of these rights. To make these choices, it doesn’t want to go to war with the federal government. No one wants to go to a war with the federal government if you can help it. But that letter that got sent by mistake overextended the government and it made Harvard have to stand up and fight because it so imperiled its core academic freedom and its core sort of identity and as an institution.

But meanwhile, we see Columbia has taken the other path and so far hasn’t sued and challenged the administration’s actions.

Pam Karlan: And the costs to the … I think the point you’re making about the costs of fighting these things mean that even if you can win, at the end of the day, there’s that old cliche that the process is the punishment.

Evelyn Douek: Exactly. The process of all of the litigation and going to court, and in the meantime, like if you’re an international student overseas or you’ve just been admitted to Harvard, for example, it doesn’t matter if they like ultimately win in court and all of these visa revocations or the suspension of Harvard’s ability to host international students is all revoked on First Amendment grounds…. becasuse right now, if you’re overseas, it doesn’t look so great to come to America and study it at Harvard.

Pam Karlan: Yeah, and one of the things that … if you think about one of the things that makes American universities great is that they do attract people from all over the world to come here. I used to teach undergraduate course on Machiavelli in Madison. One of the things Machiavelli says about what made the Roman Empire great was its ability to attract the very best talent from all around the empire to Rome. And if you think about the thing that has made America such a leader in higher education is that we get the very best people from all over the world to come here, and some of them stay, but lots of them, it’s just they contribute while they’re here to, people’s perspective and people’s understanding.

Evelyn Douek: And then they go back home and they bring all of these wonderful stories of America and the education that they received in the United States and all the wonderful things that they learned and saw here.

I just think … I’ll just say on a personal note: I am watching this play out and my life would not be possible now. I was an international student at Harvard in 2016, 2017. I was there on a visa and then ultimately got a doctorate at Harvard and that made it possible for me to have this wonderful job. I think I have the best job in the world and to have this green card and work at Stanford and all of that would not be possible in current conditions. And that’s maybe no great loss to America, no, Evelyn Douek is not the big loss. But you aggregate that in the thousands of people who are now making these choices not to come here or who can’t come here. And I do think that is a significant loss to the intellectual vibrancy of this country.

Pam Karlan: I think we have the answer here to your question, which is, can I teach the First Amendment if I only have a green card? You’ve done an absolutely amazing job today on the podcast of teaching our listeners about a whole lot of the First Amendment, and we are very lucky to have you as a colleague and to have you here teaching us about the First Amendment.

Thanks to our guest, Evelyn  Douek. This is Stanford Legal. If you’re enjoying the podcast, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.