Show notes
In this episode of Real Talk, KJK Student Defense Attorneys Susan Stone and Kristina Supler are joined by Eugene Volokh, a leading First Amendment Law Professor from UCLA. Topics they discuss are related to the First Amendment. The conversation includes how the internet impacts Free Speech, what responsibilities the Social Media Platforms have towards free speech, and how Free Speech impacts abortion, fraternities and sororities, as well as housing laws. Links: Eugene Volokh's Bio (UCLA Webpage) Free Speech Rules Videos: https://FreeSpeechRules.org Show Notes: (02:40) Has the internet changed the First Amendment on Free Speech (03:33) How the Supreme Court views Online versus Offline Free Speech (04:41) How Search Engines Can Reveal Your Court Case (06:08) How Posting on Social Media Can Open You To a Lawsuit (06:44) What Posts Can You Go to Jail For (08:05) Do Social Platforms Have the Legal Right To Remove People From Their Platforms? (13:35) Do Social Platforms Have the Legal Right to Curtail Hate Speech (15:40) What is Doxing? How Can Social Platforms Prevent This from Happening to You (16:58) What Courts Say About Publishing Your Information (19:39) Should Schools Police What Students Are Publishing (20:14) What Rights to Public Universities Have For Policing Students Posts (21:39) Private Universities: What Rights Do They Have For Policing Posts (23:07) Can Admissions Departments Reject Students for Previous Posts (25:33) How First Amendment Protections Extend to Clothing (26:20) How a Toy Gun Can Land a Student In Hot Water (28:16) Students Today and Views on the First Amendment (30:49) Can People Protest For Protections Related to Criminal Conduct (32:24) Can People Get Exemptions By Saying a Law is Against Their Religion? (33:10) What is the Religious Freedom Restoration Act (35:07) Can Businesses Prevent Men and Women From Working Together Based On Religious Beliefs? (36:58) Can a Woman Get A Religious Exemption For Abortion Where It's Illegal (40:30) How Courts Protect Your Right to Expressive Association (41:49) Under What Circumstances Can You Exclude Someone From Living With You Based on Race, Sex, Sexual Orientation (44:03) First Amendments Rights and Fraternities and Sororities. Transcript: Susan Stone: Kristina, can we geek out today and talk about the First Amendment? Kristina Supler: I think we do that every day, but Susan Stone: let's, okay. But let's talk on our podcast about the First Amendment, because our practice is often at the intersection of free speech when it impacts and conflicts with different types of student issues, like cancel culture or when students get disciplined, or Greek life issues like the Freedom of Association, uh, less often discussed First Amendment issue. Susan Stone: And it's difficult to balance the idea of the free exchange of ideas versus saying whatever you want, just because you wanna say it when you wanna say it and where you wanna say it. And it seems like everybody today is a lot less tolerant of views that aren't their own and cancel culture is becoming a very large part of our practice, which is why we launched our reputation management section. Kristina Supler: We are very pleased to be joined today by Professor Eugene Volokh who is a leading First Amendment scholar at U C L A, where he teaches free speech law, religious freedom law, church, and state relations law, among many other classes. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor, and the US Supreme Court, and also for Judge Alex Kazinski on the Court of Appeals for the Ninth Circuit, who's also very well known, Susan Stone: uh, and a court we've practiced Kristina Supler: in. That's right. Yep. Um, Eugene is renowned for his textbook on the First Amendment, and he's actually one of the most cited law review article authors in our country. He's also the founder and co-author of the Highly Regarded Legal Blog, the Volokh Conspiracy, which is now hosted at reason.com. Kristina Supler: Thanks for joining us today. Oh, very much. Eugene Volokh: My pleasure. Susan Stone: And I should say I seasoned him. He was at a conference that we were at and you saw me inching up to Eugene, and I'm thinking I am going to make this person my friend, and talk about the First Amendment with him. So thank you for being on our podcast. Susan Stone: We're gonna start with a question broadly for our listeners. Eugene, how has the internet changed the way we view the First Amendment and freedom of speech in a very big way? And then we will drill down and funnel down that question Eugene Volokh: well, depends on, uh, whom you mean by we. It hasn't so far, at least seemingly changed the way the justices view free speech or generally lower court judges, or in many ways, lawyers generally speaking the same kind of speech that is constitutionally protected offline is constitutionally protected online and vice versa. Eugene Volokh: Occasionally there have been times when. First Amendment law has turned a lot on the medium of expression, so for example, radio and television. Broadcast radio, television, not cable, let's say. Were, uh, were and probably still are seen as more regulatable for historical reasons. From the 19 teens to the 1950s, movies were seen as not really protected by the First Amendment, but the internet ever since near its birth as a popular medium. Eugene Volokh: Back in 1997, the Supreme Court said, speech on the internet is, Treated under the same rules as speech off line. So as a legal matter the internet hasn't changed First Amendment law much. Now I do think that people's reactions to various free speech questions may be affected by the internet. So, for example, I think a lot of people view things like Facebook and Twitter, those kinds of social media platforms, YouTube also and TikTok and various others as kind of part of their right to free speech and they get upset, understandably. Eugene Volokh: When those platforms restrict them, even though they're private platforms. So people would've probably said if the, if the New York Times refuses to publish my letter to the editor, well, of course, you know, they only publish as few too bad, but. But that's fine. Plus they get to decide where they want to publish and what they don't. Eugene Volokh: But I think the same people might very well bristle if Twitter or Facebook de deletes their posts for understandable reasons. Again. and, and there's an interesting question of whether that should affect the legal understanding, but but my guess is that at least it does affect people's understanding. Eugene Volokh: Another example has to do with access to court records. There's a longstanding tradition That material and court records is open to the public. Open to everybody. Yes. But it used to be before the internet. That meant that if you really wanted to get something on a court record, like maybe if you were a reporter and you were being to pay to write about lawsuits, you'd go to the courthouse, you'd go to the basement, you'd look at the, uh, at the files and you'd write about it. Eugene Volokh: But most, most court records would be basically invisible to. Now that they're all on the internet and often directly searchable, people get really upset that every case that they've been involved in, whether it was a witness as a plaintiffs, the defendant is a criminal defendant, as a victim, is now on the internet. Eugene Volokh: And people Google their names and they, they figure out uh, the stuff about them. So again, I do think the internet changes people's perceptions of information, of speech and the like, even if it hasn't changed the legal rules, at least. That's Kristina Supler: actually a perfect segue to the next question I wanted to ask you, which is when you are speaking to, let's just say lay people, not, not judges or lawyers and, and speaking generally or more broadly about the First Amendment, what do you say? Kristina Supler: In terms of people who sort of have this idea that, well, on the internet, I'm, I'm an anonymous person, I can say whatever I want. It's the internet, it's the worldwide web. What do you say in terms of, well, maybe not quite there, there are some repercussions Susan Stone: and that would be contained in the terms of service of the providers? Eugene Volokh: Oh, well, I think there are two questions lurking in here. One is somebody posts something. That, let's say, accuses someone else of some crime and then they get sued for libel too, not a newspaper. Why are you suing me for libel? Well, it turns out that. There are restrictions on speech. So for example, if you, especially if you say something knowingly false about someone else that damages the reputation, you could get sued and maybe, maybe before the internet, if you just said it orally, probably would be a lot harder to catch you and, but with the internet now, you could get caught. Eugene Volokh: Likewise, if you post something threatening. You could get prosecuted for a threat and people might say, well, what about free speech? Well, there are some narrow but significant exceptions to free speech, like for true threats of illegal conduct, like for defamation such as libel and the like. So people do have to remember that something that they just whip out in and angry or drunk or foolish moment. Eugene Volokh: To me, never, never you damaging. Today, , there's a separate question. Which is, well, what if it's something that violates, say, Twitter's terms of service or it doesn't even violate them. You know, private entities can generally remove your material or kick you off uh, for, uh, for whatever reasons they want right now. Eugene Volokh: At the same time though so how is that different from the things we started? Well, first of all, you're the, the, the downside to you, we have technology is pretty limited. Like people value their ability to tweet or value their ability to post on Facebook. But I think most people would rather, would rather get kicked off of Twitter than go to jail. Eugene Volokh: Uh, I would agree. , Susan Stone: my god, that is a bold statement, but, Would you take the position that you agree with decisions to pull someone off of Twitter like Kanye West or Donald Trump? Eugene Volokh: Well, so it lot depends on what you mean by a Greek. So for example, I, I think that that large wealthy platform corporations like Twitter and Facebook should not be. Eugene Volokh: Essentially interfering with public debate about elections by taking government officials or candidates for office and kicking them off of their sites. Now, maybe they have the right to do that. They certainly have the legal right to do that. At least in most states. There's some state laws try to limit that. Eugene Volokh: It's an interesting question whether they're constitutional, but they might very well have the legal right to do that. One might still say that's not really good for. When a platform, just because it happens to have a lot of users and be economically extraordinarily wealthy and powerful, that it should be able to leverage that economic power into political power. Eugene Volokh: So that's a lot more of a concern with regard to candidates may still be applicable to Kayne West. Well, by the way, I think he is talking about running. For president, but uh, think it's particularly dangerous when they do that with regard to credible candidates for office. Because if an election, which could have been 51 49, 1 way is swung 51 49 another way because. Eugene Volokh: Uh, Jack Dorsey or Elon Musk or, uh, Zuckerberg decide that they, that they don't like a particular kind of speech, even for good reason, decide that that may be something we might be troubled by. We may say they should have the legal right to do this, but we might suggest that they ought not do it. Eugene Volokh: There's a separate question of may the government step in and say, You might think that you are like a newspaper, which gets to decide what's in it, put in its pages. You might think you're like a bookstore, which gets to decide what books to sell. But we think you're actually more like the phone company, which isn't entitled to say, we're gonna cut off someone's phone line because they're communists. Eugene Volokh: Or they're recruiting for the kkk, or they're recruiting for Antifa, or something like that. So, Is that permissible? Would it be permissible for the government to say, we're so worried about you being able to leverage your economic power and your ownership of this tremendously important means of communication into political power that we're gonna require you to be viewpoint neutral in your decision. Eugene Volokh: So not to kick off people because they're racist or anti-Semites, or because they're spreading particular views about covid or about elections or. That's an interesting and difficult question, and maybe the answer is that those platforms would have the right not to say, recommend certain posts not to pitch those posts to users as you might be interested in this or that because that's their speech, but might be required to host it, to host those posts on their. Eugene Volokh: So it could be that certain kinds of regulations as to the, what I call the hosting function of platforms are constitutionally permissible, whereas regulations of what I call the recommendation function of the platforms, which is a lot more, their speech would be impermissible. Eugene Volokh: So I am really wrestling with that. Eugene Volokh: Is the, are these providers more like a telephone service company and we don't want the government listening in our co in on our conversation? Well, Eugene Volokh: I'm sorry if I can interrupt. I just wanna make clear the telephone point is not about privacy, it's not about confidentiality. Thank you. Even if somebody is widely known to be using a telephone line as a communist recruitment line, or a kkk, get out the vote line. Eugene Volokh: They're promoting it this way. Nobody's listening in on anything. It's well. still, then a phone company is not allowed to say, we're going to cancel your phone line because we think you're using it for evil purposes. No phone companies have to serve everybody so long as they, so long as they pay they can't engage in viewpoint based discrimination among their subscribers as opposed to, uh, among their users, let's say, the people who have phone lines as opposed to say a newspaper, which. Eugene Volokh: And probably should decide which op-eds to publish based in part on their viewpoint. Susan Stone: Thank you for that clarification. Would the barometer of censorship move up as the language moves from hate to calling for violence? Does that change your view? Is that like yelling? Fire in a theater. When you get on Twitter and say, this person is bad, cancel them, hurt them, or this candidate, let's storm the capitol. Susan Stone: I mean, when do you think there is the obligation? When does it really change from a moral obligation to a legal obligation to intervene? Eugene Volokh: Okay, so again, we have. Several different things going on here. One is shouting fire in a crowded theater. I just wanna make it clear, the Supreme Court did say in a case, which actually since then has been overruled in considerable measure shank of the United States, uh, that the First Amendment doesn't protect falsely shouting fire in a crowded theater and thereby starting a panic. Eugene Volokh: So that was already a pretty narrow category of things that indeed are legally punish. So I wanna bracket this question of shouting fi…
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