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Landry Ayres: Welcome to Zooming In at The UnPopulist. I’m Landry Ayres.
Today we’re diving into one of the most pressing issues of our time: free speech. Our host Aaron Ross Powell is joined by a special guest, Ken White—better known online as Popehat—a First Amendment expert, seasoned criminal defense attorney, civil litigator, and cohost of the Serious Trouble podcast. Together, they’ll explore some of the most pressing questions in free speech discourse today: Have we become too quick to label some speech as offensive? Are we idealizing a past where free expression was supposedly more open? And, most importantly, how can we foster richer, more nuanced conversations in an increasingly polarized world?
Stay tuned as Aaron and Ken skillfully navigate these difficult waters.
A transcript of today’s podcast appears below. It has been edited for flow and clarity.
Aaron Ross Powell: Let’s say I am a comedian who has a special on Netflix and I get up there on stage and tell a bunch of derogatory jokes about minorities or trans people or any other category and people get mad at me about this. The employees of Netflix get mad and maybe I don’t get invited back to another special, or maybe my special is shelved, or maybe people heckled me at a future show. Have I been wronged? Have the people who have done this done something wrong to me and to my right to express myself? And have I been censored?
Ken White: You started with an easy question. Thanks! So, wronged is a philosophical question, not a legal one. You haven’t been legally wronged in the scenario you lay out. The question is whether, philosophically, you’ve been wronged under our concept of free speech culture.
We talk a lot about free speech in America and I try to encourage people to define their terms so it’s clear what we’re arguing about. So, you’ve got free speech rights which are rights given to you by law that makes it difficult for anyone to officially punish you through the courts for what you said. But then there’s free speech culture. This is a set of norms and sensibilities about how we think we should react when we don’t like what other people had to say.
Under one particular free speech culture, one particular cultural set of free speech values, that comedian has been wronged. However, that assertion doesn’t always bear up to a lot of scrutiny because when you talk about cancel culture or wronging people by violating free speech culture, you’re really complaining about how people are speaking. So, I think it’s fair to ask: Are we treating all speech the same? Are we as concerned with the audience and their speech rights as we are with the comedian with the Netflix special? The people who work for Netflix … should we be encouraging their reaction, their speech, or are we putting them in some separate category where we don’t want them to speak?
One of my main quarrels with the cancel culture debate and a lot of the culture wars we have is what I call the “first speaker problem,” which is that in these discussions, we just arbitrarily select someone as the main character, the speaker, and after that, we’re only concerned with that person’s interests. Would this stuff deter them from speaking? Would it hurt their feelings? Would it make it less likely that other people would want to speak like that? My question is: Are we asking those same questions about other people? No one’s asking: “Hey, did this Netflix comedian, did that routine denigrating people based on being members of some minority group, did that make those people feel more free to speak in America? Did it encourage them to come forward and be part of a dialogue?” We generally don’t answer that question. We generally don’t ask it. People think it’s completely ridiculous or irrelevant.
But my position would be: you’ve just arbitrarily chosen someone who decided to lionize their speech and to give it, in addition to legal protection, cultural protection. Is that philosophically coherent?
Powell: There’s a historical myopia in a lot of these conversations. “Does denigrating these communities make members feel less able to speak their minds?” is important for pushing back on one of the narratives regarding cancel culture, which is: “It used to be the case that you could say this stuff and no one was bothered by it.” It’s this, “We’ve become a nation of weaklings who are offended and that’s bad. It’s bad to be weak and it’s bad to get all worked up over minor things when we didn’t used to.” But it seems to be more the case that, in the past, if you were a member of the gay community, if you were black, or other underprivileged minorities, and you were made fun of by people in power, you didn’t have a voice to respond to it. So, the silence was not, “We were all okay with this.” It was that the people that you’re denigrating were, for various reasons, unable to speak up.
White: I think that’s certainly true. But I think more fundamentally the proposition that we used to be okay with offensive speech before, unlike now, is nonsense. We just changed around what we got offended by as a nation or as a culture, as the culture changed. Plenty of things have been treated with pearl clutching and couch fainting in the past, whether it’s congressional hearings over rap lyrics, or extreme upset over art that is offensive to some religions. Even today, whether it’s people who at one side of their mouth say, “You shouldn’t silence comedians just because they tell racial jokes” but are outraged if someone invites a pro-Palestinian speaker … America has always had all types of offense and they’ve just changed what those are.
“Both liberals and conservatives have a long history of wanting to censor. Nobody is a free speech hero when it comes to politics.” — Ken White
So, now, a lot of what you would hear in a Lenny Bruce routine would not be seen as particularly transgressive or offensive, but different things are. That’s just cultural tastes shifting. And to say it reflects some sort of weakness in America to me is culturally chauvinistic—that particular things that I like are the true American culture and there can’t be any drift from that.
Powell: We used to be much more willing to clamp down on speech than the free speech warrior narrative today makes things out to be. The Dixie Chicks went through their own round of right-wing canceling back when they criticized President Bush. One response to that is, “Okay, that undermines the cancel culture argument that things are worse now than they used to be.” But another response might be, “So what? Just because we used to be critical of certain kinds of speech, and now we’re shifting what we’re critical of, doesn’t make the shifts okay”—that, “You used to be able to make fun of black people and get away with it, but now if you make fun of trans people, you get in trouble,” isn’t an argument that you should just kind of accept being in trouble for making fun of trans people. Rather we should just see it as, “It was wrong to censor speech before, it’s wrong to do it now. I’m right about cancel culture, even if things were worse in the past than I’ve made them out to be.”
White: Well, you’ve begged the question by using the word censor. Because when we’re talking about cancel culture, when we say “censor,” we generally mean other people exercising their free speech rights in a way I don’t like—criticism or condemnation that’s too mean, too excessive, too disproportionate. So, the first thing we’re doing is reframing speech we don’t like as censorship, which I think we have to raise an eyebrow at and question before we accept it.
The other thing is a lot of it is frankly driven by a particular political narrative. So, the dominant narrative is that these terrible liberals who are censorious and that’s why the liberal colleges are also censorious and the right is the haven of free speech and First Amendment freedoms. Historically, that’s complete nonsense. Both liberals and conservatives have a long history of wanting to censor. Nobody is a free speech hero when it comes to politics. No side is. But the recent narrative is really being used in service of politics, a particular political preference, particular political narrative, and it’s using the ruse of being concerned about free speech as a hook to score political points. I’m not convinced by it.
When you’ve got people saying, “Cancel culture is terrible, you can’t speak freely in this country, and, by the way, we absolutely should go back to punishing people for flag burning, and it should be much easier to sue people who say mean things about the politician I like,” and that sort of thing … then I don’t buy it. I don’t buy that they’re genuinely, sincerely concerned with free speech principles. I think they’re just like all of us, where our default is, I want to protect the speech I like and punish the speech I don’t like. I think that’s the human default.
Powell: Is there a justification, though, in the contemporary scene, of being concerned that the nature of suppression of speech has shifted? So, you’re a conservative and you are saying conservative things. And you and I are having this conversation over the internet. Much of our conversation happens over the internet that is on pipes that are owned by large corporations that are talking to the government. If I’m shouting something in the public square in 1950 and someone yells at me to stop, or I get told, “move down the block,” I can still shout that thing down the block. But if I get kicked off of Facebook and … well, it’s unlikely you kicked off of Twitter now, but if I got kicked off of Twitter, and kicked off of YouTube, suddenly it’s awfully difficult for me to find any sort of audience. That feels a little bit different.
White: I don’t accept the premise for a couple of reasons. Some years back, you could say, “What happens if I get kicked off of GeoCities and MySpace and LiveJournal and AOL forums, those titans dominating the market?” These things change over time. What used to be super popular becomes not as popular anymore. Twitter rose relatively abruptly. Other platforms will rise abruptly. This is not like being kicked off the street. So I don’t think it’s as permanent with respect to platforms like Facebook or YouTube. I think maybe you have a better argument when you’re talking about being kicked off of the internet companies that handle DNS and stuff like that. I can see having more concerns about that.
Long before Elon Musk took over Twitter, I was saying that Twitter can have a viewpoint and a sensibility and they can run it the way they want. If they want to kick off bigots, they can kick off bigots because it’s their place and it’s part of their branding and that’s their First Amendment right. Now that Elon Musk is running it and saying you can’t use the word “cis” and all sorts of other silly things and kicking off journalists who have criticized him, I’m saying he can do that. It’s part of his First Amendment rights. He’d spent $44 billion—more than most people spend for their rights—and he can run the platform the way he wants to.
So, when you’re complaining about being kicked off of these platforms, you’re complaining about other people’s freedom of association. You’re saying that the way other people choose to exercise their freedom of association, freedom of speech, is violating my rights. And that only happens when you give yourself this free speech values cultural right that people have to associate with you. It’s the, “You guys have to play with me.”
Powell: Does this mean, then, that we can reduce, maybe not all, but a significant chunk of the debate about free speech right now to people who want to be jerks to others and don’t want to suffer any consequences and then present the consequences they suffer for being jerks as abridgements of essentially their right to express their jerkdom?
White: That’s probably a little harsh. But here’s the thing: As a country, we are not civically well-educated. What your country can put you in jail for saying, or not; what you can be sued for saying, or not for saying … seems to me pretty fundamental to being a citizen. And yet it is not taught very well in schools and most people don’t really know the details. I think a lot of the reasons we have these arguments is that people don’t really know what their legal rights are versus what these cultural expectations are. That’s why I’m an advocate for being pedantic and defining our terms and saying, “Okay, now I want to talk about free speech rights, the specific things that the law prevents you from being punished for saying. But then let’s talk about free speech culture and values. Let’s talk about how we think a good society should operate and how a responsible person should act decently in it in responding to how other people talk.”
“[T]he proposition that we used to be okay with offensive speech before, unlike now, is nonsense. We just changed around what we got offended by as a nation or as a culture, as the culture changed.” — Ken White
I think if people were generally more educated about the difference and about when their rights are rights and when there are cultural expectations, a lot of the arguments would be resolved.
Powell: On that topic of the state punishing you, there are obvious and clear examples. You say something and an agent of the state comes and arrests you and they lock you in a cage for having said it. But the government also does engage in indirect punishments, in the sense that they could say to Facebook, “Hey, we don’t like this guy.” And Facebook might feel, in like a jawboning sense, “They’re not going to prosecute this person for saying that thing. But if we say no to the federal government enough times, they have other ways to exert pressure on us.” So, rather than the government having to deal with being the censor, it can indirectly censor through pressures it can exert.
White: It can and at certain points that does violate the First Amendment. It’s clear that there’s a line. Where exactly the line is, is not as clear. This year [in Murthy v. Missouri], the Supreme Court punted rather than resolve a case that might have answered that. My kind of not-complete solution, but important first step on this, is that I think that all such federal government jawboning contacts with social media and other media attempting to get something taken down should be public and should be recorded. So, if you knew what the government was going after and who was doing the going-after, that would deter abuse by the government and help people resist it.
But sooner or later the Supreme Court is going to have to clarify what this means in the internet context, in the context of calling up Facebook or Twitter. And I think that’s fine, because to me, it’s all about the rule of law. So, if we have a well-defined rule for when that sort of thing crosses the line and becomes government-action violating your First Amendment rights, that’s great. And then we can know what our rights are and we can protect them.
Powell: How should we think about speech that falls outside of that? So, we’ve drawn a line, this is where the government can punish you, but there’s a lot of speech that falls on the other side of that line. Hate speech, for example, can be incredibly harmful to the targets of it, or what gets called stochastic terrorism can be incredibly harmful to the people who are the targets of it. And yet we don’t want to make that illegal. Most of us would acknowledge that kind of speech is bad and ought to suffer criticism or some degree of consequences. But you and I might differ quite a lot in our opinions in what we believe to be harmful speech, as the history of what was unacceptable speech and its evolution shows. So how should we think about that?
Should the answer be: If we really are committed to freedom of expression, then we simply accept all expression and respond to the stuff we don’t like with just cool and civil counter-argumentation? Or should we be thinking about lines where we say, “No, that is unacceptable and we are going to bring the hammer of social pressure and consequence down upon you even if we’re not going to lock you in a cage”?
White: I think it’s whatever I want, whatever you want, whatever any American wants, the speech that speaks to you, that is effective for you, that helps you express yourself, that makes you feel that you have contributed to a debate. There are a lot of people in the pro-free speech crowd who take this high-minded, “We need to engage everybody in a debate using the preferred ways of talking and not using logical fallacies and not silencing speech by being too harsh,” and my approach to that, again, is asking whether or not we’re applying that preference consistently. If you’re criticizing someone, “You know, your response to that guy who said a bigoted thing is too rough,” but you don’t say anything about how rough the bigoted guy is … people are gonna think you’re full of shit.
I don’t think it’s a persuasive argument to convince new generations of the fundamental free speech deal: that we won’t get the government involved in punishing people who are jerks because we can tell them that they’re jerks. But if you come up with this theory of free speech that derails that, that says, “The way to respond to bad speech is with more speech—wait, not like that, though, that’s too mean,” I don’t think anyone buys that deal. So that’s a long-winded way to say that we should feel free to criticize each part of a discussion. You know, someone says something that upsets a bigot, the bigot says something bigoted. I say something in response, someone says something in response to me. Every part of that dialogue is as open as any other part to people criticizing it and saying “That was rude,” “That was disproportionate,” “That was bad under our cultural values”—whether those values are not being a bigoted asshole or encouraging speech and not being a cancel culture person. All of it should be open to that type of criticism.
So, I’m not really a huge fan of the let’s be high minded and, you know, drink our conversational tea with our pinkies out type of approach to free speech. I think real people sometimes are rough and sometimes are rude and I don’t think we should be criticizing only one segment of the Great Conversation for those qualities.
Powell: I often worry about what we could call “weaponized civility,” which is when you have a minority group that has been oppressed or excluded for some time, so their voice has not been heard, and they’re systematically ignored, and if they speak politely, they’re ignored, and so then they speak rudely and they’re told, “We’re going to ignore you because you’re speaking rudely” or “We’re the dominant group that has the power structures in place, because we put them in place, and the only proper way for you to engage with us is participation within the structures we have built versus alternative ones.” I think a lot of times people fall into this weaponized civility without really realizing how it’s used as a way to keep the people on the margins still at the margins by telling them, “There’s a right way to speak, and if you speak differently, we’ll tell you to shut up.”
White: And not only marginalized groups. So, culturally, we act differently at different ages. Younger people are likely to throw more verbal elbows and to express themselves in a more vivid way. If you come in all schoolmarmish, saying, “Actually, you should have a formal debate,” that’s going to turn off young people. And that’s bad because, once again, we need each generation to buy into the deal.
“One of my main quarrels with the cancel culture debate and a lot of the culture wars we have is what I call the “first speaker problem,” which is that in these discussions, we just arbitrarily select someone as the main character, the speaker, and after that, we’re only concerned with that person’s interests.” — Ken White
I agree with the general proposition that we shouldn’t have the government punishing speech I don’t like. And I think this civility approach is a terrible way to do it. Unfortunately, a lot of the metaphors and images we use to talk about free speech are kind of dated and not too appealing to a younger generation. So, you know, take the marketplace of ideas. We say that things should get resolved not by government force but by the marketplace of ideas. Now, the phrase “the marketplace of ideas” is supposed to evoke, the marketplace—that’s something that reliably produces a fair resultThe marketplace analogy as something well-regulated and reliable may not be appealing to a generation that sees Elon Musk buying Twitter for $44 billion and then tanking it. I think we need that flow of younger people to find out what analogies, what metaphors, resonate with them. Someone’s going to come up with the perfect analogy to TikTok or something and that’s going to really resonate with people about why we need free speech and we need those people as part of the dialogue.
Powell: Should we be distinguishing as we’re talking about carving out these concepts and these norms. … One way to think about them is on an individual or interpersonal basis. So, you and I can have a discussion and I can be rude to you or I can be civil to you. You can demand civility of me or you can choose to ignore me or choose to walk away. And that’s an interaction between the two of us. Right now, at least until we publish this on The UnPopulist, no one else is exposed to any of the content of that conversation or the way we respond to each other. But the kind of speech that people are concerned about when they’re talking about the state of free speech in America is political speech, cultural and social critique sort of speech, religious speech, speech that is about the social environment and is happening within that social environment. The obvious example is, when you’re posting on social media, lots of other people are reading that exchange, even if it’s just you and one other rando on Bluesky going back and forth. So, the speech rules that you’re following are having a broader impact in establishing the norms and establishing the environment, not just in which everyone else’s speech is happening, but in which we have to live and work and be and have a government and so on.
So, it seems like you could say the rules for those things are different. Or that what seems to work on an individual basis and be fine can be corrosive in the aggregate. I can tell you a whole bunch of false stuff and that’s fine if it’s just you and me, but if I’m one of thousands of actors spreading a huge amount of disinformation through the polity, that can have really deleterious effects on all of us. Or it’s okay to be rude, but if everybody’s rude, it creates a breakdown in social cohesion. Or it’s okay to have a particular religious view, but if everybody is loudly championing that and attacking others, it harms religious minorities, and so on. And that seems to be where a lot of the calls for regulation or change or intervention come from is: it’s fine on the individual level, but hate speech or bigotry or views critical of certain groups become a real problem when enough people are doing it, even in an uncoordinated way. Is that a legitimate concern? Is that the kind of thing that we should be taking into account when we’re thinking about where we draw those lines?
White: Concerns are fine. It’s actions that are the problem. So, if we want to agitate for people to behave differently and to address social problems that way, that’s fine. It’s when we start putting pen to paper to create laws or abilities for the government to do something about it that we get into a problem. And that’s for a few reasons.
The first is there’s nothing new under the sun. So, one thing that increasingly irritates me as I slide further and further into grumpy old-manhood is that everyone thinks that all these arguments are new, that we’re facing these new and unique challenges to the health of society, but all these arguments have been made before. They’re the same arguments, just tweaked a little bit from arguments that were made to regulate obscenity, to regulate sending information about birth control through the mail, to regulate anyone saying anything positive about communism, to regulate people burning flags, all this stuff. They’re the same arguments again and again that this speech, whatever you think about it in the abstract and the individual, is really bad when you take it the aggregate.
“I think that all such federal government jawboning contacts with social media and other media attempting to get something taken down should be public and should be recorded. So, if you knew what the government was going after and who was doing the going-after, that would deter abuse by the government and help people resist it.” — Ken White
That’s exactly the argument the Supreme Court used in the Gobitis case where, before it corrected itself, said that, yes, schools can force children to say the Pledge of Allegiance even if they have religious reasons not to because it would be bad for the country as a whole if we didn’t officially enforce uniform rote patriotism. So, these arguments that are being portrayed as something new based on these new and unique challenges we’re facing simply aren’t. It’s the same issue again and again. It’s the same arguments again and again, tweaked for technology. And the argument that somehow we’re now uniquely vulnerable to propaganda or bad faith misinformation again is just ignoring history. You look at [William Randolph] Hearst and “Remember the Maine” and the campaigns throughout American history to whip up public support or opposition to stuff … it’s always been an issue and it always will be.
If you learn anything from studying the history of free speech, it’s that exceptions to free speech are enforced disproportionately on the back of less powerful people. The free speech rules, the free speech rights, don’t usually get developed by the super-rich people being suppressed because super-rich people don’t get suppressed or they have ways to get around it. It’s built on the backs of people without power, poor people, people of color. One of my favorite examples is a hate speech law that was passed by a small city on the East Coast. They came up with this new law that said that if you engage in fighting words—and that was their legal and constitutional hook they have based on race—against somebody, that’s a violation of the city ordinance and you could be arrested. The first year, there were 10 cases prosecuted under this law, and six of them were for hate speech against police officers. And those were all homeless people being rousted and arrested—probably mentally ill, probably drunk, lashing out at these police officers. That was the vast majority of what was going on. And that wasn’t an outlier. That wasn’t a bug. That’s the feature. Exceptions to free speech always get put disproportionately against people with less power. It’s not a coincidence that the first hate speech/hate crime case to reach the United States Supreme Court involved African American defendants accused of hate crimes against a white person. It’s not a coincidence.
So, the problem with being a First Amendment geek or First Amendment historian or so on is that you feel like Cassandra forever doomed to predict things but not being believed because if you look at the history of free speech disputes in America there are familiar patterns and they keep happening regularly and they’re going to keep happening.
Powell: How do we have a fruitful conversation about this, then? Because there are a lot of questions that we— culture and polity—need to come to answers on. There’s the question of: When is it appropriate for government to intervene to punish or put a stop to certain kinds of expression? Then there’s a question of: What should the norms be for speech? Because someone might say something offensive and we might think that’s offensive and it should have a social consequence, but the social consequence that’s being brought is way out of proportion with the weightiness of what was said, which I think is one of the primary objections a lot of people have when they’re talking about cancel culture. It’s not, “It’s okay to say these things and you should have no consequences,” but rather, “Being fired and having your life destroyed as a result of it is maybe a bit much.” So, we have to figure that out, and it’s not like we figure out one set of standards but those standards vary based on where you are and what the group is and the social norms within the different cultures and subcultures. These are all really complicated issues.
One theme is a lot of the participation in this debate is in bad faith. It’s not, “principles are really hard to figure out and just as hard, if not harder, to apply consistently. And so we’re going to disagree, but let’s try to figure that out.” It is, “I’m going to rhetorically use principles that sound good—everyone thinks free speech is great—in order to advance my own narrow interests, either unintentionally, or it can also just simply be consciously cynical and bad faith. … This is a particular rhetorical tool I can use to exercise power.” So, if I’m a cop, I can use this to punish these people that I don’t like, or if I’m a wealthy guy, I can speak in this language and fawning media will accept what I’m saying when what I’m really doing is punishing and excluding all kinds of speech. So for those of us who care about this stuff, how do we participate in an environment like that? How do we figure this kind of thing out? How do we know when it’s principled or not, or have fruitful conversations given all of that complexity?
White: First of all, I would say that if we want rights to be any part of the conversation, it’s essential that we start by knowledge, that we know what our rights are and how they work. Unless we’re gonna completely exclude a discussion of what the law should be, we need to know what the law is. I don’t mean we have to know like a law professor, but we need to know as much as we’re familiar with our favorite football team’s season. It’s not a big ask. We have to have a general sense of it. Once we’re there, conversations about this are generally held in more productive context. Social media is probably not the best place for it because—and I say that despite constantly doing it—it breaks things into small bites and it’s prone to a lot of yelling and arm waving, so I think willingness to have more complicated, longer conversations about things in the context where that can happen is good. Just the willingness to have a conversation like this is good even if we don’t come to agreement.
And then, again, to be the free speech pedant, defining our terms, keeping constant what we’re talking about and saying, “Aaron, right now I’m not making a point about the law, I’m making a point about how I think we should treat each other in society to encourage these types of debates.” Or the other category I use: speech decency. I’m not talking about free speech culture. I’m talking about how is it decent to address another human being? What is indecent in the way you treat other human beings? I think if we are clear about what we’re arguing about, the argument’s more productive. It almost has to be.
“[W]hen we’re talking about cancel culture, when we say “censor,” we generally mean other people exercising their free speech rights in a way I don’t like—criticism or condemnation that’s too mean, too excessive, too disproportionate. So, the first thing we’re doing is reframing speech we don’t like as censorship, which I think we have to raise an eyebrow at and question before we accept it.” — Ken White
And then just being the sort of people who are willing to talk about these types of things. Not everyone’s interested in it. I think if we are, and we encourage other people to be, and we engage other people, then it’s good. But coming from a place of ignorance, understandable, forgivable ignorance, or not caring about what the terms we use mean, not caring to be clear about what we’re arguing about … all those things really prevent a useful discussion.
Powell: We are recording this in the closing months of a presidential campaign when far more people are paying attention to political issues than they typically do. Freedom of speech has been a hot issue for many years now that a lot of people on the left and the right are concerned with, either in good faith or in bad faith. What do you see as the most immediate and pressing threats to freedom of speech, or areas where this question of norms and standards and participation are most salient?
White: If we’re talking about free speech rights, and what’s most vulnerable and open to change, I would say that … the stuff that is really hot in the culture war context is often in the most danger. You have a lot of people pushing Texas and Florida to create laws that purport to stop social media companies from moderating on their own platforms. Believe it or not, that is a risk to your right as an individual and your freedom of association, because things get used by analogy, things get used as precedent. The right not to talk to people, the right not to associate with people, the right to block that jerk on Twitter, are in some question because there’s such a huge political push for that.
Hot-button culture war issues like flag burning are always in some danger because there’s always a big push for that for constitutional amendments or for a judiciary that will interpret them in a better way. But I think it’s easy to overstate this. In general, the Supreme Court has held up better on free speech rights than they have on any other right. Most criminal justice related rights, due process, other rights, have eroded significantly from their high-water mark in the ’70s. Free speech in general has continued to be protected as long as you’re not a high school student where it generally has deteriorated. As long as you’re not in a few special categories like that, we’re better off now than we were before. But, as we’ve seen very forcibly in some recent Supreme Court decisions, that’s only as strong as a majority on the Supreme Court. There are forces that want to turn back on some of that, particularly in the area of defamation. There is a movement in some legally conservative circles to basically make it easier to sue people for defamation, to take away the actual malice standard that makes it extremely difficult to prove a claim that you defamed a public figure. So, in this era where the Supreme Court seems to be changing pretty rapidly and doing things we wouldn’t have imagined just a few years ago, that remains a risk.
Landry: Thank you for listening to Zooming In, a project of The UnPopulist. For more like this, make sure to subscribe for free at theunpopulist.net. Until next time.
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