When we say “democracy” is under threat in America, what is really being threatened? Often missing in the debate about “democracy threatened” is a simple but powerful notion: The best way to get at the truth is through a clash of ideas, driven by free and unfettered speech.
In this week’s WhoWhatWhy podcast, we talk with professor Corey Brettschneider. He is an expert on the US constitution, editor of the Penguin Liberty series, and a professor of constitutional law and politics at Brown University.
Brettschneider argues that we should view democracy not just as a process, a tool of governance, a way of casting and counting votes. What’s actually at stake in defending democracy are the underlying values that it represents: the free exchange of ideas that allows us to reason, debate, and seek the truth — concepts at the heart of the Enlightenment, and the design elements of the Founders when they shaped the US constitution.
Brettschneider sees free speech as perhaps the most fundamental precept of democracy, and explains why its infringement — be it by cancel culture or tyrants — makes democracy so vulnerable today.
He discusses the difference between political and cultural speech, the role of the mainstream media versus social media, money as speech, hate speech, and the human tendency to shut down speech from the other side.
Brettschneider also argues that the current Supreme Court’s talk of originalism is a mockery of the Constitution, and that the court may have recently crossed a legal Rubicon, which seriously undermines its own standing.
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Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. When we talk about democracy being under threat in America, what are we really talking about? When the integrity of our elections are on a knife’s edge, what does it really portend for the country? These things that we talk about are not necessarily ends in themselves, nor the details or specifics of the way we govern ourselves. What’s at stake is not just process, but the fundamental ideas of liberty and free speech, that allows us to reason, to debate, and to move forward. Some of the ideas put forth by the purity of free speech will be hateful, and it is the responsibility of those that believe most deeply in such speech, to call those ideas out, even while defending the right to express them.
We’re going to talk about all of this and a lot more today with my guest, Corey Brettschneider. Corey Brettschneider is editor of Penguin Classics’ Liberty series. He’s an expert on modern issues of liberty and constitutional rights. He’s a professor of constitutional law and politics at Brown University, and writes frequently for The New York Times, Politico, and The Washington Post. It is my pleasure to welcome Professor Corey Brettschneider here, to the WhoWhatWhy podcast.
Corey, thanks so much for joining us.
Corey Brettschneider: Thank you. I’m looking forward to the conversation. Lots to talk about, certainly.
Jeff: There’s indeed a lot to talk about. I want to talk first about this idea that the free speech and liberty lies at the heart of the things that we say we’re concerned about when we talk about the preservation of democracy, that it is things like free speech and liberty that really lie at the heart of that more than this abstract notion of just protecting democracy.
Corey: Yes. There are a lot of traditional arguments for free speech. Some, for instance, focus on the importance for personal expression. But the argument that I’m most partial to is really about the role of free speech in a robust democracy. And, for me, I think free speech isn’t just any right, but is as fundamental as voting. So, the example that I often give, inspired by and used by Alexander Meiklejohn, one of the most under-read but to my mind, the most important thinker about free speech in American history. He gives us a very simple way to understand it.
He says, “Imagine that we’re all in a New England’s style town meeting and we’re debating,” and I’ll just use my example, not his, we’re debating, say, whether to build a bridge on the north side of the town or the south side. And imagine that the moderator just decides that, “You know, one of these sides is just wrong or even stupid,” and so doesn’t allow, for instance, the north side of town people to speak at all.
And the point of the example, it’s a sort of a trivial example, of course, we’re going to get into much more serious topics, but is that, if you don’t allow people, not just to make their own arguments as they wish, but to hear all the arguments– And it isn’t really a democracy that a moderator that was intervening that way would really become more of an autocrat, not somebody presiding over democracy. And so, it gives us this fundamental idea that we’ve really got to be able to hear all arguments, certainly political arguments, political viewpoints, no matter how heinous, and also listen to them. And often, there are arguments that are bad and should be rejected, but a real democracy requires that kind of deliberation and open discussion.
And so that’s really, for me, why I think that free speech at this moment is so important, as you said in your intro, because we really are facing attacks on democracy, questions about what it is. And that’s really my starting point.
Jeff: And it really is, as Mill talks about, all the things that flow out of free speech.
Corey: That’s right, yes. I think for this idea about democracy, when you combine it with Mill’s argument, which is really about the way that we figure out in any society what the truth is, that there are two crucial ideas, and certainly, one place that we’re struggling as a democracy is in the face of all the falsehoods that’s being spread. One thing to say is we should just ban the false ideas, arrest people who are in QAnon.
And Mill gives us a way, I think, of thinking through why that’s not a good way to handle it. And his point is that, “Look, if you just criminalize some speech,” even speech that’s way off like that example of QAnon that’s false, is the way that he talks about it, and then we should talk about, I think, most of what QAnon was promoting, “we deny the ability through public discussion to clarify what’s true, and to show why the false ideas are actually false, and to defend the true ideas.” And his worry is that if we just ban the false ideas– First of all, government would do it incorrectly, it would ban the true ideas along with the false. Think about when Trump was in power, if he was able to decide what was truth and what was false, he should get an inverse of what should be even if you are attempting censorship for good reason. It’s a dangerous thing, a bad thing for government to do because it doesn’t have the ability to do it well. But even if you could single out the true from false ideas, if government starts to select that way, it denies, it starts to allow the ideas that are protected, even if they are the true ones to be held at the level of a dogma.
I think what Mill does in combination with this Meiklejohn idea of free speech being necessary to democracy, is show why robust discussion and debate have to be protected or we’ll lose the meaning of what is true, and it will become held, at best, at the level of a dogma. So those are texts written a long time ago but they’re really relevant, [chuckles] I think, everything that we’re talking about right now in politics.
Jeff: Right. And I guess the other question becomes, what is the responsibility of those that are free speech purists, and even the government in some cases, to respond to the hate speech and the misinformation that’s put forth?
Corey: Exactly. A lot of my professional life has been spent in answering that question, and I have a book that I’ve written, aside from the one that you mentioned, called When the State Speaks, What Should It Say? And that phrase of state speech is meant to answer your question, in my view. So, I think, absolutely protect all viewpoints, all opinions, from criminalization, but if government doesn’t actively take a role in promoting literacy about what’s true and what’s not true, and if it doesn’t defend certain very basic ideals of a liberal democracy, for instance, the idea that under law, under our Constitution, we’re all to be regarded as equals, regardless of race or gender or sexual orientation, that those principles, among others, have to be defended.
Now, how do you do that, that’s the question, if we’re not going to criminalize the bad ideas? I think government, through education, through monuments, through the obligations of public officials has to be promoting the ideals of liberal democracy. If we just protect all viewpoints, I think, the defense of free speech that you see from the right today really ignores the fact that it’s not a free for all. If you just protect speech, and that’s it, then the anti-liberal democratic ideas, those autocratic ideas might win out. And I think that’s not something that a liberal democracy can afford. So, we’ve got to find a way, in my way of seeing it, of both protecting all opinions but also promoting ideas basic to democratic equality and liberty.
Jeff: And what is the role of the press in that, as you see it, of the media?
Corey: Well, the first thing is, it’s essential. And I think the Supreme Court for all its failures over our history, including recent failures, has decided a few really important cases. So, take, for instance, the Pentagon Papers case about whether or not President Nixon had the ability to deny The New York Times to publish this history of the Vietnam War because he just said it was a threat to national security without even showing why. The court in that case just says, ”Look, it’s essential to the idea that people govern.” And I should say, by the way, the Supreme Court explicitly, here and in other places, is drawing from the Meiklejohn idea, that if citizens are going to be able to have free speech to rule in our democracy, they’ve got to have knowledge.
And that’s why it’s so essential that the press is right to publish as it needs to, as it wishes. Even against the president whose will is to quash it, is really one of those places that’s so fundamental and yet, so fragile because that decision could be wiped away, like others that defend press freedom, including the famous case of The New York Times vs. Sullivan. It’s about the right to speak out against public officials without fear that they’re going to sue you into oblivion. And those are cases that I think aren’t written in stone, and there are some justices who would do away with them. And that’s one of the many places where democracy is threatened right now.
Jeff: And one of the things that we’ve perverted is that rather than knowledge representing a part of that free speech, we now have a situation where money represents speech.
Corey: Yes, absolutely. Really, the vulnerabilities of democracy that you began the discussion with discussing justice is that the court sometimes uses the idea of free speech, kind of perverts it into a meaning that winds up being not protective of democracy but at odds with it. So the idea, for instance, that corporations can spend unlimited funds from their own treasuries, that that’s a right to free speech on par with the rights of citizens, I think that really is a distortion of the idea of free speech that we’re talking about.
And generally, if money isn’t regulated in our system, if we don’t carefully, again, protect everyone’s right to say what they wish but start to think about how democracy actually functions, and we don’t have robust protections of it, the thing could collapse. And the court has been more of a hindrance, I think, in that world than a helper.
Jeff: Is there a difference as we think about this — or maybe it’s a distinction without a difference — between political speech and cultural speech?
Corey: It’s a good question. You could imagine somebody taking, because I am so focused on the arguments from liberal democracy, somebody saying, “Okay. That’s enough to protect free speech when it comes to my right to say what I want in a town meeting about a public issue,” but when it comes to art or novels, that’s a whole other realm. And so we’ll allow censorship there, some of the censorship that you’re starting to see, for instance, from cultural warriors on the right pushing for book bans and also, I think, sometimes from the left.
But I think what’s wrong with that is when you start to think about that metaphor, what does it take to participate in the town meeting? Well, it doesn’t just take the sentences that you say to the meeting itself. It takes the kind of mind that’s got imagination, that’s free to think. And that isn’t just something that’s free to think about politics. It’s free to experience the world, to have opinions about that nuance matters, and that’s what literature gives to us.
So I don’t think that we could distinguish between political and cultural speech or art and politics, that we’ve got to really protect the entire gamut of opinion and imagination in order to have the kind of citizenry that can perform the task of citizenship that we expect in the political realm, and that means robust protection of art, certainly.
Jeff: As we look at that in this age where there’s such an instinct for confirmation bias and how you see it playing out in this cultural landscape today.
Corey: What I’ve given you is an ideal theory in how free speech should function and how I think it has functioned at different points in American life, but there are always going to be impediments, and one of them is if you don’t have a clash of ideas, instead you have just people talking to those that they agree with. And Facebook, of course, is one of the worst examples of this, which isolates us into these friend groups and has an algorithm that seems to feed to us what we want to see and what we already believe and to hype that even more. That’s exactly the opposite of the kind of deliberation that I said was fundamental to the Mill and Meiklejohn idea that through a clash of ideas the truth will come out. It denies the ability to have that interaction and isolates us off.
And I don’t know what to say about it except that it isn’t something that we could just ignore or view as the terrain of a private company. It’s something that we should really see as an equivalent of a public health emergency, as a public democracy emergency. And I worry that Facebook, in particular, because it is so powerful in the culture now, arguably one of, with Twitter, the fundamental public square, that we haven’t done that enough. We’ve regarded it as a private, but publicly traded, company that’s largely been let alone. And when they’ve done PR moves, like create their own Supreme Court in an attempt to show public concern, I worry we’ve just let them off the hook.
This is the place where democracy is functioning. We saw the role they played in the 2016 election, and we’ve got to be really more concerned than we are with the way that confirmation bias is, as you put it, is really being promoted by these, I think, dangerous companies.
Jeff: But cancel culture is a subset of that same thing, isn’t it?
Corey: One of the people that I think is the best on those topics is a guy who many of your listeners might also listen to named Yascha Mounk, and we just had a discussion, a little bit of a debate about that question. I think cancel culture, the phrase is a bit vague. Sometimes it’s used to describe things that I think are a shutdown of the clash of ideas, but sometimes not. So think of firing a teacher for having white supremacist views, or there was an incident in New York City where a woman threatened to call the police on somebody for essentially walking his dog. He was allowing the dog off leash in an off-leash area and she threatened him and made it very clear, this was a Black person, that she was going to use his race against him. That person lost her job.
Is that cancel culture? No, I think that these are examples, or the white supremacist teacher who’s fired, those are examples where a strong sanction, even a firing, I think, can be justified on grounds that especially when it comes to government, government, if it’s going to do the intervention and the protection of democracy, promote the idea, for instance, of teaching civil rights. If you have somebody, take an example, a teacher who’s fired for white supremacist views on Facebook, who’s charged with, in the classroom, teaching the history of civil rights, I think those are examples not of cancel culture but of the country defending itself.
But at the same time, I don’t want to minimize the idea that there is a chilling effect that seems to have taken place in this country, which is that people are worried about saying in public what they hold privately and absent these extreme examples, like I was just giving of White supremacy. That is dangerous because it is an example of people limiting that public dialogue, that clash of ideas that we really do need to see.
Jeff: Is there some kind of instinct, either within the framework of democracy or just in human behavior to shut down the arguments of the other side? We’ve seen it historically here early on, even with things like the Alien and Sedition Acts.
Corey: Yes. [chuckles] I think that authoritarianism in some ways might be the more natural form of government and it’s, especially in our system, I think, to be specific about the Alien and Sedition Acts, John Adams tries to shut down the opposition party early in the country’s history, and he has the power to do it because we have such a powerful presidency. The office, in addition to writing about free speech, I have a book called The Oath and the Office; it’s really about the dangers of the presidency and the obligation that if you take on that office, that you’re supposed to have to preserve, protect, and defend the constitution as the oath requires. We also have to be realistic that we’re going to have presidents — and we just had a horrific one from 2016 in Donald Trump — who are going to try to do the opposite of that.
And that’s part of the system. It’s built into the danger of a powerful presidency, 2.5 million people-plus in the executive branch alone compared to just dwarfs by orders of magnitude, the Congress or the Judiciary. So we have to see that as an inherent danger. And that’s why I think it’s so important for the culture that citizens defend their own liberties, that they push back. And maybe that is something that we’re starting to see with the January 6 Commission with the increased interest in civics in, in questions like free speech, but those two topics are not different. The vulnerability of our democracy really is baked into the presidential system itself.
And I’ll give you just a writing statistic if listeners are sort of thinking, “Oh, the presidency is not so dangerous.” Every other presidential system throughout the world, and many, many of them based on the American model in Latin America and Asia, everyone has collapsed except for two, at one point, and those two are Costa Rica and the United States. And they’ve collapsed almost entirely into dictatorships. That’s the danger of a system in which the commander-in-chief power, foreign policy power, the power to spend and allocate money, that’s baked into that system, very dangerous. And you saw that early in the Republic with the Adams administration.
Jeff: How does the issue— because it relates also to, obviously, so many of the policy issues that we’re debating today — but this fundamental issue of privacy as it relates to all of this?
Corey: Well, I think that the idea of privacy is, to my mind, when you read the Constitution as a whole, in the right way, as the court said in its recent abortion decision, there isn’t just one provision that says, “Okay, there’s a right to privacy,”but instead, what you have, I think, opposite to what the court recognized throughout the whole document. That’s what it’s about. It’s about the idea of protecting people in their own conscience. That’s what we’ve been talking about when it comes to free speech but also in the religious beliefs and the religious practice, in their sanctity of the home to be free from invasion of the government.
Throughout the document, you see this idea that Liberty has to be protected from the government. That’s a writ large idea of a distinction between the public and the private and privacy rights, and that, when we talk about vulnerability, certainly, that decision in Dobbs, the abortion decision reversing Roe v. Wade recently, is explicit assault on, I think, that fundamental idea in democracy of the protection of privacy.
Jeff: And in that, in looking at the whole document as something that anddefends those rights of privacy and of liberty, in many ways, what we’re seeing from the court in spite of what it says and what Scalia had said years ago, this is anathema to the whole originalist notion of the document.
Corey: Absolutely. To my mind, as a constitutional law professor, when I watched them claim that they’re being originalist, and then they say things like, “Well, there’s no right to abortion explicitly in the constitution.” Of course, there’s not. That’s not how the framers thought about things. They laid down principles in broad terms, no cruel and unusual punishment, not list of punishments that are okay and not okay but broad principles that we were then supposed to use and apply in our own times.
I don’t believe in the living Constitution, either I don’t think that’s a great metaphor because it’s not that they thought, “Okay, our ideas would change.” It’s that they thought that we would have the ability to take principles of liberal democracy that they had enshrined in the text and apply them to the dilemmas of the moment. And what the version of originalism that you see from justices like Alito is this really kind of sad game of, “Oh, I didn’t find the right words in the text at that time.” And that’s a real insult to the ideas, I think, of the revolution and the founding generation, but also the second founding, which was about equality after the civil war and the protection of the guarantee of “equal protection.” And they have eviscerated those ideas. And without the ideas, I don’t think you have anything in the document. You just have a collection of words.
I’ll say just one more thing about that. Nobody reads that way [chuckles]; when you read a book or work of literature. You don’t just take out a word and try to interpret the word you read. You look for themes. And the theme of the Constitution is the protection of liberal democracy and the protection of privacy rights, free speech rights. They’re all together understood as a coherent whole.
Jeff: And why has it been difficult, seemingly difficult of late, to make that case? Where has the narrative fallen apart?
Corey: Well, I think the truth is that there’s been a very directed, focused effort on the behalf of a small group of lawyers to take over that branch of government that is charged with interpreting the constitution and that we tend to defer to. They have been enormously successful, increasingly conservative Scalia, I think, and Bork, the kind of chief ends who outlined the vision, and then the minions, the secondary figures who have come out and implemented it, including Amy Coney Barrett and Alito and Justice Thomas. Those are the…
I disagree hugely with what Justice Scalia had written and how he thought about things, but he was an intellectual. He outlined that idea. He defended it. These are really just hacks who are coming in and using the ideas laid out by Scalia as best they can to advance a very conservative political agenda. And really it’s the Trump presidency that enabled that by putting Gorsuch and Kavanaugh and Barrett on the court. They’ve been able to take what were rightly regarded as the quirky fringe ideas of a kind of strange law professor type and made them law, and that’s just a fundamentally sad thing for our democracy. And it really was directly a result of those three appointments that Trump was able to achieve.
And Trump really tells you more about the Alito current version of originalism more than the court justices will tell you because… I almost said court gestures. That’s how I feel about many of them. He said, “We’re going to try to get rid of abortion [chuckles] and direct certain policies,” and that’s what they’re doing. And he couldn’t care less about the language of originalists, some of the arguments and they find it, maybe they believe it, but it’s just so thin and anemic. It’s something the constitution has to be rescued from this Supreme Court. They’ve trampled on it so badly.
Jeff: And if it’s not, is there a Rubicon that you see on the horizon that once crossed there isn’t a turning back?
Corey: Well, I’d say it was the Dobbs case. To have literally decades of precedent defending that idea of privacy that you and I were discussing just earlier, and to just get rid of it with, you know, a few sentences about how it’s not written in there. And the decision is so terrible, lack of reason and weak-minded that I just think that, well, this isn’t law anymore, what they’re doing. It’s a political body with barely any serious legal or intellectual credentials implementing the will of the former president. And so to me, that case was the Rubicon right there.
And if you look in Justice Thomas’s concurrence, he makes it clear why it was a crossing of the Rubicon because he says gay marriage and all these other rights that are based on privacy, right of medical decisions, of contraception is another one, the right to use contraception as you wish, long-established even before the right of abortion. All those things should be wiped away is how I read that concurrence. He says maybe, but I think it’s clear what he’s trying to do. And I can’t think of any clearer assault that makes that clear that that branch needs to be restructured, whether that’s through adding justices or however it’s done. They have really, yes, crossed the constitutional Rubicon.
Jeff: Professor Corey Brettschneider, he’s the editor of the Penguin Classics Liberty series and a law professor at Brown University. I thank you so much for spending time with us today, here on the WhoWhatWhy podcast.
Corey: Thank you. Real pleasure. I really enjoyed it.
Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.