Advisory Opinions - Potpourri of Awfulness

Episode Date: February 10, 2020

David and Sarah speak with Nikki Neily, president of Speech First, about bias response teams on college campuses, the history of speech codes, and pick their own Oscar winners. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Moisturizer, now available online or at your local retailer. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we've got a great pod for you today. We've got an outstanding guest that Sarah is going to introduce, and here's the basic outline of the podcast. We're going to start by talking about something you may not have heard of before, but you need to know about. They're called bias response teams in higher education and the litigation effort against them. So I'm not going to talk any more about that right now because that's going to be the subject of our whole first segment. Then we're going to go back in history a little bit and talk about where did speech codes come from and why did anyone think they were okay constitutionally. And then we're going to end with Sarah and David's personal

Oscars, which are in fact and should be the true Oscars, including a My Best Picture awardee that I think you will all agree is exactly correct. So it will definitely not be correct for new pod listeners. And before Sarah introduces our guest, I'd also please ask you guys to subscribe to thedispatch.com. We are now just days away from the paywall descending like an iron curtain across our content. Good analogy, Sarah? That feels dark. Feels like maybe we don't want to compare ourselves to East Germany, but sure. Well, but a paywall is coming. Also ask you to subscribe to this podcast and rate it, please. We actually read the feedback you guys give us and have responded to some really good counsel.

But with all the preliminaries out of the way, Sarah, could you introduce our guest? Absolutely. So once again, we have a friend of the pod, Nikki Neely, and I have known each other for a number of years in a variety of contexts, though now our most recent context, Nikki, is that I stole your tortilla press. Yes. Kept it for months and was sending ransom notes and have sent you a pasta maker, which still benefits me because I plan to come over for the pasta. But that is not why Nikki's here today. So Nikki is the president of Speech First, which we will get into all of the work that Speech First is doing. But I found this as kind of a fun deep tracks on you. Her grandparents, both Japanese American citizens born in California, met in a relocation center during World War II.

And you were a member of the ACLU and handed out Know Your Rights cards to 8,000 sorority members at the University of Illinois. Yeah. So you're like that sorority girl. I'm that person. I used to put up free Mumia posters in the bathrooms of the sorority house. Nobody really knew what to do with me. I love it. And it actually does sort of track your career. I mean, that was a pretty good intro. So tell us a little bit about how Speech First came about, and then we'll jump into some

of the cases. Sure. So I have worked my way through the conservative libertarian advocacy space for the past 15 years, jack of all trades, master of none. So I have been at the Cato Institute, the Independent Women's Forum, initially as a scholar, and then ended up kind of being the fundraiser president of a lot of organizations. And the last group that I worked at was a place called the Franklin Center for Government and Public Integrity. And that was created to fill the void that we see taking place in state and

local media. As smaller papers are dying off, there is just frankly no oversight of a lot of levels of government. So nobody knows what's going on at their city council meeting, at the state legislature. There'll be one AP stringer. And sadly, if that person has one worldview, then it sounds like tax increases are good. And so the Franklin Center was created to kind of fill that void. It ended up being ultimately an unsuccessful project. But one thing that caught my eye as the publisher fundraiser was to look at different traffic reports. And one thing that people always really liked was the higher ed stories. And that was interesting to me. And I'd read the stories. I'd talk to the reporters. And I found it

interesting that they had a lot of trouble in reporting the stories, that universities often hide behind FERPA, the Federal Education Privacy Act, largely because a lot of the things that reporters want to write about in higher ed were deeply embarrassing to the schools. FERPA, of course, being originally created to protect disclosure of Social Security numbers. And so the fact that this had kind of metastasized, there was part of me that thought, well, is this just kind of like a lot of kind of campus reform sound and fury? Or is there a real problem going on in college and the more i dug into it the more i thought yeah there is actually there's a huge problem that not a lot of the country hasn't picked up on and this is around like the mizzou remember that professor shutting down the reporters trying to cover the protests right saying they need privacy for their protests yeah um and so i get the calls from my alma mater like i'm sure everybody does

you know will you give us a few hundred bucks and And I always tell them no. And you're like, I'll do you one better. I'll write stories about how you could do better. Partially no, because I work at nonprofits. But also I used to just tell them, and this is always, you know, it's probably some sophomore making $10 an hour as a work study. No, I have a problem with how you treat civil liberties on campus. And I get, okay, thanks. And then they hang up. And, you know, there is, there's something that's tremendously disempowering about that. I don't give enough money to make the school care. And even, I mean, frankly, you look at some of the schools where trustees have weighed in with their concerns, like Wallace Hall did at the University of Texas. That is somebody with a lot of power and the schools

still don't care. And so schools aren't changing their policies. What can you do about it? Because I have, somewhat selfishly, I have little children. I have a five-year-old and a six-year-old. I don't want to send my kids to a lot of these schools with the policies in the books. So what do you do? Membership Association might work in this context because as far as suing a school for affirmative action, nobody really wants to be the, I'm the Asian kid who didn't get into Harvard. Here's my name all over the lawsuit. And I thought in the campus context, you could also do that as well. And so we talked, it seemed like there was a there there, and that's how Speech First was born. That's pretty cool. So your specialty is you're taking on, or one of your specialties is you're taking on this thing called a bias response team. And this is different. Just to back up a little bit. This is different from the speech code in some the classic speech code in some interesting ways.

So this classic speech code, which is what I litigated. Oh, goodness. which is what I litigated, oh goodness, for almost two decades. What litigated against for almost two decades was a policy on the books that by the explicit terms of the policy prohibited speech that the First Amendment protected. So a classic example of a speech code that I sued against was, and I kid you not, these are the actual words of the speech code, was the words were, acts of intolerance will not be tolerated. Penn State. Yes. Yes. You know, you know. David French is the OG. You know, this is fantastic. But so we would take on these speech codes and we'd win. Every time a speech code got challenged on the merits, the speech code would fall. Sometimes you'd lose an aspect of a case on standing.

But when you got to merits, you would win. And so universities adapted. The battle for civil liberties is always punch and counterpunch, punch and counterpunch. So the universities got creative. They began to lose their speech codes, but they created bias response teams. And why don't you tell people what a bias response team is and why it's a problem? Sure. I think, yeah, you're right. It's really insidious. And even the phrasing of it, I mean, who is against bias? How can you be opposed to bias? Bias is bad. So yeah, universities

are not as stupid as just flat out banning speech anymore. So instead, what they do is this kind of wink, wink, nod, nod. They're very broad policies in the books where students are encouraged to report on each other. If it sounds creepy, it's because it totally is creepy. It's straight out of the lives of others. But universities will have a portal on their website where it'll be on umich.edu. It'll be on uiuc.edu. And there will be, students will be encouraged, the school will advertise it to report on speech that they deem biased, bigoted, hateful, offensive, et cetera. And the way that there are portals where you can fill in the name of the offender, they'll use the term offender. So you've already kind of framed the issue.

You ask students to assume what the motivation of the other person is, and in many cases, you can do so anonymously. So certainly, you can do it if something has really happened, but also you can see the system easily weaponized against somebody who you dislike. And so what happens if I were to file a report against you, David French, on a public university campus? Well, it would go to the bias response team, and these teams on universities are often made up of officials, including campus police, provosts, deans of students. So a student who has a report made against them will receive an email from somebody pretty

high up. They'll say, a report's been made against you. Please come in and meet with us. No disclosure of what your rights are. No identity of what the complaint was, who made the accusation, and obviously no due process, no way to ask somebody about it. And so students end up getting reported more often than not for constitutionally protected speech. And very often when you look at the logs of what the speech is, it's religious speech, it's political speech. And so what this

does is it has a chilling effect, because even if you are exonerated, well, yes, you are allowed to say that nasty thing about somebody else. Even we were joking around. We were talking about a South Park episode. What it does is it scares somebody. It's punishment by process because it's a huge it's terrifying, but it's also a huge hassle to go in and have to speak to it to a bunch of administration officials. Explain yourself. And when you go back to your turning point chapter, to your college Republican chapter, you say, a report was made against me because I said I believe in reasonable controls and immigration. It makes everybody else think, oh, that sounds like a hassle. I don't want to get in trouble. That's a distraction from my studies.

You know what? I'm just not going to talk about that stuff in the future. If they get exonerated, what can they do? Assume for a second this is constitutionally protected speech because most of it would be uh what is the power of the school can they expel people um what they'll it depends on what the school is um a lot of this is a public school yeah so but but again it varies between schools the schools um the ones that we've litigated to date have said well this is just as a voluntary procedure this is just educational um but in many cases, they will have a revision. If we feel that a violation of the student code has taken place, we'll refer you elsewhere for punishment.

And so it's very unclear. It's very murky as to what happens. And then student codes, as David knows, are often, you know, well, what is a violation of the student code? Is it considered harassment? Is it considered discrimination? And that might subject you to punishment. Sometimes there's restorative justice. Sometimes there's education.

And so it starts to feel a little bit more punitive, but it does in some cases lead up to expulsion or suspension. And so, for instance, to take then the extreme example, one student calls another student a racial slur with all the intent of it. There's no real excuse for this. So things that I think we would all agree we don't want to have happening a lot on college campuses. calls another student a racial slur with all the intent of it, there's no real excuse for this. So things that I think we would all agree we don't want to have happening a lot on college campuses. The bias response team would still be the first step in that. Yes. And then, you know, I think, yes, we don't want those things taking place on campus. But, you know, take a step back and think about what kind of messages this is sending to students, 18, 19, 20 year olds. If I were to see you do that to David on the street, it's kind of incumbent on me as a good citizen to go up to you and say, Sarah, don't talk to him that way.

Yes, Sarah. I'm pretty mean to David out there, you guys. Part of the college experience is learning how to, aside from curriculum, which frankly I don't remember anything I learned curriculum-wise in school, but knowing how to deal with people interpersonally. So it's incumbent on me as a citizen, as a human, to kind of intervene and to try to mediate that. But if what instead I'm being taught is go and tell the government, go and tell the grownups, I'm not able to learn from this experience at all. And if I'm scared that somebody who I don't know, or maybe even a friend who might get mad at me, I might have a falling out with somebody, will go and report me, it makes me – I think it undermines a sense of community on campus. And so there's the punitive aspect, but I think there's also kind of the interpersonal aspect that this challenges. And one thing I think that needs to be really clear about this, it's one thing to say you can report on violations of lawful policies.

So for example, a properly drawn anti-harassment policy that complies with constitutional law is a valid and indeed a necessary part of any student code of conduct. I mean, there's going to be federal legal requirements to have a valid anti-harassment policy. And to say, okay, well, we're going to allow people to report on allegations of violations of the law is one thing. But what the bias response team does is it creates this wide funnel. So it says, and again, this varies from school to school, but essentially what we're wanting you to do is report on speech you find offensive on the basis of any number of different categories, which is extremely wide. And we had at the dispatch a report from, I believe,

is Christian Snyder from the University of Wisconsin. And he was providing examples of some of the bias response reporting, including one of the bias response or one of the bias reports was of a picture from the University of Wisconsin football game where all the students are pointing. And the allegation was that that looked kind of fascist. and the allegation was that that looked kind of fascist. The students were in the middle of a cheer in a football game and a picture caught them in the middle of a cheer and it was deemed to look kind of fascist by the complainer. And so what you end up having is this really wide opening to the funnel and then that funnels down to some tiny few of these allegations actually end up maybe violating the code of conduct. But I want to talk a bit about the process as the punishment point, because I'm going to put on my administrator hat for a second. wrong with bringing a student in, maybe from a privileged background, who has no understanding of the effects that his words have on marginalized communities. We're not going to censor him. We're

not going to punish him. We're not going to penalize any grade that he has. We're not going to report him to his teachers. We're just going to sit him down and explain to him the fact that his words have an effect on people that he may not desire and that this is part of the education process. Why do you have a problem with that? I mean, it's really, frankly, not up to a school or student administrator, you know, a state employee to determine what is and isn't acceptable, right? It's not often Justice Thomas who's determining what is and isn't acceptable. It's somebody from the diversity and inclusion bureaucracy saying, well, like, that's hateful and this isn't hateful. And again, it ends up being,

you know, topics that are of major concern at a national level, transgender issues, marriage issues, political issues, support for the president, et cetera. Those are things that are considered unacceptable, that are considered hateful. And when you look at, I mean, the kinds of speech that are reported and the incidents that are reported and then what students call for, they want their colleagues to be punished. They report them with a view to having somebody, you know, I want this person kicked out of campus. Those are often the comments that you see reported in these logs. And so there is no – there's not even an eye to what is intent in many of these instances. It's this happened, this had the effect on me. It was perceived as such.

And so that kind of, you know, putting the bird of proof in the eye of the, you know, on the, I'm mixing up my metaphors. But the fact that it's how something is perceived as opposed to how it was intended, I think is also, it really the script and it makes people you know, it is intended to chill speeds. It is intended to scare people and shut them up. There's something about this, David, that kind of reminds me of conversations you and I have had about the culture of Twitter in general. That conversations that you really should be having one on one with a human being that would have a totally different tone, one of trying to understand the other person, usually, instead on Twitter can take on this very just anonymous, vitriolic, I will assume the worst, and I will attack you in the most vicious way I can think of. And it's why sort of separating the conversation side, the human side into what amounts to not to compare it to Iowa, but like an app, you know, an anonymous reporting, it does sound like some

of the problems that we see on Twitter culture. Well, that and I would say this is all being filtered through an ideological against an ideological. It's all coming through an ideological, against an ideological, it's all coming through an ideological filter that is not exactly, these committees are not made up of six Republicans and six Democrats, for example. And so you're not going to have a situation where a pro-choice student is being sat down to be explained to them why their speech is triggering to pro-life students. That's not typically what's happening. So what you're having is this incredibly ideologically skewed panel, often composed of people who choose to be there to advance a particular ideology of expression on campus, then sternly

sitting down students, and this goes to the process as the punishment point, with the intention of chilling speech. So these are government actors acting with the intention of chilling constitutionally protected speech through an opaque process that frankly, a lot of these students would have to be a lawyer to fully understand. And they often feel like they don't really have any choice but to participate. And so the entire thing works out to be rather terrifying for the students and has a really profound chilling effect. And again, this is all being conducted through state machinery and justified by saying, well, but at the end of the process, there isn't really any punishment if they're still complying with the Constitution. And courts are starting to see through this. I mean,

could you talk a bit about the Sixth Circuit decision in Michigan, in the Michigan case? Sure. So the first case we litigated was against University of Michigan. We sued them in May 2018. We challenged both their overbroad speech code and their bias response team. Michigan had a very active bias response team. They had an ongoing log that they kept updated on their website. As of the date we sued them, I think they had 150 incidents for that year. And would that log include a student's name? No. So it's supposed to be anonymized to the extent where you can't figure out who the person is.

But often on many of these campuses, they know exactly who it is. They know who the club is. They know what the event is. They know who the speaker is. But often on many of these campuses, they know exactly who it is. They know who the club is. They know what the event is. They know who the speaker is, etc. And so, you know, Michigan is famous because one of the incidents that was on their log a couple years ago was somebody built a phallic-shaped snow sculpture. And so that was considered a bias and hate incident on campus. That was considered a Friday night at Northwestern. There's a lot of snow and not a lot to do. Was it an 18-year-old who was a little bit immature, or was it just a really bad snowman?

Who knows? It was the former every time. So we sued Michigan over their policy. The school changed. The Department of Justice filed a statement of interest. Suddenly and coincidentally, the school changed many of their policies. They said it had nothing to do with DOJ, had nothing to do with our lawsuit. It was under consideration anyway. And so what they tried to do was they tried to moot

the case. Because the policies that we challenged were no longer in the books, they said the case, you know, throw the case out. The district court judge agreed with it and also said that we didn't have standing because our students had not gone through the process of a bias response hearing that we had disclosed to them. We appealed that to the Sixth Circuit, saying, well, our students don't need to be punished through the process. The mere fact that they have been discouraged from expressing certain viewpoints because they know that certain viewpoints have been called in the past is enough to, we believe, give us standing.

And then also, no, just because you change the policies doesn't mean that the problem has gone away. And I think Michigan in particular was a good example of this, of this mootness argument, because one of the original bad actors in the campus free speech race was University of Michigan. Indeed it was. Yes. Oh, yeah. I remember well.

Dovey, Michigan. And so here we are 30 years later suing Michigan over speech codes that they have in the books. Why should we defer to them? Why should we give them a pass yet again? Sort of definition of capable of repetition evading review. Right. And so we took it to the Sixth Circuit and the Sixth Circuit said,

actually, yeah, you did this. The method and the timing of this was very disingenuous and that the policies, the bias response team did in fact have the purpose and the effect of chilling student speech. And so we won on both the mootness and the standing arguments, which was surprising but awesome. So now you're in Iowa.

Yes. We have two other active lawsuits going. We sued the University of Texas in December 2018, and we have a Seventh Circuit argument on March 2nd. And then we sued the University of Illinois, my alma mater, on last May, May 2019. And we have our Seventh Circuit argument four days before that on September or February 27th. Happy birthday, Nikki.

So, yeah, it's busy. And then we sued the Iowa State University just in January, January 2nd. So we are briefing right now in the Southern District of Iowa. Man, Iowa's had a rough go. The app goes down. Nikki's suing them. Unconstitutionality, incompetence, it's just, it's a potpourri of awfulness. Real quick for some of our listeners who are not attorneys and or would just like a little

more spoon feeding, why public schools? Do you look at private schools? Sure. Public schools are state actors. And so they have to uphold the First Amendment, period, full stop, the end. Private schools are not. So they, even though, yes, there is an argument that some schools receive some federal funding, they should be, they have to uphold the First Amendment, et cetera, et cetera. For the most part, private schools are able to enjoy freedom of association. So, for example, I went to grad school at Pepperdine. Pepperdine makes no bones about placing the tenets of the religious faith above all else. And so you go into Pepperdine, there's a 200-foot glowing cross. You are very aware that that is a priority

for them. And so when you don't have any rights, you shouldn't be surprised. For private schools, some private schools, where they get into problems is that they promise free speech, they say they uphold free expression, and that they don't in practice. So suing over that in those cases is a little bit trickier. In some instances, like in California, there's a state law that says if you're not a religious school, you have to uphold the First Amendment. It's called the Leonard Law in California. In other cases, you might be able to challenge the school as a contractual matter. We have not gotten into that just because it's a lot messier, and I don't necessarily want to be in state court. But that's, you know, that remains to be seen, how to change private school policies. But public schools, it's much more straightforward,

the First Amendment at the end. You know, one of the things, as I'm hearing you talking, I'm just flashing back to so many past cases because the chilling effect argument and the standing argument is really fascinating to me. And the Sixth Circuit saw through this. But essentially what universities have done for years, years is to say to your student who's proactively challenging a speech code, they say, well, you haven't been punished. You haven't been through the process yet. So you don't have standing to challenge this. And I think, you know, the response you guys made, the response we made for a long time was

your chilling effect is working. The thing that you're trying to do, which is suppress people from speaking is working and you cannot rely on the actual infliction of the harm to keep me out of court. And what I found interesting, though, is when I would know when I knew I was in front of a rough panel, they were never defending the merits of the speech code itself. Never. Because the underlying First Amendment doctrine is very clear. It was always backing up to standing, always backing up to standing. And that was an or muteness, standing or muteness. And those were always the I probably for every. Here I am doing my grizzled 51 year old, old free speech lawyer back in my day when I'd bring my typewriter into court. No. And that we were all, we probably

argued standing in mootness twice as much as we argued the First Amendment. Now that's getting way in the weeds. Yeah. You know, one interesting thing about the standing argument is the fact that we're a membership association has allowed us to sidestep some of the standing issues that have plagued free speech litigation to date. And that if it's an individual suing their school, like if you're Sarah, if you're a senior at Northwestern, right, University of Illinois, and you're about to graduate, all the school has to do is to kind of drag their feet and wait until you graduate, right? Once you've once you're out, you know, you've transferred, you've been kicked out, etc. then the harm has gone away. So even if you have a valid complaint, all they need

to do is wait you out. As an association, as long as we always have a student member who has, who is enrolled, then our harm is ongoing. And so we've been able, at least we can draw out the time horizon a little bit more as we fight some of these other battles. Yeah, that's helpful. And we've been talking about bias response teams. There are plenty of cases that are not pure bias response team issues. The student who was arrested for handing out copies of the Constitution in Spanish, oddly, outside of the speech zone. Yes. The permitting issues on college campuses that you have to apply for a permit X number of days in advance to do something in the speech zone that is usually about the size of two dorm rooms put together on a giant campus.

So there's plenty of other areas where schools try to at least constrict speech on campus that they could find offensive. But what's interesting about those biased response teams is that it's totally pervasive to your college experience. It can be in the classroom. It can be in the dorm. It can be with your best friend. It can be someone overhearing you talking to your best friend, which is sort of a, you know, that's a pretty scary concept. You can't have private conversations. I was listening to a podcast with the head of the University of Illinois's

response team, and she said, well, you could be on spring break in Alabama, and if you break a window, then that falls under our purview. University of Michigan said anything that happens in the city of Ann Arbor, I mean, these universities have allotted themselves greater powers than many police forces in some instances, which is kind of crazy. And then, yeah, that we can rely on third-hand evidence that it was, well, somebody told me about something that happened, and so I'm going to report it. And so hard to have the conversations that, at least for me, were very instructive in college of, for me, the way that I learn and the way I sort of decide what I think is I often take a side in a debate that maybe I don't even necessarily believe in and see how far I can defend it to the point that then I'm like, oh, actually, I don't like where this ends up. That's not actually my belief. But to not be able to have those conversations for fear that

just by playing that devil's advocate role or having it out loud with another smart kid, which is sort of the purpose for me of going to college in the first place, and certainly in law school where, I know this will shock all of you, but I often raise my hand to ask some question that was not particularly appropriate. I wanted to know the difference between rape and extortion when you were talking about withholding a promotion or a job. That was not popular in my crim law class, as you can imagine. I wasn't asking because I thought that it was okay. I was asking because I didn't know the answer and I wanted someone to help me work through that. I didn't know the answer and I wanted someone to help me work through that. Well, you know, one thing that I think is all of this is, I think, leading towards another question, which is how can students be the right kind of activist on campus?

And I want to touch on something that is, I think, plaguing the conservative movement quite a bit of late. I've seen a move away from when I was president of FIRE, when I was running ADF, Center for Academic Freedom, student activism on campus, particularly conservative student activism on campus, was designed to foster and facilitate a marketplace of ideas. So exactly what Sarah's talking about. Let's create a place where the exchange of ideas can flourish, where you can ask questions like Sarah's asking, where you can play devil's advocate as part of a learning process. And that was a pretty standard, conventional, conservative student activism on campus. And what it had the benefit of doing was if the conservative student activism succeeded, everyone was more free. It has now begun to change. And I've begun to notice that a lot of conservative students on campus are in hunter killer mode against radical faculty because they feel like what they can then

do is how I can really make a name for myself is I can call out, oh, here's an adjunct professor in gender studies who said something insane on Twitter. And I'm going to write about that. That's going to get on Breitbart. That's going to catch the attention of someone at Fox. And all of a sudden I have seen conservative students becoming part of cancel culture by. For sure. By finding like performance. Exactly. By finding the radical professor here and there. And it's incredibly destructive. And so here's my constructive assignment for our student journalist listeners. assignment for our student journalist listeners. I know you're out there. Here's a great idea. FOIA, use a freedom of your state, Freedom of Information Act. Virtually every state has one.

FOIA, your bias response team's reports and the information at your university about the bias response team. That way, number one, it's transparency in an opaque process. And number two, you're exposing a process that has been used for unconstitutional ends and leave the random radical professors alone. Just my little speechifying. And I think that, you know, back in my day, the popular thing was the affirmative action bake sale that the college Republicans would do. And I think that was like the prototype of this. It was not meant to foster a conversation on campus. It was meant to shock and to provoke. To trigger the libs. Yes. Yeah. It was the original own the libs action.

And I never thought that it was productive. It was offensive. I don't mean offensive in a biased response team way, but it was meant to be offensive. It was meant to offend that, and for those of you who were not children of the late 90s, an affirmative action bake sale was where you would sell brownies or cookies at your table, and people of different races would be charged different amounts for the same brownie or cookie which was supposed to show the radical unfairness of affirmative action which uh a is not what affirmative action is b again i just there's something so like obviously offensive

about that uh that you know and and again it was the point that like if Nikki and I get charged different amounts for the brownie because she's of Japanese American descent and I am of Irish Jewish American descent that, you know, somehow we've proved a greater point and everyone is better off. And David, to your point, like, no, you want to have a conversation about the merits and demerits of racial quotas in admissions or in hiring processes. Let's have that debate, but let's have it in an intelligent way with facts and not using brownies and what we think Nikki's race is. Right. Right. You know, another thing to the education point, we also want to be an education empowering people to stand up for themselves. And this goes back to almost full circle to the consequence of the bias response team mentality is that it teaches

people systematically that when they're hurt or when they're upset or when they're offended, they must and should appeal to an authority rather than assert to the person who hurt them or to the person who offended them their position and to state why they felt hurt or offended. their position and to state why they felt hurt or offended. And that's where the real education takes place because it can go both ways at that point. The person who's offended can perhaps learn that they misinterpreted the words or that the words were intended in a way that were very different from when they came out. Or maybe the person who's offended is under their own – has their own blind spots and doesn't appreciate and understand the facts. And maybe perhaps the person who's offended is offended for a reason. But that takes place in dialogue by constantly saying, I want to appeal to an authority is creating this environment that we see.

authority is creating this environment that we see. I've heard this said so many times, going all the way back to the early 90s when I was beginning the working on these issues in court, was, well, these kids, when they get out of college, are going to encounter the real world and it's going to be a wake up call. No, no, no, no, no. These kids, when they got out of college, changed the real world so that you now have corporations and companies in a cultural sort of environment that teaches people comprehensively at every level of society that when I'm hurt or when I'm offended, an authority has to respond. And that's, I think, the long-term cultural effect of this. Again, I'm monologuing. I'm sorry. That's, I think, the long-term cultural effect of this.

Again, I'm monologuing. I'm sorry. Well, and just the infantilization of the millennial and Gen Z generations. And it's not just this. It's not just speech. It is, you know, the stereotype of them living in their parents' basement isn't quite accurate. But they are at the lowest homeownership, highest student debt. Like, they're not becoming full adults. They're getting married later. They're having children later. And so part of that is sort of this constant bubble.

Well, if you don't have a mortgage and you don't have children and you're really just worried about yourself and you don't have a 401k, then yes, of course, you're still appealing to authority because we're keeping you in this high school womb-like situation. Yeah, I mean, extended adolescence is a real thing. I mean, it is a real thing. Everything from, man, we're really far afield now, aren't we? I know. We need to go into the history of bias response teams.

Nikki, do you want to stay for a bit? Sure. All right, David, launch into the history of how we got biased response teams. Well, speech codes, biased response teams. Where would this come from? And so this is a lesson for you aspiring writers out there. You might sit there and think that, do essays ever make a difference? Does my writing ever matter?

Well, yes, it does. It can. And for good and for ill. And I want to go all the way back to an essay by a guy named Herbert Marcuse, who was writing at Brandeis. And he wrote an essay about what he called repressive tolerance. This is all the way back in the 1960s. So you were like in college? Yeah. Hey, I was born in 69. So I mean, it was summer of 69. The age of Aquarius. I mean, is that not like written all over me, the age of Aquarius?

at the age of Aquarius. I mean, is that not like written all over me, the age of Aquarius? Totally. So he writes an essay. He calls for something called, he condemns what he calls repressive tolerance. And he calls for this thing called liberating tolerance. And this is when there's a lot of social upheaval in the 60s. Campuses are growing more diverse. There's a lot of foment against the Vietnam War. And you would say, you would ask, what is repressive tolerance and what is liberating tolerance? So his view was this. He said that the tolerance that you think of as tolerance, which is all each one of the three of us are going to respectfully listen to each other's views. We're all going to be allowed to speak. And we're all going to, you know, the classic marketplace of ideas, that's repressive. Why is that repressive? Because majority views are going to get majority

airtime. So if you have 10 people in a room and seven of them agree on something and you're all equally able to speak, well, then you're just going to keep perpetuating the majority. So what we actually need is what he called liberating tolerance, which is what you and I would typically call intolerance. So what that means is to correct the balance of power, we're going to silence the seven and elevate the three. So majoritarian viewpoints, right-wing viewpoints that he viewed as majoritarian needed to be suppressed so that we could actually create real social change. And he called that liberating tolerance. And it was unbelievably successful as an intellectual idea. And it's interesting, if you go back and you read that original essay, he was despairing. He was saying,

I have this great revolutionary idea, but we'll never see the light of day because those darn majoritarians and the dominant people control every important institution in American life. And so I have this golden idea. It will never work, however, because of fellow traveler revolutionaries in the academy who began to put into place his idea of liberating tolerance. And that goes straight back to what, you know, the Penn State policy, acts of intolerance will not be tolerated. It's this notion of that's the liberating tolerance is being intolerant of these majoritarian intolerant ideas. And that it's an essay that spawned not just a mindset, but a sea change in American policymaking on college campuses. But, David, I think that you're choosing to start in the 60s.

I want to go back to your even earlier childhood before that. When the academy was largely controlled by conservatives, and I don't even mean politically conservative. of the professor that we think of back in a separate piece or, you know, pre-war era. They were intolerant in their own way of the radicalism and the long hair and the, you know, hippie culture. And so it's a little like the judicial confirmation wars. If you pick where you start, then you get to say, here's who started it. But almost each side will always have something that predated that. And so I think that to some extent, that essay was a response to decades of we don't tolerate, you know, liberal ideas. Your communism and pro-communism ideas, let's call them, which frankly was also ridiculous.

There should have been conversations on campus where people could represent the communist idea instead of being reported for that. Well, that's the free speech movement at Berkeley, right? So you have a free speech movement countering the efforts of a conservative, and again, not conservative in the same sense that we use those words now, because I actually don't know what conservative means anymore, but a conservative opposition to the campus foment of the 60s, moving even really before the Vietnam War into civil rights, that there was absolutely an effort to squelch the free speech rights of dissenting speakers. When I'm talking about, I'm not talking about the origin of censorship

in the American higher education world. We can go way back. I mean, we're talking about punch and counterpunch. I mean, never forget that the generation that ratified the First Amendment also passed the Alien and Sedition Acts. So we can punch and counterpunch on free speech has been going on since the republic was founded. What I'm talking about is the genesis of a specific intellectual movement, which was the speech code itself, intellectual movement, which was the speech code itself, which were all drafted with very particular common elements. And what's interesting, we look back on that now after all these litigation wins and we say, what were those guys thinking legally? Why did they think they could get away with this? And we forget that the First Amendment case law has been sort of a underdevelopment for a while.

And there was a time before Tinker, the Tinker case, Tinker v. Des Moines School District, the thought was students, at least secondary school students, didn't have First Amendment rights. Right. In loco parentis, the school steps in as the parent. If the parent can tell the kid they can't wear a black armband to protest the Vietnam War, so could the school. Exactly. Wrong. And then there was a strong in loco parentis tradition at college campuses. And people forget that. How much in loco parentis applied on college campuses? A speech code case I litigated, oh gosh, I think we filed it a dozen, 13 years ago against Temple University. In that case, we ended up litigating it around the Tinker v. Des Moines standard. And what Tinker said is that speech was protected as long as it was not a substantial disruption to the educational environment.

That was the key phrase, substantial disruption. And so how universities began to defend these speech codes is they would say, well, wait a minute, all we're trying to do is prevent a substantial disruption caused by bigoted speech. And so we had to fight a whole wave of litigation over that. And so I think what's, you know, we often look back at these things and we wonder, what were those guys thinking? And the reality was they were thinking sort of two things at once. One, that there are marginalized voices that are not heard because they are intimidated. because we're educators and we can shape the educational environment, and because bigoted and hateful speech is disruptive to that educational environment, we have more freedom to create a specific kind of environment and atmosphere than, say, a city does when it's regulating a city park. And that was directly counter to this marketplace of ideas concept of education. And so it really did come down to this sort of foundational battle over what is education.

Nikki, I feel like David should come talk to your students, your membership students, about the history of how they have arrived and whose shoulders they're standing on. David has laid all this groundwork. I mean, it's an honor to be here. They're standing on David's shoulders. Oh, it's they're standing on David's shoulder. Oh, yeah. Mine's specifically David's shoulder. Yeah, sure. Right. No. You know, it is interesting that there's there is a number of people certainly predating me. Certainly that we are part of a speech, a free speech movement on college campuses. movement on college campuses. And you said something really interesting earlier. You're talking about these local news stories and how college campus stories seem to get more attention, right? Which in my experience is true. In my own writing, if I wrote about college campuses, especially in the last, especially since the Missouri meltdown, it gets attention. People care.

I remember when the opposite was the case. Like it was the opposite. I would go around and I'd speak to groups trying to raise money for fire. And I would have to convince them why this mattered. I would have to say, no, this isn't just sort of this weird quirk that, you know, again, like we're talking about how you shed it as soon as you leave the ivy colored covered walls, you become a normal person suddenly. We had to really try to convince people why this stuff mattered. And you could at some at some point you could get the free speech lawyers litigating on college campuses. We could meet in a freaking phone booth. I would argue that some of that is that the success that the conservative

movement had in the judiciary and what a difference and revolution that became. Yeah. Shined a spotlight on the academy and on Hollywood as two other areas where conservatives had previously written off. It's like, well, if if we conservatives can do it in the judiciary and look at the difference it made, time to go move into the academy, time to move into Hollywood with maybe more mixed success. And even I mean, I don't think that there has been outright success in the courts, because I think a lot of it is whack-a-mole because these programs change, right? They don't have the speech codes on the books now. They have the bias response teams. They're talking about

we want to you know, we want students to feel safe. We want to prevent a hostile environment. And so the language of some of this has changed to try and adapt to. So it's like a, I don't know, AI. It's like thinking robots or something. And you, Nikki, are here to whack the moles. Well, to quote a few good men, we want you on that wall. We need you on that wall. And it's true. I mean, the battle for civil liberties, it's a seesaw battle. It never fully ends because the human impulse when you gain power is to trust in your own virtue and to exercise your own authority to preserve your own authority. And it's a human thing. And so, you know, and it's particularly pernicious on college campuses. And yeah, I love your work, what you're doing. I love it. I love the assault on the bias response team culture, which is,

you raise a great comparison, The Lives of Others, which is a movie about East Germany during the Cold War. And if you've not seen it, I'm going to give you an uncharacteristic movie recommendation that does not include warp drive, lightsabers, or superheroes, and say you've got to see the lives of others to see what an informant culture looks like. Now, obviously, communist East Germany is not as, in orders of magnitude, more dramatic, but...

No caveats needed, David, but this is a good segue into our Oscar segment. Yes, yes. I'm going to make Nikki stay here. Okay, I want to have the drum roll. I am the conductor of the orchestra here. And David, thank you for presenting the award for best picture for 2020. 2019.

The Academy. Well, okay. Yeah, it was last year. But it's the 2020 Oscar. Oh, right. All right. Okay. Yes, you're correct.

For a 2019 movie. Okay. What is it, David? Well, I think there's only one movie that fits the bill. And of course, you can say it with me, Avengers Endgame. I knew you were going to say Avengers Endgame. Oh my God, I actually did know that that's what this was going to be. Have you seen this, Nikki?

Yes, I have. Of course she has. I had this huge amount of homework because I had to work my way through a number of the seminal movies before I could actually watch Avengers Endgame. And? I thought it was okay. It was a happy ending. Okay. Rousing.

It was more than okay. It was a magnificent cinematic achievement. So let me make my case for this. Short. Brief briefly, David. Very briefly. As you know, I'm a DC guy. I'm not a Marvel guy. I don't think, I think Avengers Endgame is the only Marvel movie in the top five of superhero movies.

But what it did was it completed a 20 plus movie story arc expertly with real emotional energy, which many Marvel movies lack, and some freaking incredible action scenes and the iconic image. I mean, like what else could you want other than emotional resonance, incredible action, completion of a great story arc, great acting from great actors, and then culminating in the moment where Captain America, with a battered uniform and a damaged shield, for one brief moment stands completely alone in front of Thanos' army, unbowed, undeterred. If that doesn't say hashtag America. USA! in front of Thanos' army, unbowed, undeterred. If that doesn't say hashtag America. USA.

Oh, my God. Okay. Name a better movie moment. Why David and I host this podcast together. So when David said, hey, let's do our favorite movies, I thought to myself, oh, man, this is awesome because I've watched a lot of great things this year. He went Avengers. So I made a couple different categories here.

One is documentary versus the fictionalized documentary where there are actors playing the real people in a series. Like a mighty wind. But it's meant to be just like a mighty wind. Oh, my God. Best in show. You're winning the movie callback award today. So for pure documentary, O.J. Made in America is my favorite of all time time that is the 2016 nine hour 30 for 30 that is this unbeatable and i'm not sure it'll ever be beaten but this year killer inside the aaron hernandez

story even though it's remarkably similar to the oj story in some ways and not quite as good because it doesn't really hit that cultural resonance um about race in the 90s and before and and all that but uh but killer inside really made me rethink the nfl it made me uh you know someone who had sort of only vaguely followed aaron hernandez i really enjoyed it but this leads up to my favorite category which is the fictionalized documentary there were three nominees this year guys uh the spy which was the true story of a... Oh, the Israeli. The Israeli guy who was sent into Syria. A Very English Scandal, which is a story of a member of the British...

Profumo. Parliament, yes. And When They See Us, the story of the Central Park Five. All three are fabulous. Highly recommend them. However, the winner of this year's Sarah Oscar is the spy. It was just incredibly well done storytelling in a story that I just had never heard of. Fascinating. Although When They See Us was quite good and comes in second.

Okay. So very different things that we do to relax. Yeah. Well, you know, I would say, I'm going to put in a plug for, if I had Oscars, I would break them down to two categories, best movie and best film. So best movie. Oh, I think that's fair. Best movie is the things that people actually see. And best film is like what sarah watches and so and so i would say my award for best film was the movie was the film peanut butter falcon which oh yeah we've been

meeting which my wife dragged me to see it because it was an indie i don't see indies you know like very low they tend to have very low warp drive special effects budgets. So but she dragged me to see it. And it stars Shia LaBeouf and Dakota Fanning and a new actor who has Down syndrome. And it was so good. And and you you might say, OK, well, you've just described sort of like the ABC movie of the week from back in my childhood, The Uplift. But it was it wasn't a story about disability. It was a story about family. And it was a story about how families form and about how boys become men. And it was one of the most touching things that I have ever seen.

I'm not going to say Captain America standing alone in front of Thanos touching. Which one? Yeah, I mean, Dakota Johnson, not Dakota Fanning, to do some real-time fact-checking. Sorry, yes. Dakota Johnson, you're right. But, thank you, Caleb, our wonderful producer.

But I'm going to go watch that then. Okay, done. Yeah, it's on Netflix. David, it's been a treat as always. Yes, and thank you so much, Nikki, for being with us and joining us. You have been fantastic in explaining a really complicated and interesting legal challenge, and thanks for your work.

And like I said, thanks for being on that wall. And thanks for the tortilla press. Yeah, you're welcome. Thank you. Also, my favorite movie I've seen recently, Hust. Yeah, you're welcome. Thank you. Also, my favorite movie I've seen recently, Hustlers. Female empowerment. Entrepreneurship. Love it. Love it. Sort of its own superhero movie, David. I'm going to have to register a dissenting vote on that one, but. Did you watch it? I tend not to see movies about strippers. You can't dissent if you haven't seen it, David.

Okay. Thank you for having me. Thank you everyone for listening. This has been another interesting episode, or at least interesting ending of Advisory Opinions. Please rate us on iTunes or wherever you're getting your podcast and subscribe. David, anything to add? Nope. You summed it all up very well. Thank you so much for listening. And again, the paywall is coming to the dispatch.

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