What is your take on worldview?

Doug Monroe:

thank you, Jonathan, for being here today.

Jonathan Turley:

Thank you, Doug.

Doug Monroe:

It is quite an honor for me to be able to speak to the man that I think is probably the lawyer media person in the country across all networks. And I think I can speak for a lot of people in saying that you have a just really gentle way of taking very tough issues and talking about them authoritatively without irritating the hell out of your audience. And that’s a real skill set. And I know you know you have it, and I see it just in visiting with you this morning. So thank you for coming.

Jonathan Turley:

Thank you, Doug. It’s very kind of you.

Doug Monroe:

And so as you know, I doubt you’ve studied it much, but we try and focus on worldview, which is a metaphysical thing. And so I’m always curious how you think about that word or what you have to say about that way of looking at the world, if any.

Jonathan Turley:

Well, I think that any true intellectual keeps their mind open as to what powers the world around us. I think that many people who have a more rigid, narrow view and the certainty that comes with it are deluding themselves. Every new discovery shows how little we know and how much there is to explore, whether it’s space or the reality around us. And I like to keep my options and thoughts open. And I do think that there’s more to us that meets the eye. I think you have to believe that to have hope in humanity. But I do think that whether you call it the metaphysical or the supernatural or just simply a world beyond us, you have to sort of consider the possibility that what we see is not everything that we are.

Who shaped your worldview? 

Doug Monroe:

When you look back on your worldview as a boy and a young man, who do you think shaped it the most? We’re usually born into one, somewhere around us, and that shapes us and then we grow up and figure out whether we like it or not. So who influenced you early on?

Jonathan Turley:

Well, the greatest influence in my life was my father who was an architect and was one of the students of Mies van der Rohe, who was the person that brought about the designs of glass and steel. The idea of form follows function. My father had an indelible mark on me. He really did view a life as a search for truth, and he also viewed it as an unending search. In his whole life, he was just an absolutely intense reader. He was never satiated. He always wanted to read in a variety of different fields. And he was also my best friend. So he had the greatest impact on me.

And he also sort of left this idea that when we go through life, we are our greatest creation and you have to remain true to yourself. And in some ways, that was also influenced by my mother who was a social worker, President of Jane Addams Hall House in Chicago. My mother is one of the most courageous people I’ve ever met. She was fearless. She would face off with slum landlords, gang members, trying to clean up the streets and help people out. And I think the combination of that intellectual influence and that passionate influence had the greatest impact on me.

Doug Monroe:

Well, it’s not uncommon for a dad to have that impact. When I saw your mom was President of Hall House, that is one of the great institutions in America. I’ve read about the history of that and it’s quite a thing, I would say.

Jonathan Turley:

Yeah. And that was my first interaction with lawyers is watching lawyers work with Hall House. They created one of the first abused women centers in the country. My earliest memories are following my mother at her skirt, just holding on as she went through really horrible settlements and slums and confronting dangerous people. And she was this tough, very passionate woman who would not back down. And it impressed me that she could get away with it. Half the time, I thought, even as a young child, this is where we’re both going to die right here. But she showed that you could get by with a lot by having confidence in who you are.

Does your worldview align with a certain political party?

Doug Monroe:

Well, this is a little bit of a dangerous question, and my lead in here is I see students here at UNC, some of the ones that we are close to, constantly almost out of survival, labeling themselves as conservative. So that way, somehow it creates a shell around them. And I think it’s not justified. I think the definition of liberal and conservative is very in flux now. So my question is, and this is a dangerous question, do you label your worldview political by party, legal, if you’re a con law, you’ll be this or that, originalist or, and even can you help me with labels as far as Jonathan Turley goes?

Jonathan Turley:

Well, I’m not a big fan of labels because I find them inherently inaccurate as you pointed out, Doug. I do find it humorous that if you go on the internet, half of them are saying that I’m a liberal, half of them are saying I’m a conservative. It’s a little more now towards the conservative side. I have been libertarian my whole life, but libertarians are a very broad group in terms of their beliefs.

The fact is I was raised in a very liberal democratic family in Chicago, very politically active family in Chicago. And I worked for largely liberal democratic candidates, Ted Kennedy, and I worked from Sid Yates in Chicago to William Proxmire from Wisconsin. I worked on the Mo Udall campaign. But I have evolved, but I always held the same libertarian views that maximized individual rights. I like to say that I don’t think I’ve changed that much, but the world’s changed around me. And I honestly believe that. Some of my views have changed, have evolved. I’ve become, I think, a bit more textualist than I was, but I don’t think as much as you might think, but the world has certainly changed around me. The center of gravity politically in terms of ideology has shifted.

Doug Monroe:

Yes, it has. And I would say the same thing about myself. I’m pretty much the same as I was almost as a student. I have evolved and it never stops. But one thing I will throw out there is I’ve noticed in the last five years, particularly with Praxis Circle contributors, the libertarians are some of the most ferocious fighters for free speech and for freedom and that kind of thing. And I don’t think you would’ve necessarily picked that out 10 or 15 or 20 years ago.

Jonathan Turley:

No, it’s true. It’s just that the problem is the libertarians are terrible at organizing because they’re all libertarians.

Doug Monroe:

They’re all libertarian. Exactly. Right.

What drew you to constitutional law? 

Doug Monroe:

How did you get drawn into constitutional law as you look back on it?

Jonathan Turley:

After I graduated from University of Chicago, I took time off to write the Great American novel. I ended up writing a couple of not-so-great American plays, and I decided that I would go to grad school. It was rather an odd transition because I’m a lifelong backpacker. And I had come down with Arbolencephalitis on a hiking trip to California and I made it back to Chicago and actually collapsed at a party after I arrived. And I was out for a number of days. And I decided in the hospital I wanted to go to graduate school. I was either going to get a Ph.D. in history or go to law school. And I ended up, to my surprise, because I was applying late, getting some offers from law schools and I decided to do that.

But I had always been drawn to lawyers after watching their work with my mother and my father at Jane Addams Hall House. I was surprised at how much they could do. We would go into slum housing where I remember one family was living on the third floor of a three-story building, and there was an actual hole in the roof where the rain would just come directly down. But for this mother and her three children, it was still better than living on the street. And I was astonished in watching my mother would fight with these slum landlords, go toe to toe, nose to nose with them, but then they would bring in these young pro bono lawyers and they would make fast work of this. And I thought, that’s a pretty cool thing in terms of service, that you can change the lives of a family like this. One day they’re living in literally a home with a hole in the roof and the next week you found them shelter and you’ve shut that down.

Doug Monroe:

That is fantastic. I went to law school because it was the only thing I could think I could do with a history and political science degree from here. But it worked out great. I loved it and I used it in my M&A practice, etc. And I’m still using it, but it’s a great overview for people to have.

Jonathan Turley:

Yeah. And you can see in my books that I am still unrequited historian, that I delve a lot into history in my books. And I do think it’s still that pull that I had.

What’s it like being a legal analyst on the biggest news networks? 

Doug Monroe:

Now I’ve got to ask you this question because this is the one main regular people want to know. What’s it like being on retainer for the top media organizations? What’s it like being on TV just about every day and also testifying before Congress?

Jonathan Turley:

I’ve worked for four networks and I worked actually twice with NBC, twice with CBS as their on-air analyst. I worked BBC and also Fox News. And during that time, which runs across three decades, I’ve seen a lot of changes in the media and not all of them good. Some of them are not likely to be reversed. We do have a tense and see, I think in most networks, that they have an edge. There’s a bit of a pronounced perspective now, and I think that that’s a factor of the market. People want that.

The test is whether you struggle to bring in both sides or whether you just simply yield and become simply an echo chamber type of analyst. Legal analysts have changed. When I started with NBC, I used to always joke that in my next life I was going to come back as a political analyst because you don’t have to be right. And for legal analysts, there was this expectation that you had to try to get it right. And as a law-

… this expectation that you had to try to get it right. And as a law professor, I feel that there’s an added burden to get it right. And it’s a very difficult thing. You’re used to speaking in a 50 minute increment. Now you’re reduced to 30 seconds, two minutes, four minutes is a lifetime. And I remember when I first started working at CBS, Dan Rather wanted to do a lifetime, which was about five minutes on the constitutional issues of this presidential transition. And the executives were not thrilled with that, but we did it. I had just started. I just come over for NBC and I had just started CBS. And so we did this segment and the President came up to me and said, “How do you think it went?” He was not thrilled necessarily with this investment. And I said, “God, I really didn’t work in Alexander Hamilton, and I really feel like that was a mistake.” And he looked at me like I had two heads and let go a line of profanities that ended with, “That signal is on its way to Mars. No one cares.” And walked away.

And I remember watching him walk away thinking, “This is not academia. This is a very different place.” So you do have to compromise. You have a very short period of time to reach a very large number of people. But I think that as an academic, you feel an added burden to get it right. I’ve always tried to get it right. I’ve always tried to block my personal interest or views. I try not to show those views because I feel like this is a privilege to speak to the American people, whether it’s on NBC or CBS or Fox. Fox has been really fascinating besides the fact that it’s such a, I have to say an anomaly.

I mean, if you had told me when I first started working for the networks that a cable news channel could be beating the evening news, that you could have a late night comedian on Fox that could be beating The Tonight Show, I would’ve said you were smoking something. Fox is an amazing story. They have more Democrats that watch Fox than CNN and MSNBC. They have the younger audience of those. So they have found this secret sauce that seems to be missing. As other outlets are dropping, some are really struggling.

Doug Monroe:

Well, I think be careful of flatterers, right? But you really do, in your commentary, you do try and get it right. I can tell you even refer to the law before some of your interviews, I’m just guessing. And I think you always offer balanced commentary, and I think that shows, so-

Jonathan Turley:

Well, thank you.

 Do you believe in the supernatural? 

Doug Monroe:

This question to me is almost like the stock market between opening and close. It goes like this for me. Do I believe in the supernatural or not? On balance, I do, but it’s hard to a lot of the time. So that’s my question to you. How do you think about it or believe in it or whatever?

Jonathan Turley:

I do believe that there’s something beyond the natural world that we see. I can’t say that I have great confidence as to what that is. I was raised Catholic. That has a huge influence on the way I think. But in many ways, I don’t want to give up the hope that we’re more than what we seen and that the world is more than what is observable around us. And I think that if anything, science only reinforces faith because the more we learn, we realize the less we know.

And we also realize that we have to think in new ways, that there’s a tendency to be incredibly rigid and view just what you see as the reality around you. And we were learning that that’s not the case. I mean, when you see some of the issues that have been raised in physics and space, I mean, I have to take a long time to delve into those subjects because it requires new pathways. You have to, in some ways transcend everything that you know about the world. And I think that a truly intellectual mind keeps their options open. And I do believe that there’s more to us than who we are.

Do you believe in natural law?

Doug Monroe:

That leads also into the next question, hopefully. And I noticed in reading Indispensable Right, almost immediately, that you talk about what I call natural law. And I would say about natural law, when I got into my own personal reading heavily somewhere 30 years ago, I started noticing that that was really what was missing in education that I got because it got ditched somewhere in the ’60s and ’70s.

Jonathan Turley:

You’re right.

Doug Monroe:

But I could tell that… So how do you think of natural law yourself or in writing this book and that kind of thing?

Jonathan Turley:

Well, to be a law professor who believes in natural law is viewed as something of a relic. I am in a very small minority. It’s considered almost beyond the pale for most law professors to believe that there is a law that exists separately, that pre-exists society. And that makes this book a bit different. I believe that the most revolutionary act of the American Revolution was embodied in the First Amendment. No country on earth had ever put words like that onto paper. None have since. Even Lafayette who went from our revolution to the French Revolution, when he wrote their version of free speech. It read a lot like ours except where we put a period, he put a comma and he added that it had to be consistent with federal or national law, which of course, destroys the American view of free speech.

It’s a fascinating thing that the United States had this moment because no country since has said anything nearly as revolutionary. And the book traces that. There were writers in England called Levellers who did talk about a natural right to free speech, but also the framers were heavily influenced by John Locke. And he also talked about the freedom of thought. And he talked about it in the state of nature before the creation of society. So the question that I pose to my students is whether there is some transcendent values that adhere to us as human beings. Now you can believe that that’s a gift from God, a divine gift, or you can believe that it’s simply something that is essential to being human. But either way, it’s a natural right. It’s an autonomous right. It belongs to you as an individual. It’s not a privilege that has been extended by the government.

If you take that view, it has a dramatic impact on how you deal with free speech because it allows for fewer trade-offs. The alternative in the book is what I call functionalism. And that’s the view that most law students are taught. It’s the view that most judicial opinions echo, and it goes something like this. It goes that we protect free speech because it makes democracy better. Its function is to carry through on the other rights. And it certainly does that. That’s the marketplace of ideas type of theory. But it also, if you’re protecting it solely for its function, it allows you to do far more trade-offs because there’s some speech that is high value and some speech that is low value. Some speech is good for democracy and some speech is not so good for democracy. And we have found ourselves on that slippery slope since the Adams administration. That brief twilight, that moment of clarity that we had at our founding was quickly lost as the Adams administration went to this British default. And I believe that that is why we are still struggling with what free speech is.

Doug Monroe:

Yeah, I would just add to that, as you have been Catholic, John Paul II and bringing freedom more into the Catholic church from the days of Leo III really embraced the anthropology of the free conscious and consciousness and all that it entails in being human. And so I think he brought that in there and made it relevant to the late 20th century in a fantastic way.

Merging of the Public and Private Sectors

Doug Monroe:

So two more worldview questions. One is, do you think of the private and public sector differently or the same? Is one pre or not? How do you view that in your thinking?

Jonathan Turley:

Well, I think that in many ways we’ve seen a merging of the public and private sectors. In fact, for free speech, it’s a dangerous merger where we’ve seen the government aligned with corporations, with academia, even the media in this anti free speech movement. We’ve also seen corporations adopting a greater governance role. And that’s something that we have to explore. It’s something I’m exploring in my next book. So in some ways, it’s blurring as we have these mega corporations that now are carrying out so much more of the function of society. When you think about just social media, social media is now more popular than the telephone for communications. It is the marketplace. It is where people now have political dialogue. So if you can control that as a corporation, you can control a lot in society.

Family: In Our DNA and Foundational Block of Civilization

Doug Monroe:

My last question is how do you think of family as a place in society?

Jonathan Turley:

Well, I actually think that family is this core founding block of any society that is still not understood and recognized by many. In some ways. I write a lot about parental rights and the diminishment of parental rights as a dangerous development. And I think that many people in this society have no idea what they’re messing with. There was a recent controversy over how parents would not be informed when their children, some very, very young, had decided to change their gender and that schools would keep that information from parents and change the name of the child, change all this other stuff about the child and keep it hidden. And I’m opposed to that. But what I’ve warned some of my friends on the other side of that issue is that you’re not messing with a partisan issue here. You’re messing with a primal issue here that when you look at democracy, when you look at the founding block of civilization, people didn’t come out of the state of nature because they wanted to embrace these overarching views of the future of man necessarily.

They came out of the state of nature because they wanted to be safe, and they wanted to be able to raise a family, and they wanted to be able to speak freely. They wanted to be able to have their children imbued with the values that they were raised with. This move against parental rights in that sense, is a move against the foundational blocks of civilization. And it’s also something in our DNA that I don’t think people are going to accept. It’s an issue by the way that cuts across democratic and Republican lines. So I think that the fight over parental rights and family rights is likely to be one of the most significant issues in the coming decade in the United States.

Indispensable Right and Free Speech in the EU 

Doug Monroe:

Yes, I’m finding just in the last six months, I’ve become a child’s rights advocate, and I didn’t even know what that was a year ago, really. So now we’re going to move on to Indispensable Right, and I’ve never done this on camera before out of all the books, but I would love for you to sign this for me.

Jonathan Turley:

Of course.

Doug Monroe:

Right while we’re sitting here.

Jonathan Turley:

Of course.

Doug Monroe:

I can tell you the day I finished it, who I was with when I finished it, and let’s just hope they’re all good comments on here, but there you go.

Jonathan Turley:

Well, thank you.

Doug Monroe:

I’ve read lately, I’d say four or five books on the issue, some related to the Alumni Free Speech Alliance at UNC and nationally. I’m on the board of that too, but interviewed Nadine Strossen in New York-

Jonathan Turley:

A good friend of mine.

Doug Monroe:

… and she was just totally delightful. What a… Wow. I mean, I think you two are at the top of your game.

Jonathan Turley:

Well, Nadine and I just got back from Berlin and speaking at the World Forum.

Doug Monroe:

I’ll put this so we can see this right over here.

Jonathan Turley:

And the World Forum in Berlin was probably the largest collection of anti-free speech groups and figures I’ve ever seen. There were two of us from the free speech community that I could see that spoke, myself and Nadine Strossen, but it was a reaction to Vance’s Munich speech and Europe is really gearing up. And the EU particularly in my view, is one of the most significant threats to free speech in the world.

Doug Monroe:

It seems like to me there are, this is totally aside, but four types of governance, the U.S., and I would put the UK still with us, continental Europe and communist China, and then there’s more or less mafia-like organizations all around. But yeah, Europe’s on a different program-

Jonathan Turley:

When it comes to free speech, the EU is demonstrably and probably irretrievably anti-free speech. The Digital Services Act is the most threatening thing right now on the boards for free speech, and they are using it aggressively.

Doug Monroe:

I’m going to make sure we have time for that later in this, because that to me is just fascinating and I’m seeing it in business too. I’m on some business boards and Europeans are not competing. I mean, Germany, for example, used to rule the world in manufacturing.

Jonathan Turley:

That’s right.

Doug Monroe:

They’re having trouble.

How did the “Age of Rage” develop in the U.S.? 

Okay, now to get to Indispensable Right. I love “The Age of Rage.” I just thought that was a beautiful, beautiful phrase to put out there and build the book around. And my lead-in is that in the 1960s when I was a kid, you had two really serious issues. You had the Vietnam War where men were dying all over the place and you had civil rights. And so there was a reason to be angry. And now we’re, well, let’s see. We’re angry about pronouns. I don’t know. It just seems like that rage has been pushed down to such itemized atomized things that we get mad about everything. So in the last decade, as far as free speech goes, how did the age of rage develop in this country?

Jonathan Turley:

Well, it’s interesting that the subtitle of the book is Free Speech in an Age of Rage, and at the age of rage because this isn’t our first. And in some ways, we’re not quite as good as our advertising. We have gone through periods of rage and we have turned on each other and we have arrested people by the thousands, communists, fascists, unionists, feminists. This is the unvarnished view of American history. And we have to understand that history of why we do it. In 1800, Madison wrote a wonderful piece on free speech that referred at one point to a monster, which he was referring to as sedition prosecutions, speech prosecutions. And that was one of those points, the sharp departure from the British. The Star Chamber that everyone knows of as an infamous secret tribunal was actually a speech prosecution tribunal. The Crown wanted to prosecute people for treason, but even largely enabling British judges balked at the idea of convicting someone for treason, for making a bawdy joke about the queen in some pub. And they said “It just doesn’t meet the elements.”

So the Crown created a treason light. It became known as sedition. And they created a new tribunal, which became the Star Chamber, and they then prosecuted the Levellers and many others for just pure speech. We rejected that model as part of our own revolution. But I was really captivated by Madison’s reference to this monster because it is a monster that lives within us. And when we are really afraid or we are really angry, we release it on our neighbors. And every generation has a moment where they believe they have a license to silence others. And that’s part of the strange thing about rage that I explore in the book.

Free speech is a value that’s easier to admire from a distance. If you talk about, as I do in the book, the McCarthy period, people are horrified. “How could you have ever allowed censorship, blacklisting to go on?” And then you ask, “Well, how about the censorship and blacklisting today?” And they went, “Oh, no, no, no. This is different. We have to deal with disinformation.” Well, every generation often uses the same terms, but there’s nothing different in it. And that’s the thing about rage. Rage, if you agree with, it’s righteous. And if you don’t, it’s dangerous. And you see it all around us. And what people won’t admit today is that they like it. They need it. When I was covering the Trump trial and I came out of that courtroom after he was convicted, there were people dancing in the street. It was this outpouring of rage, this release. But you also saw how addictive it is, how contagious it is. We’ve had that throughout our history.

And the question then is what’s the greater danger? The danger is not rage rhetoric, as I call it. It’s when rage rhetoric becomes state rage. It’s when the government uses the rage of others as a license to silence others. And every government will yield to that temptation. And so this book looks at the personalities and the periods that have shaped our views of free speech. And they’re really the true heroes. Our heroes are not John Adams who became the greatest hypocrite ever to occupy that office. I mean, he became everything that he fought against in the revolution. The heroes are all the people that we hunted down. They’re the communists and the feminists and the fascists and the unionists. They have very little in common except one thing. They just won’t shut up. And it took a lot of bravery. And it goes back to George Bernard Shaw when he said, “Unreasonable people expect the world to conform to them.” And he says, “That’s why all history is made by unreasonable people.” This is a story about gloriously unreasonable people who got it right and they were despised in their own time.

Why is free speech an indispensable right?

Doug Monroe:

There’s the government up here and then there’s people down here. And so you can almost draw a triangle where the rage goes like this and like this and like this and we’ll get to that. But the second question is, I’ve rephrased this one on Indispensable Right, why is free speech the indispensable right? You mentioned it’s an end and a means or a means and an end. Most people think of it as a means.

Jonathan Turley:

That’s right.

Doug Monroe:

So why is it the indispensable right?

Jonathan Turley:

Well, it’s a great question. I use the title of The Indispensable Right because it came from an opinion by Louis Brandeis, who is one of the greatest civil libertarians ever to sit on the court. And in this case called Whitney, he wrote one of his most beautiful passages about free speech, about how it is indispensable, how all other rights depend upon it. But the irony is that that was a concurrence to upholding the conviction of Charlotte Anita Whitney, who was a communist, and she was arrested for speaking against lynching. So you have this anomaly of this great civil libertarian who was joined by Oliver Wendell Holmes and others, sending this woman to jail for speaking against lynching whilst talking about the indispensability of free speech. And the opinion itself showed it was entirely dispensable. And the question then is why? How could this great mind ever sign off on such a resolve?

And the answer is that we lost our way, even the greatest among us after the revolution when we embraced functionalism. You, Doug, really put it well when you said, “Many people view it as a means.” That’s functionalism. That’s what I talk about in the book that even wonderful models like the marketplace of ideas is really functionalist. It’s saying we protect the marketplace of ideas because it helps democracy. But if that is your reason, it means that there’s some speech that clearly won’t help democracy. You can’t say that in the Brandenburg case, for example, KKK Wizard spewing hatred about Jews and Catholics and others is beneficial for society. So it puts you on this slippery slope where you can make trade-offs. And that’s where we lost our way and it became dispensable. I believe that it’s indispensable, not for democracy, but for humanity. I think that we cannot be fully human without free speech.

And the book looks at how we’re hardwired for free speech. There are studies that show when people are cut off, explorers, prisoners from being able to speak, they have physiological changes, not just psychological changes. Parts of the brain actually shrink, like the hippocampus actually physically shrinks if you don’t use it. We have a need to project part of ourselves into the world around us. And you see that in things from the grand to the gross. When I teach free speech, I often walk around the classroom until I find someone doodling. And I say, “Are you doodling?” And the student immediately panics and says, “No, I was listening.” And I says, “No, no, I love doodling.” Doodling is great. Everyone doodles. People doodle at weddings, funerals, they doodle with goats in a boat. They doodle everywhere. But the question is why? Half the time you don’t know you’re doodling. Half the time you’re doing geometric shapes that turn into just a blob of ink.

And we almost have to be creating something. And you see that in the starving artist. You see that with Van Gogh. Here’s a person who was starving and got a small amount of money, and instead of going on and buying food with it, he bought more canvas and paint. The most absolute overriding impulse of human beings is to survive. And yet this starving artist chose canvas over food. The question again is why? And the answer is that we are hardwired for speech. We need it to be fully human. And that’s why it’s indispensable. And if you take that view that it’s a natural right, that it belongs to us as part of an individual autonomy, it becomes harder to make those trade-offs.

Doug Monroe:

Absolutely. The way I put it is the mind has a mind of its own.

Jonathan Turley:

Right.

Doug Monroe:

Okay. It does. “Shut up.” “Okay, I will.” But once we’re above survival, creativity kicks in.

Jonathan Turley:

That’s right.

How does free speech support democracy? 

Doug Monroe:

Now once we’re beyond sustenance. And that’s the essence of genesis, I think, anyway. So you’re writing a new book and it is about democracy, and so I know that free speech does support democracy, but I also know that the founders didn’t like democracy a whole lot. So how does free speech support democracy in-

Jonathan Turley:

Well, the thing is, even though I don’t like functionalist theory as the reason for free speech, it’s clearly subsumed within it. Free speech is essential for democracy. It’s just that it’s more than that. The second book, which will be out for the anniversary of the 250th anniversary of the Declaration of Independence, looks at what democracy is and the future of democracy in the 21st century, as we face really astonishing changes from robotics to AI, to global governance. And half the book looks backwards, half the book looks forward, half the book looks at a tale of two cities, Philadelphia and Paris, and why one stabilized in Philadelphia and one became the terrors and a bloodletting in Paris. And what it was that was the miracle of Philadelphia, the true miracle, was that democracy did not become democratic despotism. And I take from that looking forward of how we can rely on those same values to get us through this coming period, which I think will be the greatest threat to democracy there is.

Now, part of it, of course, is that we’re not a democracy. We’re a republic. And on this, I talk a lot about James Madison. James Madison has been vindicated throughout history in his views that the greatest danger to any system of government are factions. And that democracy, left to its own devices, becomes tyranny. So you can use the republic, you can use representative democracy to blunt those impulses in a very significant way. And if you want to see what it’s like without it, look at Paris. And much of my book talks about Thomas Paine.

Crosstalk on Brilliance of the Founding Fathers 

Doug Monroe:

By the way, two weekends ago, we just had the 250th anniversary reenactment of Liberty or Death.

Jonathan Turley:

Oh yeah.

Doug Monroe:

In St. John’s Church. I’ve been very active there for a long time, as well as the Civil War Center. And so Patrick Henry did it again, and he was fabulous. He’s got to be one of your favorites-

Jonathan Turley:

He is.

Doug Monroe:

… because he was an anti-federalist.

Jonathan Turley:

Yes, he is.

Doug Monroe:

But…

Jonathan Turley:

Yes, he is.

Doug Monroe:

But your man, George Washington, when you look at the founders, they were astonishingly brilliant. I mean, really just off the charts.

Jonathan Turley:

I think people don’t realize how fortunate we were on the collection of people that came together. And it was almost coincidental. It was almost accidental. You have figures. James Madison, in my view, is the towering figure throughout history in terms of the science of governance. And he would devour books on government. Even wrote to Jefferson once in Paris saying, “Why aren’t you sending me more books on governance?” Because Paris was the center of the book universe back then. And in fact, they still sell books on the street that Jefferson would go just trolling to find more books for Madison.

And Jefferson wrote back almost with distemper and said, “How many books do you think there are on government?” Madison had this insatiable appetite. He viewed governance as a science, not as an art. And his views have been vindicated throughout history. But also you have people like Thomas Jefferson, George Mason, and others. This collection, the depth of that bench is astonishing. And the American people have no idea how fortunate and how unique that moment was. I mean, the French Revolution had some geniuses, but they were largely fractured so that they did not come together to merge their viewpoints the way that we did. And that’s the difference why we became the world’s oldest, most successful democratic constitutional system, and Paris took itself to the guillotine.

History of Free Speech in the U.S. 

Doug Monroe:

I want to get you to see if I can get you to make a statement about your historical presentation somehow. It’s hard to do in a nutshell. But from what I saw early on, you had sedition as an issue because you had a very young country that had never done it before. So, they were very afraid in a lot of ways. And you had the two superpowers breathing down their—three, actually—but one was fading in the UK and France, and with Spain fading a little bit by that point. They could have come in at any time. And that was known. And then more recently, it’s been, of course the communist threat, which came about starting with Marx, but it didn’t really seep into the US that much till the late 1800s. And so, there’s this fear that drives the government to protect itself. And I love all the rebellions, each rebellion from Bacon’s on. You went through all of those. Can you summarize American history as it relates to free speech and the government, because that’s what we’re talking about in the First Amendment?

Jonathan Turley:

Yeah, the book goes through the so-called rebellions that occurred after the revolution. And they are fascinating and a bit chilling. Some of them were not really rebellions. You saw figures like Adams cracking down on dissent. Many of these farmers in Pennsylvania, for example, had legitimate grievances about losing their homes, losing their farms, and the sort of disconnect of representation to the capital city. They were not truly revolutionaries, but there were people in government who wanted to use these rebellions to create the case for the federal government and the federal army. And that includes people like Alexander Hamilton who took a very harsh view of these uprisings.

You see this pattern emerge where the government’s excess in the moment is what drives the history. In many of these instances, it is state rage that responds to rage rhetoric. In some of these rebellions, you have a lot of rage rhetoric. You have farmers who are very upset over things like the whiskey tax. But it’s really the government that turns it into a true rebellion. It is state rage. And that’s the pattern that emerges over and over again, all the way through the Palmer Raids and then to our present day. The government often views rage rhetoric as an opportunity. An opportunity to expand their control over political dialogue in the country. You certainly see that today in Europe. And it is a pattern that repeats itself in this pendulum swing that we have in history.

Global History of Free Speech

Doug Monroe:

Let’s focus a little bit on free speech development. Same kind of question, but outside America, where you have Plato, and Socrates, and Cato and on through Blackstone. I didn’t realize he was more sedition-oriented until I read your book. And then Locke and Mill. How would you characterize the development of free speech outside the US? It’s kind of hard to see a trend there, I think.

Jonathan Turley:

The book goes back all the way to Ancient Greece and to Athens, where fascinating enough, the Greeks had two terms for free speech. One was free speech essentially in your private conversations and one in the agora in the public space. And so, from the very outset, there was curious division. And there was more protection for speech in the agora. And that sort of created this dichotomy that exists particularly in functionalism, that there’s some speech that is public-oriented and we need to protect that because its function is part of a democracy. And that puts us on this sort of slippery slope. But also in these early texts, you see this idea that human beings have this natural impulse to speak. And that comes out in some early philosophers, including ones that were very influential like Locke.

But also people like Spinoza who said, “Look, the reason we left the state of nature to use sort of the Hobbesian view, is that Hobbes views the state of nature as a sort of brutal violent system.” So, he sees us as coming out state of nature because we really needed a Leviathan. We needed this great sovereign. And that itself brings its own negative consequences. For someone like Spinoza, he argued, no, we left the state of nature because we wanted to be fully human. We wanted to be able to have things like free speech. So, no, we don’t embrace this absolute ruler because that just replaces one form of despotism with another. But as you sort of move forward, you see this evolution of what free speech is.

And the British with Blackstone really propelled this idea that free speech is a privilege. The British have never protected free speech particularly well. They certainly don’t today. And a lot of that is Blackstonian. This idea that you protect free speech until it becomes a danger to the government, a danger to stability, which of course guts the very essence of free speech. That rejection of the Blackstonian view is the very definition of the American Revolution. I mean, that was our most revolutionary act.

And no country had ever said what we said. And the key is that we meant it. It was really the court system that had this Blackstonian default. It was during the Adams administration that it comes back literally with a vengeance as they use the Alien and Sedition acts to arrest political dissidents. And Jefferson was better, but not perfect. I mean, after all, he pardoned everyone, but they were all Jeffersonians. And then he did prosecute some for Sedition. So, really the person that comes out of the book as the most redeeming of the characters is James Madison. He was the one who saw this for what it was. And he took the task as contemporaries and he talks about the monster that lives within us. It was that clarity that we had at the outset of the Revolution.

Free Speech, a Free-Falling Defining Value: EU a Leading Indicator 

Doug Monroe:

This is just a clarification for lawyers that sometimes you go through law school and simple things don’t jump out at you. Like the First Amendment is about Congress not denying. And so, if you’re not Congress then to be protected by free speech, where is it in the law? And it’s got to be, am I wrong, tort, criminal and state and federal law? I mean, where is it? It’s there maybe, but maybe not.

Jonathan Turley:

Yes, but actually the book talks about this because one of the old saws of the anti-free speech movement, and this came back with particularly in a pronounced way in the last few years, is that, well, these are corporations that are engaging in censorship. So, it’s really not a violation of free speech. It’s fundamentally wrong. The First Amendment is not the embodiment of free speech. It deals with the most prevalent threat to free speech of its time, which was government censorship. But that’s not what free speech means. It’s sort of like I always ask people to take this argument, if the Constitution or statutes didn’t outlaw racial discrimination and universities or corporations engaged in racial discrimination, would you say that it’s not racial discrimination? Would you say that it’s okay because it’s not prohibited? There’s a value that defines us as a people. Free speech is one of those values.

And yes, when higher education, when corporations engage in censorship, it is censorship. And in fact, the ACLU takes as long taken the position that of course its censorship when done by private parties. What happened in the last few years was an alliance between the government, a coordination between the government and corporations. In my view, that is still a violation of the First Amendment. I believe there was coordination. They became agents of the government. They worked with the government. But we don’t need to answer that question in order to condemn it. It’s still all a violation of free speech values. And ultimately, when we look at the anti-free speech movement that exists today, it’s unprecedented. It’s not that we haven’t had anti-free speech movements historically. We just have never seen anything like this. We’ve never seen corporations, the government, the media, academia join together. Two of those groups have historically been proponents for free speech.

And the fact is, free speech isn’t a free fall. I just got back from speaking in Berlin at the World Forum. I was one of only two free speech advocates that spoke at that event. And the Europeans are doubling down, particularly after Vance’s speech in Munich, on censorship. That’s what the Digital Services Act is. And I spoke with free speech groups in Europe, and they’re on the ropes. Free speech isn’t a free fall in Germany, France, England. That wave is now reaching our shores. We have our own homegrown, anti-free speech movement. It came from higher education, it’s now metastasized. But that wave is now here. And we have to hold the line here and now if free speech is going to survive.

When I was in Berlin, I asked the audience there how things are going. They’ve been engaged in censorship in a major way since World War II, and we’re speaking in Germany. And the fact is, the Germans began by censoring after World War II by zeroing in on Nazi symbols and statements. And then of course it expands as it always does, to disinformation, misinformation, malinformation things that are insulting to any groups, or ideology or religion. And I asked them, how is it going? Because the last time I checked, the neo-Nazi movement in Germany is flourishing. There are thousands marching through your towns. You haven’t even made a dent. But you know where you’ve succeeded? A recent poll in Germany showed that only 17% of Germans feel comfortable speaking publicly. So, you’ve silenced the wrong people. But maybe that’s the point. You’ve gotten control over what people can say. And that’s what in the United States, we have to look across the ocean to see where we’re going and what we have here to defend.

Functionalist vs. Autonomous or Natural Rights Approach

Doug Monroe:

I would like a statement, please, sir, on, you have referenced this in several answers so far. But just as I read your book, I see the functionalist versus the, I’m going to call it autonomous approach. Is that correct?

Jonathan Turley:

The natural rights approach. Yeah.

Doug Monroe:

The natural rights.

Jonathan Turley:

Autonomous. Yeah.

Doug Monroe:

And you can also weave your answer. So, I’d like sort of a definition on that in a sound bite, not to coach you. But you could also weave it into the Oliver Wendell Holmes. If you go to law school, it’s like everybody’s just in awe of him. And he’s kind of the bad guy. And I would like the way he picked him out and called him out in posthumously. And Louis Brandeis, of course, is a hero. Could you give us a functionalist autonomous definition?

Jonathan Turley:

Sure. Yeah, I’ll separate the two out. The book argues for an autonomous right, a natural right to free speech, that it belongs to us as human beings. It’s not a privilege bestowed by the government. It doesn’t exist at the will of the government. The opposing view is a functionalist view, that free speech is protected because it benefits society. It is a privilege, and that certainly is the view of Blackstone and certainly the British view that we broke away from.

The book is suggesting that our most revolutionary act was breaking away from the British on that issue and embracing a natural rights or autonomous view. It is a right that we need to be fully human. It’s a right that belongs to us as individuals, not as citizens of the state. When I wrote the book, I had a wonderful editor named Robert Messenger who asked me, “Do we really need all these pages on Oliver Wendell Holmes?” And I said, “What a silly question.” I thought I needed twice as much. The reason I have a long section on Oliver Wendell Holmes is that if you really want to see where we lost our way on free speech, you need to understand where he lost his way. This is one of the most brilliant minds we’ve ever produced. He was a wonderful writer. He was a profound thinker.

The Importance of Oliver Wendell Holmes to Free Speech 

Jonathan Turley:

His life was storied. And he was a very brave man. The unluckiest soldier in history, as I explore every major engagement he went into, he was wounded. He attracted lead shot like trailers attract tornadoes. And the strange thing about Oliver Wendell Holmes, though that has always intrigued me when I’ve taught his cases and writings in class, is he’s different. He is positivist. He believes that the basis, the authority, the legitimacy of law, it really comes from how it’s enacted. It is the product of a democratic process. It is not based on natural rights. He really had a vehemence against natural rights. Now, a lot of positivists had that, but not like Oliver Wendell Holmes. When you read Holmes, there was not just a vehemence, it was almost an anger that would come out. And I wanted to know why when this happened. And part of it I traced back to when he was at Harvard. But I think that it was reinforced when he went to the Civil War.

I note that in his kit when he was wounded, there was an account of what was in his kit in his tent. And I was alarmed to see that one of the books he brought to the battlefield was Hobbes Leviathan. And it would be the one book that I wouldn’t want him to read in that circumstance, because I’m sure as he was surrounded by this carnage, it all made sense to him that humans are brutal and violent, and that we left that to create this government, this Leviathan. And that’s where our rights really come from. That certainly comes through in his writings.

And the book talks about his relationship with his father, Holmes Senior. And in some ways, I must admit, I tended to like Holmes Senior more than Holmes Junior. Holmes senior was sort of a free thinker, almost Bohemian. He taught at Harvard Medical School, but he didn’t want to be a doctor. And in some ways, Holmes Junior resented it because he was so successful. He was a brilliant surgeon. And at one point, his father went out and sawed the MD off the sign in front of his house. And that was the type of thing that I think that Holmes Junior was a pretty tied down character. There was a certain rigidity to him that is not present [inaudible 01:17:07] what his father wanted to be. What his father was, was a great poet, and he may have been one of the greatest poets of his time. But it was his father who went to the battlefield and saved his son. Even though they were estranged, he brought him back to Massachusetts and nursed him back to health.

And of course, Holmes Junior being an incredibly brave person went back and joined the Harvard Regiment. They famed Massachusetts 20th, which had one of the highest casualty rates in the Civil War. But the book also talks about the worst thing ever uttered by a Supreme Court Justice in terms of free speech. It is the one line that if I could go back in history to interrupt him as he was writing the opinion, it would be that one, I would try to spill tea on Holmes just before he wrote that in paper. It was actually not his line, this idea of screaming fire in a crowded theater. It actually, it seems to me it came from a brief from another case by the government. And he simply rewrote it slightly. But it is the single most unfortunate line ever uttered by a Supreme Court Justice. And it is the mantra of the anti-free speech movement.

After the Twitter files were released, I had testified in the House Judiciary Committee. And before they were released, all the Democratic members said, “Professor, you don’t have any proof there’s any coordination with the government.” And I said, “I actually think I do. If you look at my testimony, it’s just that I say that it’s incomplete because Twitter won’t release the files, neither will Facebook.” But then the Twitter files were released and it destroyed this narrative. And soon thereafter, I testified again in the House Judiciary, and it was like a switch had been thrown. Democratic members were no longer denying that there was censorship. They were saying, “Of course we’re censoring. We have to. This is disinformation.” But then out came, the old saw.

Representative Goldman from New York said, “Professor, Oliver Wendell Holmes says that we can censor when people are crying fire in a crowded theater, we’re allowed to act.” And I asked him, I said, “Congressman, you do realize, don’t you? That comes from Schenck, an opinion where a socialist was convicted for opposing the draft by passing out a flyer that quoted from the United States Constitution. Is that the standard you want for the United States? Because Holmes didn’t. He walked away from that quote, but the Supreme Court walked away from Schenck and adopted the Brandenburg standard.” And he interrupted me. He says, “We don’t need a law lecture.” “But I suggest, I think you do. I think you do, because you’re the same guy. You’re the same voice. We’ve seen you throughout our history. You’re actually using some of the same terms. There’s nothing new about you. Every generation believes that it has a right to silence others that they have some existential threat. You just call it disinformation. But the fact is, you’re the same guy.” And so, yeah, we do need a law lecture and particularly about that line.

How should we address speech that harms society? 

Doug Monroe:

So, I want to go now, I’ve got three more questions on Indispensable Right. One is, this is probably just to be open, and honest and unapologetic. Probably why I’m not a libertarian is I just don’t like stuff like pornography. If everybody was Doug. If Doug was all the males in this country, there would be no pornography. Who knows? Maybe I don’t like people that get away with stuff that I can’t come close to getting away with. But there are some things that just do involve speech that I don’t think help society. How do you think about that? You can offend me in any way you want.

Jonathan Turley:

No, the thing is-

Doug Monroe:

But I think the way it’ll go at it is what if everybody is a Muslim within the republic or democracy? Or everybody is a communist? How can culture legitimately, or religion, influence free speech, if at all?

Jonathan Turley:

Some people call me a free speech absolutist. I don’t think that’s true. I do think there are some limits on free speech. But I must admit that my natural default is always with free speech. I am a dinosaur in that sense. I believe that the best way of dealing with bad speech is good speech. But that comes at a price. You have to allow people like Brandenburg to spew his hatred. You have to allow people who engage in pornography. They are consenting adults to be able to exchange that information. As long as it doesn’t involve criminal conduct like child pornography. It comes at a cost. But the thing that I warn in the book about is that once you’re on the slippery slope, once you start to censor some, you inevitably censor many. That’s the story of Europe. They started to censor in a narrow group, and now they have one of the greatest censorship systems ever in the history of the continent.

One of the things that I said in Berlin at the World Forum when I was speaking to many in the EU, is when I ask, how is it going? The question is really, how’s censorship going? The book points out that in the history of humanity, censorship has not worked once. It has a perfect failure rate. It has not silenced a single idea. It has not silenced a single movement. But what has succeeded in doing over and over again is expand the power of the government. But in terms of what it purports to do, it has failed and will always fail, because free speech has a way of getting out. It’s like water. And if I am right, and others are right, that free speech is a natural right. You can’t kill free speech without killing us.

So, yes, there are areas where you have to accept that people will engage in speech that you find obnoxious and grotesque. Nobody in their right mind would say that Brandenburg is contributing something positive in the hate he was spewing. No one would argue what Brandenburg was spewing, and his hatred was beneficial for society. It was a negative cost of free speech. But the value was not the society, but the Brandenburg. The value is to each of us to be able to project part of ourselves in the world around us. For some of us, that image is grotesque like Brandenburg. For some of it’s magnificent like Michelangelo. But you can’t choose because it is that need to project ourselves. That is the essence of free speech.

And then we have free speech to be able to counter people like Brandenburg to defeat bad speech with good speech. I think that we have a far better record of the success of Free Speech than Censorship does, which has a perfect failure rate. But what I would suggest to people is that you can’t expect free speech to end racism, sexism, anti-Semitism. Unfortunately, that is also a gene within us. There is part of us that rages against others that are unlike ourselves. That’s always going to be part of it. But if you look at the arc of history, free speech has moved us in the right direction. I think there are fewer racists, and sexists and anti-Semites tonight. I’d like to believe that. But that is a victory of free speech.

Doug Monroe:

Yeah. And I think the kind of failures that I’m concerned about in say, not liking pornography or cultural failures more than they are other types. And it just seems that whichever direction you go, even if it’s just keeping your protest civil in a university, you have to employ a harm principle. Even the greatest protectors of free speech, like say Jefferson wouldn’t be one of the greatest by any stretch, but if it doesn’t break my arm or whatever, it doesn’t hurt me. Once you apply the harm principle, it’s very difficult to find an overriding principle in how to use it. It’s always a slippery slope. So, law cannot fix everything, it seems to me. Unless you’ve got ideas that I haven’t.

Jonathan Turley:

No, and I talk a lot about Mill’s harm principle, because that is a touchstone of many Libertarians that the proper role of society is to protect from the harm of others, but that one of those harms for Mill was not free speech. And there were some countervailing statements made by Mill, and I certainly talk about that in the book. But what is concerning is that many people, particularly in higher education, have turned the harm principle on its head, and argue that free speech itself is harmful, and must now be curtailed. That’s what much of the book rails against.

Viewpoint Diversity: Athenian Circle and Free Speech in Higher Education

Doug Monroe:

So the last two questions are you seem to, and I’ve got way more on the book, but I want to get to this other content. You have two very strong recommendations in the back, that I see. One is toward universities, which I’m very interested in here, and that’s about the Athenian Circle and what you would like to see there.

Jonathan Turley:

It’s interesting that the term academics and the academy, that we use today, comes from Ancient Greece. It’s actually named after a person, who ironically betrayed Athens by allowing the enemies of Athens in, by showing them where they needed to go. And that act of betrayal is forgotten. What is not forgotten is that-

Doug Monroe:

I know who you’re talking about. Go ahead.

Jonathan Turley:

… but that, much of what higher education is, can trace to a grove in Athens. Where great thinkers would meet with their students, and notably, they would form a circle where they would speak. And the notion was that there was safety in that circle, that you could express thoughts that you might not express in the Agora, or among neighbors. There was a protected environment in which thought could flourish.

What I say in the book is that we are facing an existential fight over higher education. I think we’re destroying higher education in our society. We have had a purging of faculties, many faculties no longer have a single Republican or conservative. Most faculties, particularly law schools, have just a handful of people, even though half or more of this country are conservative and Republican. And the result is that higher education has become an echo chamber. It’s also become decidedly anti-free speech, where free speech is viewed as harmful. And the result is that most universities run from the left to the far left.

And what I suggest in the book is that we cannot sustain higher education like this. We’re sawing on the branch we’re sitting on. And you see that, in surveys that come out, even in Harvard surveys where only 8% of the students are conservative. The vast majority of Harvard students are still saying that they feel chilled, that they can’t speak their mind. So this type of intolerance, this orthodoxy, even affects those that it benefits. And what I ask in this book is, how we can deal with a higher education that is alienating half of the country? Our numbers are falling, our revenue is falling, and I think part of it is in fact this sense of intolerance in higher education.

I talk about in the book how, I went to University of Chicago, and I loved it. I loved every minute of it. It was like walking into the bar scene in Star Wars, where everyone seemed exotic. I lived for a long time at a vegetarian cooperative, where the book The Jungle was written, called the Dorchester Cooperative. And down in the basement the Spartacus League would meet, they were a bunch of Trotskyites, and upstairs we had militant vegans. And next door we had crazy Libertarians. And I loved every minute of it. I thought they were all insane. But I loved every minute of it, because I couldn’t get enough of people that were seeing what I was seeing, and seeing something completely different. And it changed me. I’m not sure about my views, but it changed me in terms of understanding other people.

It was the most almost magical moment of my life, for four years. And I look at my students today and I realize they don’t have that, that they are being taught in largely an echo chamber, where orthodoxy more than inquiry prevails. And it’s almost a sin, for what we’ve done to our students, and what we’ve done to higher education. For all of the proposals that I make to try to regain free speech values, higher education will be the last fight, it will be the hardest silo. Because this has been an objection that has made for years, and my colleagues have not done anything, they won’t do anything. They have replicated their views. They like it because if you can get rid of conservatives, Libertarians, dissenters, you have greater speech opportunities, you have greater advancement of your own work.

And they’ve done that by destroying the sense of the safety of the circle, as I talk about in the book. And I talk about a professor named Mike Adams, who is a conservative in North Carolina, and he had been repeatedly suspended and put under investigation for saying things on social media that were conservative. And there was a sharp difference between radicals on the left, who have said everything from “blow up conservatives,” to killing conservative protesters who have not faced investigation. But he was repeatedly subject to investigation, and he had to go to court repeatedly, and he fought back those efforts. And then he made a dumb joke on social media, which he immediately apologized for. But again the investigations began, the suspension, and they went to him and he finally agreed to a settlement and to leave teaching. And roughly the day before he would no longer be a professor, he went home and he blew his brains out.

And for academics you know, in some way, why someone would do that. For non-academics, it’s sort of harder. Most of us have only wanted to be academic, we’ve only wanted to be teachers, it’s everything we wanted to be. And I think that he was 24 hours away from being someone else, and he couldn’t think of it. That’s the cost of it. What this movement does, this cancel culture, is it takes away everything that you value as an intellectual. It takes away publications, it takes away appointments. It even takes away classes. Most of the faculty in this country are contract professors, you can lose your job, and you lose everything you wanted to be. That’s the cruelty of it.

So this is going to be the hardest of the fights in the book, but it’s one we have to win, because this anti-free speech movement began in higher education. And that’s where it will end, if we’re successful.

 UNC a Traditional Beachhead for Free Speech 

Doug Monroe:

And I just want to thank you for coming here, because I think right here in Chapel Hill is a beachhead for doing that. Just as a FYI, I don’t know if you’ve ever heard of Carolina UNC Chapel Hill being referred to as “the Berkeley of the South”? It is the Berkeley of the South. When I was here, it was wild and crazy. And one of the things I did, I’ve read everything Leon Trotsky ever wrote, which is a lot, translated into English. Okay, that’s the qualifier, but still. And my first Praxis Circle interview was, I think 2014, or something. We didn’t have a brand then, but my professor that did my honors project, his name was Sam Baron. And he was the world’s leading authority, even in the Soviet Union, on George Plekhanov, who was the father of Russian Marxism. He took Marxism into the Russian context.

So I’m interviewing this man that I knew when he was in his 50s, when he worked together, and he was 93. And I did not know that he was blacklisted. He was blacklisted as a young PhD, out of Columbia, at University of Tennessee. And he never let politics get into the classroom that I saw, about any of that. But I always wanted to understand, as he would say, “the enemy,” back in the Cold War. But I really think you’re onto it, and we really do need to improve there.

Sedition vs. Protecting the Government

Doug Monroe:

So your second major pitch is one you’ve already talked about, is anti-sedition laws, and that’s one that I think it’s front and center in people’s views of history. But you don’t really think of it in a legalistic sense, and you totally convinced me on that one. Even though I think government needs to survive, it’s one of say, Jon Haidt’s pillars of morals, is having a Hobbesian government that can stabilize things. So give me your pitch on sedition laws in general. How do we protect the government, yet not do sedition?

Jonathan Turley:

Yeah. Sedition has been the scourge of free speech for hundreds of years, and the Star Chamber was designed for sedition. It was designed as a speech prosecution forum, or tribunal. And it was sedition that was much on the minds of framers, and certainly drafters of the First Amendment. And people like James Madison wrote beautifully about sedition, as a monster, which it is. The funny thing is that we’ve never broken our sedition addiction. We certainly reduced the number of speech prosecutions in this country, as opposed to Great Britain and other countries, but we didn’t break it entirely. And so we have had effective sedition prosecutions throughout our history, with John Adams, but also throughout our history we’ve prosecuted people for speech.

And we still use sedition charges, seditious conspiracy. And the question I ask in the book is, why? Seditious conspiracy includes things like interrupting official proceedings. It is entirely redundant with other crimes, it’s just that the government wants to convict people of sedition, because it has that added bite that they have dangerous thoughts. What I call in the book “bad tendency thoughts,” and bad tendency thoughts were the justification for sedition prosecutions. And the book asks why we really need sedition. Even if you look at January 6th, there’s only a handful, a small number of people charged with seditious conspiracy. The question is, why? You know, they were charged with very serious crimes. Why do the government want to call them seditionists?

And the answer is because it achieves a political purpose. It vilifies views, but it also suggests that you can be prosecuted for having bad tendency thoughts. And so what I suggest is we can eliminate sedition crimes once and for all. We can complete the work of James Madison, we can slay Madison’s monster, and just say that we’re no longer going to prosecute sedition. We’ll prosecute conduct, we’ll prosecute people who try to stop our proceedings, including key proceedings and our Constitutional process for the transfer of power.

January 6th was serious. It was a desecration of our Constitutional system, and it was important for us to prosecute them, but let’s prosecute them for what they did, not for what they thought, what their values were, prosecute them for what they did. They stopped a Constitutional process, they stopped these proceedings, they engaged in violence. And that goes to much of the theme of the book, that many of the issues that we have allowed to distort our view of free speech, is because we have lost the distinction between conduct and content. You don’t have to prosecute people for what they believe, prosecute for what they do. And a good example of that I raised in the book is that while we were arresting anarchists left and right, there was one group in New York that had been subject to investigation and prosecution because they were anarchists. And they were wronged. They should not have been prosecuted.

But then one group, a small number of anarchists, decided that they were going to kill an industrialist. And they set about to build a bomb, which were uniquely bad at, and they realized that they couldn’t really build a bomb, it was not as easy as they thought. So they went old school with an actual revolver to shoot an industrialist. Well, they were in fact arrested, rightfully so, because what they were engaged in was conduct. The minute they started… Now, keep in mind a lot of people will bring up this old saw saying, “Oh, well. Speech can be a crime. What about conspiracy?” Well, yeah, I mean, if the conspiracy is to build a bomb, yeah. You use words to do that, but the object is still the conduct. They are actively engaged in creating a bomb. So the fact that they use words doesn’t mean that you can start prosecuting free speech for the content of the speech, it is that you can prosecute speech when it is part of a concrete conspiracy to commit a specific criminal act.

Now, people often point as well to defamation and say, “Well, Turley seems to forget that you’re allowed to bring people into court for defamation.” And the answer is, once again, it’s an old saw, and it’s not very convincing. Defamation is a civil action that could be brought against people who say things that harm you. It’s the same reason that fraud can be done with words, but there’s a difference. Fraud, defamation, is harming an individual or group with a falsehood. You still have to prove falsity, but it is specifically directed to a person or a group. So none of those dogs will hunt for the anti-free speech movement, they repeat these things often, but they’re rather fallacious. They’re pretty, really, superficial.

Crosstalk about Basic Western Legal Principles 

Doug Monroe:

You know, in criminal law, on your first day, you learn, what is it? Mens rea, actus reus. So there’s a clear division between the mind, and what you think about, and the action. And then also in property and contract law, you’ve got to have one other thing. Harm.

Jonathan Turley:

Right.

Doug Monroe:

Okay, if there’s no harm, then we ain’t got time for it. Society says, “Move on.”

Jonathan Turley:

Right.

Doug Monroe:

And so, it’s a combination of those three elements that you’re really talking about, I think, that can be easily defined without sedition laws. And so, you convinced me of that totally, thank you.

Are laws enough to protect free speech? 

Doug Monroe:

So my question is, is law enough for us, here? And I guess the lead in is, education is important when it comes to free speech. And so, will laws protect us, or do we need more?

Jonathan Turley:

Law does have an impact on culture. The beneficial impacts, or some negative impacts, but the beneficial impacts is that the Supreme Court has allowed dissenting views to flourish. It has protected those who form insular minorities to be able to function, to advance their own values, whether it’s religious or non-religious. So that has an impact on culture, but it doesn’t change culture in the macro sense. That requires something much more profound. The fact is, as Benjamin Franklin indicated, with whether we can keep this Republic, is that every generation has to renew that commitment. And it’s only going to be renewed if people understand who they are.

In my book that’s coming out on democracy, I talk about a Frenchman who came to this country, and wrote this essay that asked “What is this America?” And he meant it honestly that what he saw in the United States, at the very beginning of who we were as Americans, something different. We have to remember that. We have to remember that we have a core identity, that really reminds us that the Constitution is not a covenant with the government. It’s not a social contract with our leaders. It’s a leap of faith. A leap of faith in each other that, even when we disagree, maybe even hate each other, we will be there. We have each other’s back.

Now, that’s obviously important for free speech, but it means that we have to do better in teaching civics. We also have to do better in teaching the touchstones of Western civilization. Western civilization supplied the foundation for many of these rights, and the idea that it has been reduced or marginalized is one of the great tragedies of higher education. You can teach non-Western civilization. It should be taught, and we can learn a lot from non-Western civilizations, but we don’t have to deny the impact of Western civilization on human rights, on individual rights, on defining who we are.

And so, I do think that universities need to go back to core curriculum on a number of issues, including Western civilization, but most importantly, we need to do a much better job in secondary education to teach these core values. For example, we don’t teach free speech in high schools. Most of what students learn about free speech is either trite, or it’s actually inaccurate. That is, they’re learning in a culture of intolerance, they’re learning that they don’t have free speech. That free speech is harmful. We need to address that, because that’s where new citizens are formed.

The EU and a New World Order: Their Digital Services Act 

Doug Monroe:

So you touched on this earlier, but how is EU’s call for a new world order? I loved that they actually said that. That, to me… How was that Orwellian?

Jonathan Turley:

Yeah, I just got back from Berlin at the World Forum, and there were two of us that were free speech advocates. And it was certainly the largest collection of anti-free speech groups and figures I’ve seen in years. And largely, they had gathered because of Vance’s Munich speech, which I supported. I believe that Vance is right. I mean, you had Kennedy go to Germany, to say that he’s a Berliner. And that was important, to tell people behind the Iron Curtain, that we all stand with you because we’re human beings like you. What Vance did is say, “I am an American, and as an American, I believe in free speech. And if you want to be defenders of democracy, then you have to stop limiting the speech of others. You have to fight for the things that we believed were the basis of this Western civilization, particularly free expression.”

That set people off. And it was clear, in Berlin. The greatest threat in my view, to free speech, I talk about in the book, is the EU and the Digital Services Act. The Digital Services Act is reflective of a lot of the laws in EU countries that allow the censorship for information that is disinformation, or mal information, or viewed as misinformation. Of course, the government defines all of those terms. Those are the same three categories the Biden administration said, publicly, they were targeting. Mal information is actually my favorite, because as defined by the Biden administration, mal information are facts, true statements, that are being used in a misleading way. So they were saying that they could censor people who were stating true things, but they were doing it in a way that the government viewed as misleading.

And you see that in the Digital Services Act, but it was no coincidence that when the Twitter files were released, after Musk had purchased Twitter, now X. One of the first things that Hillary Clinton did, and others, is they went to the EU and said, “Use the DSA to force Musk to censor American citizens.” It was an extraordinary moment. This is a former Democratic presidential candidate saying basically, “You can force the censorship of fellow citizens in the United States,” and the EU did exactly that. They warned Musk that he could be hit with confiscatory fines, even arrest. When Musk said he was going to interview Donald Trump, the head of their censorship efforts said, “We’re watching, and if you cross over, you could be facing consequences.” That is an interview of Elon Musk, an American citizen, with a candidate for the American presidency who ultimately won the presidency, being warned by the EU that “we’re watching.”

The fact is that the anti-free speech movement has been successful in Europe to a degree that I never would’ve thought possible. They have eviscerated free speech. You had one judge, by the way outside the EU in Britain, which is horrific on free speech, but they were horrific back at the Revolution. But in some ways they’ve gotten worse. And one judge upheld the conviction of some total loony tune. This older guy who was still living with his mom, and had a room filled with Nazi and KKK stuff. It was like a temple to hate. And they didn’t accuse him of distributing any of this material, they accused him of having it. And the judge said that, “I am convicting you because of your toxic ideology.” Well, that sounds a lot like a thought crime, and very few people in England seem to blink at that, they didn’t seem to have any concern about that. That’s how far we have come.

So as Americans, we have to choose a path. We’re at a crossroads. You can look to Europe to what that road and where it has taken them, or you can look at where we’ve been, and where we need to go. We’ve got to hold the line right now. We’re it. There are very few countries left that are supporting robust views of free speech. So this is it. Now, I happen to be optimistic, but it’s a dangerous pretense. It’s a dangerous illusion to believe that just because we’ve succeeded in the past, we’ll succeed now. We have never seen anything like the DSA. We’ve never seen anything like this anti-free speech movement. This is an existential threat. And free speech groups that I met with in Germany are on the ropes. Many of them have been investigated just for defending people who have been subject to free speech prosecutions. We need to make sure that that wave breaks on these shores.

Why the push for censorship in the EU?

Doug Monroe:

Two follow up questions, there. What is driving this? And my leading statement is, is it fear? Is it fear of a recurrence of Nazism, fascism, Stalinism, coming from the East? Is it the insurgence of Muslims everywhere, and the Great Migration in 2015, that Douglas Murray writes about. What are they afraid of? What is going on?

Jonathan Turley:

Well, the most insidious quality about the modern anti-free speech movement is how they cloak themselves in free speech. It’s a very odd thing. First of all, they don’t use censorship, they’ll use the terms like content moderation. And they won’t really be honest about what they’re doing. So in Berlin, they all talked about, you had a recent Nobel Prize winner who has been outspoken as a advocate for censorship. But what they do is, they simply say, “We have to stop the hate. We have to stop the lies. We have to stop the falsehoods. Democracy is in danger because the public is being lied to.” Well, how do you do that? I mean, the point is obvious. You do that by not letting them speak, by using the DSA. But they cloak it in this type of language.

One of my colleagues at my law school has led a movement to amend the First Amendment. She says that the First Amendment is aggressively individualistic, and we should change the language to balance against values like equity. Well, that view is popular. When my book came out, four anti-free speech books came out by law professors. One of them was a University of Michigan law professor who referred to the First Amendment as the Achilles heel of the United States. Not the thing that defines us, but the thing that threatens our very existence. So these are groups that are very clever. They use language that is uplifting, of protecting people against lies, and they don’t really explain how they’re going to do that. But it’s very obvious-

… don’t really explain how they’re going to do that, but it’s very obvious, because it’s been done in higher education. They have purged the ranks of dissenting views. It’s been done in Europe, where the DSA and national laws regularly now prosecute those with opposing views. You have people who’ve been prosecuted for silently praying, for a prayer in their heads, because they were near an abortion clinic. You have, in Germany, comedians who have been arrested. In Canada, comedians have been arrested. Jokes are now unlawful.

But there is also a sense of delusion. I spoke in Europe with a leading English comedian who was all in about we have to stop the prosecution of comedians. But then, in the middle of our event, he said, “But, of course, I make an exception for anything that could be insightful because,” he says, “we recently had a protest over immigration that were based on lies, and we can’t let that happen.” And I said, “Well, there’s the rub, isn’t it?”, When there were protests in England and it was based on lies, there were things on social media that were untrue about an immigrant that committed certain crimes, but it was another example of rage rhetoric becoming state rage. The government immediately tried to increase its already Draconian censorship system. It saw an opportunity. And this comedian, who was very sensitive to how comedians were being arrested, still said, “But, of course, we should arrest all those other people who are just inciting others,” and there’s a lack of self-reflection in those types of comments.

 U.S. Populism vs. EU Elitist Culture

Doug Monroe:

This question is about Europe in general. I’ve been over there a handful of times, but I’m no expert. I would say that even some of the Brits that I love so well, only one I can think of really understand America, and I think it’s because there’s still, after all these hundreds of years, an elitist nature, there’s an aristocratic nature there, and they do not understand how, in America, the ordinary average person is revered. And that’s why they don’t understand Trump populism at all. It’s not about Trump. It’s about regular people saying, “We’ve had enough.” Okay. Comment on that. Is there an elitist aristocracy thing over there?

Jonathan Turley:

There is. In the book, I talk about Rockwell, a particular painting, on free speech, and in some ways, you can see the division we have with Europe. Many Americans, including myself, are distinctly Rockwellian when we view our rights. We believe they’re not simple, they’re profound, but we believe the First Amendment means what it says. But there is this generation of connoisseurs, of constitutional connoisseurs, law professors, that say, “Ph, well it can’t be that simplistic. You have to interpret it. You have to really put it through our own view, our nuanced views, of when free speech can be tolerated.”

That’s very much in line with the European culture. They are a very elitist culture. There’s a reason why, in the Berlin World Forum, the two people honored were Bill and Hillary Clinton, who really fit their ideal of an American as people that support global governance, that support limiting free speech. And they never talk about who defines what’s disinformation or misinformation, they do, but it’s because they’re smarter. They’re the experts. That’s the whole premise of the EU was to transcend national politics, to force these common values to the surface, and it is now this massive bureaucracy of experts. It’s the same experts in many of our federal agencies.

And academics have a natural affinity to experts and agencies or the EU because they’re like us, they have advanced degrees, they think a lot about issues, but what the EU does is it puts them in control. And so it’s not surprising that, when they see free speech of critics of people that they think are wrong, they have to stop it because it’s a bad influence. It has what I call in the book bad tendencies, and so that’s their license.

The Bigger Threat: Far Right or Far Left? Both Miss the Majority 

Jonathan Turley:

Well, what the book talks about is that rage doesn’t belong to any particular ideology. We see it today on both the left and the right. I saw it in the coverage of the Trump trial, where you had all these groups that were divided actually down the middle, anti-Trump and pro-Trump groups, and they were just inches from each other and they would just scream at each other all day long. They never got tired of it. You could see how addictive it was, what the release was from the rage. These are the extreme voices in our society, and too often, we yield to them. We yield to them in two different ways. We yield to them, in many ways, by assuming they represent the rest of us, and we also yield to them by allowing the government to convert rage rhetoric into state rage and to assume greater control over what we say.

But the fact is that they are a minority. And elections like the most recent one were a shock to the system for many in the media. But I’ve talked to media groups in the past, and I’ve worked for the media for over 30 years as a columnist, as a television analyst, and I worked with many people in that room at CBS, NBC, BBC, Fox, and I said, “We’ve become a ship of fools. You don’t have a clue as to who these voters are, and I don’t think you really care. You stereotype them, but you don’t bother to figure them out. And you’re shocked every election when the majority turns out not the way that you’ve all been pushing under a narrative, the public rejects the narrative, and the public is rejecting mainstream media,” and you have the rise of new media, and yet many of these reporters are just happily on this deck of a ship of fools.

And a good example of that is when the Washington Post brought in an editor from England who dropped a truth bomb in the middle of the Washington Post, and this is a direct quote, he said, “No one’s reading your stuff.” He said, “We’ve lost $77 million in last year. We’ve lost half our readership. No one’s reading your stuff,” and the response of the reporters was to try to get him fired. They would rather fire him than deal with the fact that they’re writing for themselves. And so, when you look at these extremes, and I think the extremes did take over academia and media, yes, they are pushing us into these moments of rage. They’re pitting us against each other. But when you look at the American people, they’re far more moderate than that and I think that they’re far more reasonable than that. They are tuning out the media. They’re getting most of their information from new media, which is on the rise.

And, in some ways, that brings us back to where the book started because it is the media, to some degree, that we started with. People like Thomas Paine would be new media today. They were pamphleteers, and yes, they were raw and they had sharp elbows, but they were popular because no one was reading the mainstream media, which was largely echoing the party in power. We are having a repeat of that, but the saving grace of the United States has always been that middle. Americans tend to be moderate. They tend to get it. The problem is they’re not always given choices in this duopoly of two parties. Those candidates are picked by the most extreme elements of our political system, the hard left in the Democratic Party, the hard right in the Republican party, so that citizens often don’t have a choice. The candidates often don’t reflect where most Americans are. 

The Trump Administration and Campus Protestors: Free Speech vs. Conduct 

Doug Monroe:

As far as what do you think is going to happen with universities under the Trump administration with all these issues? You’re starting to see Columbia and Michigan’s changed and Carolina’s gotten … Where’s that going to go? This is your business. What’s going to happen?

Jonathan Turley:

I’ve been critical of some changes. I was critical of Columbia’s new rules, because it includes things like being suspended for signing what they called inflammatory petitions. Well, what does that mean to have an inflammatory petition? You don’t solve this problem by adopting language that will chill a wide range of issues. The fact is that students are allowed to support Palestine and we have to protect that right. What they’re not allowed to do is conduct. Going into the Hamilton building in Columbia and occupying it is conduct, trashing that building is conduct, assaulting a janitor is conduct. All of that can and should be subject to discipline.

I’ve said for years that this business about deplatforming and shouting down speakers is not free speech. I had a debate on this with a wonderful academic from NYU who believed that shouting down speakers was free speech. It’s not, it’s the antithesis of free speech, but most importantly, it’s the antithesis of higher education. If you go into an event and shout down a speaker, you should be suspended, because what you’re doing is you’re trying to prevent others from hearing views that you don’t like. That is the very demise of higher education. That is what got us where we are here today, where orthodoxy is now the rule on most campuses. We can deal with many of these issues by focusing on conduct and avoiding any discipline over content. Now, obviously, some content and conduct can cross the line, that’s the Brandenburg standard, but that’s fairly rare. We need to focus on the conduct aspect.

The Current Administration’s Executive vs. Judicial Branch Struggle 

Doug Monroe:

All right. It’s hard to relate this one to worldview, I can do it, but I won’t bore you with that. This whole executive versus judicial branch issue that you’re commenting on almost daily, Trump versus the district courts. What’s going to happen there? I love the way you’re commenting on it. I think you’re dead on. I’m asking more for what’s going to happen over the next year?

Jonathan Turley:

Well, as usual, rage is taking us in the wrong direction. You have some members that are calling for the impeachment of these federal judges, which I have written strongly against. This is not something for impeachment. These are differences of interpretation. The fact is the Trump administration is using a controversial law from the Adams administration period in an extremely novel way, and district courts have disagreed with the administration. There are good faith disagreements there and it’ll be worked out in the courts. You don’t impeach judges because they adopt different interpretations. I think these judges are wrong in many of these cases.

I think that some of the initial rulings on Doge and changes being made by the administration are manifestly wrong. I think that they are overextending themselves. In Article III, the president’s allowed to reduce government. The president’s allowed to look for fraud and waste. I think that these judges are way beyond their brief on this, and I think, ultimately, the administration’s likely to win on those cases. But that’s not uncommon. When Biden came in, he basically eradicated every one of the Trump executive orders. That is fairly common. And what happens is you have a sorting out. It goes through the courts. Presidents win some, usually most, and they lose some.

Now, where I think the administration has a particularly valid grievance is on national injunctions. The fact is that these district judges have gone injunction crazy, and this has been a complaint by both Democratic and Republican presidents. They view this as a type of Lilliputian attacks. You got over 600 district court judges issuing national injunctions. You do the math, you do the implications, you can’t run it. It’s like having a jumbo aircraft and every passenger wants to take the control. Someone has to land the plane, and in this case, the pilot is the president.

And it’s not just conservatives that have objected to this, not only Democratic presidents, but liberal justices. Justice Kagan recently said, “Look, this is insane. We can’t do this. We can’t have all these judges issuing national injunctions.” The Supreme Court has been largely spanking district court judges hoping they’ll get the message, they haven’t, and the number of national injunctions have increased despite their warnings. They’ve done all these shots across the bow. Now that Congress is looking at it, I think that there should be some changes, but I want to be cautious on this, that there are some cases where national injunctions are appropriate. If you’ve got a national class action, how are you going to limit that to the district? You have to allow for that.

What I would like to see is for national injunctions to be required to go to a three-judge panel, a separate panel from that judge, that are given very narrow guidelines of when this is appropriate, to have the approval of those judges, and then I would also fast-track it. Part of the problem for presidents is that temporary restraining orders are usually what are issued, TROs. Those generally go for two weeks. Many people believe that they are not subject to appellate review. There’s some debate about that. Two weeks is a lifetime for a president if that TRO is dealing with something of great national significance, and at the end of it, then maybe they have a preliminary injunction, which you can then appeal.

I think it’d be better to have a fast-track system to allow a president to get this immediately before a higher court. Those would go a long way in recognizing legitimate objections from presidents. It’s not that they’re right. It’s just that what they’re saying is, “Look, I have Article II powers and that requires me, of all of the branches, I’m required to move the fastest.” With Congress and the judiciary, all of the limitations are actually to get them to move slower. They’re all designed to force compromise and consideration and deliberation. It’s only Article II that is designed to operate fast, because a president needs to be able to react, and then often Congress has a chance to respond. I think that they do have a valid point here.

Doug Monroe:

There’s really so much that the founders could not have anticipated that needs revision, and this is one of the big areas. It’s almost like we need another constitutional convention to revise it like they did between, what, Articles of Confederation and the Constitution itself.

Optimistic or Pessimistic: Americans are Moderate in Majority 

Doug Monroe:

are you optimistic or pessimistic about America? What I really mean, as far as you’re concerned, is do you think we’re turning to reach more agreement as a nation or do you think we will continue to splinter. And almost on a state basis, you can start to pick them out. California wants to secede and whatever. What do you think? Do we respect law enough to stick with it, or what do you think?

Jonathan Turley:

I am optimistic. I think that, when you look at the election and the polls, the voters are not robotic. They rejected what I think was an overriding narrative by the media. They saw it for what it was, that this was advocacy journalism and they don’t like it and they don’t want it and they’re not listening to it, but they’re also not slavishly following any particular party. You see it in the polls. When Trump goes too far, you see it in the polls, and the elections show that. I think they’re more discerning, so I am optimistic.

I’m optimistic also about rights like free speech. There’s a natural optimism which comes from believing that free speech is a natural right in that, if free speech is in our DNA, if we’re hardwired, you can’t kill free speech without killing us. And history has shown that it has found its way out. I don’t think we can lose this fight because I think it’s a fight over who we are. But I also see hopeful things. When I had that debate at Harvard, on free speech at Harvard, the initial vote went heavily against me. It went favor of Harvard that they supported free speech and diversity. I was rather intimidated by it. And then, at the end of the debate, they had the second vote and it flipped, and over 60% of those students and faculty voted against Harvard.

I don’t think that’s because I’m any particularly great debater. I’m pretty confident of that, because I was up against someone who’s incredibly good and brilliant in many respects, I think it’s because they hadn’t really been exposed to a lot of these statistics and these arguments. You also saw that in some of the most anti-free speech countries. Ireland has been off the charts in anti-free speech legislation. But recently, too, I think to the surprise of many in Europe, they faced a setback that, after the riots in London, all of these countries moved to use that rage rhetoric for state rage to expand censorship. And the Irish law would’ve allowed prosecution for possessing material that was xenophobic or divisive, and it went down in flames.

But the interesting thing is it went down because of young people in Ireland, and it shocked many on the left. They’ve always assumed that they could get young people to give up free speech. That was the assumption of Meta when they had that creepy campaign to try to get young people to embrace content moderation. It didn’t work. It’s hard to get a free people to give up freedom. They moved the needle, but not enough. There are reasons to be optimistic. When people are given the facts about free speech or asked to think about it, they tend to come to the right decision.

I think that’s going to be the same politically. I think that Americans tend to be moderates, and they also have a refreshing sense of realism. They know when the media is being an advocate, they know when people are selling them a bill of goods, and they tend to vote that way. No, I think that, if you look at history, as bad as some of these periods have been, and in many ways, we’ve allowed rage to overwhelm reason, we’ve come back to reason. Those periods ended because of us. Yeah. The public saw Senator McCarthy for the first time in the Army-Navy hearings, and they didn’t like it, and on that day, McCarthyism died. Yeah, I am optimistic.

Would you ever join the Supreme Court? 

Doug Monroe:

That’s beautiful. My last question is, are you having too much fun to go on the Supreme Court? Huh?

Jonathan Turley:

I don’t think that you’ll see me on the Supreme Court. The age of Supreme Court nominees, first of all, is getting younger and younger. I think it’s more likely we’ll see our first fetal nominee in the years to come, because the age is getting younger and younger as people want to create a legacy. I have a lot of respect for people on the Court, I criticize them incessantly, but I always get quite defensive about people attacking the justices on the left and the right. I’ve had the honor to have spent time with all of them and I respect them all. I opposed a couple. I supported a couple. I testified at the confirmation hearing for Gorsuch, and I think he’s proven to be an absolutely wonderful justice, but they’re all trying to get it right.

And people convert what they do in strange ways. They say, “Oh, my God, look how they vote together on the right,” when they forget the people voting together on the left. There’s a reason for it. It’s not that they’re political. They have a strong jurisprudence, an ideology that comes through jurisprudence, that’s not political in a sense. It’s philosophical. And they’re consistent, so they should be voting together. But the demonization of justices is something that, again, is coming from the extremes of both parties. I think that most Americans understand that. That’s why, when the Democrats lined up in support of packing the court, the polls went the other way. The polls showed overwhelmingly the American people that were angry, many of them were angry with the Supreme Court, opposed packing the Supreme Court. And once again, that shows, I think, the genius of the American people that is usually greater than the experts we see in universities or in Europe.

Doug Monroe:

Exactly right. I’m afraid, my beloved professor, he doesn’t know this, but Harvey Wilkinson, a Fourth Circuit man, I think he might be the senior person there, but I had him as a very young, right out of law school, criminal procedure teacher, and he was just excellent. And I’m afraid he’s up there now, but there’s still hope right here.

Jonathan Turley:

There is hope.

Doug Monroe:

Okay, there’s hope, and it would be great. But thank you for this.

Jonathan Turley:

Thank you.

Doug Monroe:

It’s been really, really fun, and thank you.

Jonathan Turley:

It’s such a wonderful interview. Thank you so much, Doug.

Doug Monroe:

Thank you.

Jonathan Turley:

I appreciate it.

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