Personal Background, Holocaust-Surviving Father, Career in Civil Liberties

Doug Monroe:

So, I just thank you and want to welcome you here to the Praxis Circle interview.

Nadine Strossen:

Well, thank you. I’m delighted to be part of this really inspiring project.

Doug Monroe:

Well, worldview is a tough subject to get across, and so we’ll relate it to worldview as we go through a little bit here. So my first question is, I tried not to be too specific, but I did my homework on your background, but I suspect that your family background, going back a generation or two, is part of the reason you’re here. Is that wrong, as an expert in free speech, civil rights?

Nadine Strossen:

I think each individual picks and chooses elements from their family background that resonates with them. I have a sibling, a brother, who is not a human rights activist, who doesn’t share my values, has other passions that he relates to, other aspects of the family history. So a scientist might have a scientific answer to this, Doug. I think there was something in me that was always supportive of seeking of individual liberty.

And as I got older and learned about various aspects of my family background and learned in particular, that very close relatives, including both of my parents, had been deprived of very fundamental human rights simply because of who they were or what they believed, it became even more clear to me than ever that it would be a mission to try to make those free choices available to everybody regardless of identity and regardless of ideology.

Doug Monroe:

I know that family is important to you. It’s behind what you just said. And so we’re always trying to get a little info up front before we get to the stuff to try and figure out, well, where’s this person’s worldview?

Nadine Strossen:

I know. You asked me a rather abstract question. I’ll answer it very concretely. Very resonant with me is the fact that I only learned when I was a teenager. So it obviously hadn’t affected my earlier inclinations toward civil liberties. But when I was a teenager, my mother told me that my father was a Holocaust survivor. I had not known that. As is true of many survivors, he did not want to talk about it or indeed, I suspect even acknowledge it. And it was really quite shocking to me to learn. And as time has gone by, I keep learning more details about how horrifically he and other members of his family suffered. And I think a way that they tried to mute the impact of the suffering is to deny it. And psychologists would probably say, “That’s not healthy. It doesn’t work.” But I learned that my father who was born to a, as far as he knew, a Lutheran family, he was raised as a Lutheran in Germany.

It turned out that his mother was what under Hitler’s Nuremberg Laws was called a Jew of the second degree or a half Jew. My father was a Jew.

Doug Monroe:

Okay.

So I learned when I was a teenager that my father who had been raised as a Lutheran and was very devout in his Christianity, he celebrated Christmas and knew all the Christmas songs and loved all of the rituals. I learned that his family background on his mother’s side was Jewish. Her family, he was born in Germany in 1922. His mother’s parents had converted because even then it was so stigmatizing to be a Jew. So she was raised already as a Lutheran. She married my grandfather who was under Hitler’s vile racist Nuremberg Laws, an Aryan, and that was also very controversial.

He was pressured by, especially when the Nazis came to power to divorce her. To his credit, he refused to do that. His own sister who joined the Nazi party would never speak to her sister-in-Law, my grandmother who managed to survive the war in semi-hiding in Berlin, as was true for a number of Jews. My father had been anti-Hitler politically for that reason, even as a teenager, for that reason and also because of his mixed heritage. He was interned, imprisoned at the Buchenwald forced labor camp. Now, it wasn’t a death camp, but the Nazis strategy was to kill people through work. The phrase in German was [foreign language 00:16:07] literally to destroy through work, and he almost died through the backbreaking labor and the horrible malnutrition and diseases that were rampant. I also learned, again, I think I was in my 20s when my father disclosed to me that he had been scheduled for sterilization by the Nazis.

They had a program of eugenocide as well as genocide. And my father being a doubly undesirable, literally had a date for the sterilization procedure. And one day before it was to take place, he was liberated by the American military.

Doug Monroe:

Unbelievable.

Nadine Strossen:

I always am so grateful when I have the opportunity to speak to military audiences. I’ve spoken at all of the military academies. I believe that the work that they are doing, the service they provide is an essential bedrock for civil liberties for life itself as well as liberty. And I know that they all take an oath or affirmation to uphold the constitution, which is what I’ve been devoting my life to in a very different way. On my mother’s side, she came from an immigrant family from her mother, from Italy, her father, from what is now Croatia. They were very impoverished, but they were also to a certain extent, political and religious dissidents, particularly on my grandfather’s side.

That said, my grandfather, everybody has blind spots. My grandfather was very discriminatory when it came to his views about women. And he was very rigid in not allowing my mother to pursue higher education and dictating to her that she had to get married and have children. So I saw a woman who was brilliant and ambitious, but her ambitions had been thwarted because of her gender. My father, when he came to this country as a refugee, had to do what he had to do to earn a living and actually send some money back to Germany for his remaining relatives who had not been killed there. So both of them were deprived of basic freedoms of choice, and I never take for granted for one second that they and this country have provided me with the incredible luxury of liberty and including a liberty to pursue my interests and my professional ambitions.

Doug Monroe:

Well, what I’m hearing is in a way beautiful typical Americans and-

Nadine Strossen:

When I first met my-

Doug Monroe:

I’m going to have a hard time with that too.

Nadine Strossen:

When I first met my husband, he said, “So what’s your family background?” And I said, “Well, on my mother’s side, Italian Catholic married to a Croatian who was excommunicated from the Catholic Church” very proud of that. He was a Marxist. “And on my father’s side, ‘Aryan German Lutheran’ married to a Jew.” And my husband looked at me and he said, “In other words, you’re a typical American all mixed up.”

Doug Monroe:

Yeah, all mixed up.

Nadine Strossen:

And I love that. I love that about our country.

Doug Monroe:

I know I had Jewish blood and I know anything passed this generation is. But what you speak of is so beautiful because for example, I think of my similar grandparents, they had nothing like that of course, but they were typical depression era people who don’t brag about anything. They don’t even want to talk about what they’ve accomplished or experienced. They’re tough. They knew people that fought in the Civil War.

I mean, come on. That’s how far back we go with just one or two generations where all of a sudden 100, 150 years back.

Passion for Underdogs (Rights Activism) & Female Pioneer at Harvard Law

Nadine Strossen:

It was actually a Harvard degree. Radcliffe had merged with Harvard educationally during World War II. Although I will say this, Radcliffe still had separate admissions. So there were every year Harvard admitted 1200 men and Radcliffe admitted 300 women. So who was the more selective? Who was the more outstanding?

Doug Monroe:

Yeah, no, I get that. And anybody of your generation prior, we know any woman in those, there wasn’t just one or two schools. They’re smart as anyone over here, right? So that’s just the way it was. And that was true in Virginia too. But so when did, I thought I heard you say in Chapel Hill that there were some activism somewhere that I don’t really see on a standard legal scholars resume. Where was that? Where did it hit early on?

Nadine Strossen:

I became active I would say in grade school. I started writing letters to the editor and letters to my United States senator who was Hubert H. Humphrey, whom I still greatly admire. He was a big pioneer in civil rights among other important issues. And by the time I got to what was then called junior high school, now it’s called middle school as a preteen, I was involved in speaking out against efforts to suppress free speech and academic freedom on the part of some teachers. By high school, there was actually an effort too by the local newspaper calling for the firing or some disciplinary action against a social studies teacher who had showed us, I was 15 years old at the time. The war in Vietnam was fairly popular, was quite very popular, fairly new.

Doug Monroe:

Yeah, you were right in the heart of that and that was so big.

Nadine Strossen:

And a lot of people had relatives who were off fighting there. And it was seen as very unpatriotic and disrespectful to individuals to even question what the United States was doing over there. And this teacher was not indoctrinating us. I recognize now that it was an excellent form of teaching. He simply showed us slides of some images of civilian casualties and other impacts of the United States war effort. No narration at all, just the pictures. And that itself was so controversial that, as I say, the local newspaper editorialized for his removal.

Doug Monroe:

Especially early on.

Nadine Strossen:

So I wrote a letter to the editor of the paper. I started a petition drive among my fellow students to support the teacher. And I do remember that was one of a number of such efforts. I remember one of my teachers saying to me, “Oh, Nadine, why are you always standing up for the underdog?” And she that as if it was a criticism. And I thought, “No, I’m proud of that.” And I hadn’t articulated it to myself yet, Doug. But now I understand. It’s of course the underdog that needs the advocacy. Just the way it’s the unpopular or the controversial or the dissonant speech that needs to be defended.

Doug Monroe:

Yeah, hello. So you love the underdog early on in life and for reasons you probably didn’t even appreciate. The other thing is you’ve got such a quick brain that you get it quickly, and so when you figure out things faster, it leads you down certain pathways faster. So without a whole lot of elaboration, not that you have been, what was it like being a woman at Harvard at that time?

Nadine Strossen:

So I had seven years of higher education at Harvard, four undergraduate and three at the law school. And in the entire experience, I had only one female instructor that was at the college and she had just started. So she was an assistant professor with no tenure. At the law school, I had zero female instructors. At the undergraduate level, there was a fixed ratio of four males to every female. At the law school, there wasn’t a fixed ratio but very few women were admitted. So only 10% of my classmates were female.

We were distinct minorities. And I do think that sadly, that had somewhat of a chilling impact on my ability or willingness to speak up. People who know me now are surprised about that. But I wasn’t surprised to see somebody like Hillary Clinton emerge from Wellesley and other women who emerged from single sex, all-women schools with more leadership and more self-confidence than many of us were able to develop in an overwhelmingly male environment. Now that said, Doug, everywhere I speak to this day, even though there are so many female faculty members, and at most institutions, women students are a majority now.

Doug Monroe:

That far.

Nadine Strossen:

And yet who asks the questions? Who makes the comments during public events and even during classes? It’s overwhelmingly the man. And I find that so mystifying and so frustrating. So it’s not lack of role models, it’s not being a distinct minority. There’s something else and if this is anecdotal, I don’t have any scientific evidence but I’m constantly comparing notes everywhere I speak with women, faculty members and students, and they observe the same pattern.

ACLU President (1991 – 2008) and Landmark “Communications Decency” Ruling

Nadine Strossen:

The ACLU has always been a very contentious disputation organization as one would expect for a group of civil libertarians. When I was elected president, and it was very contested election, the New York Times did one of those person in the news profiles, and the poll quote they had under my photograph was a somewhat corny but completely true line. When I had said in my speech to the national board of directors, which had elected me, “I want to emphasize the American in American Civil Liberties Union.” And my husband who had been to many of these ACLU National Board debates with all of the arguing and screaming and points of order and points of procedure, and never a unanimous vote, always very, very fractured. He looked at that quote and he said, “I wish you would emphasize the civil in American Civil Liberties Union.”

But I love those debates because, and in retrospect, given how hard it has become to debate issues where people feel strongly because of the sensitivity and the concern about being accused of being some kind of an ist or some kind of an O, we didn’t have those constraints. We shared basic commitments. We felt very strongly about them. And maybe to the outside world, our differences might seem like debating angels on the head of a pin.

But you know, the more strongly you care about something, the more seriously you take even seemingly minute differences. But we made decisions and we got along very well as individuals, despite our disagreements. Now substantively, I would say the single greatest source of pride and interest to me, looking back, was the advent of the internet, which burst upon the public and political and press radar screen in the early 90s. Obviously, scientists had known about it before, but it didn’t become well known to the public until the early 90s, at which point it was greeted the way all new media are throughout history with suspicion and fear, and let’s censor that because it’s so much dangerous information and misinformation can get out there to children and other vulnerable people.

And the way Congress greeted it was to sweep through a law called the Communications Decency Act. Almost nobody voted against it on either side of the aisle. It was supported by the Clinton administration. The ACLU challenged that law, and thank goodness for the United States Supreme Court, nine to zero struck down the law under the First Amendment. The internet-

Doug Monroe:

Unbelievable.

Nadine Strossen:

Landmark case. The first-

Doug Monroe:

I’ve forgotten that.

Nadine Strossen:

I was very involved in…

Nadine Strossen:

Case, the first.

Doug Monroe:

I’ve forgotten that.

Nadine Strossen:

I was very involved in the litigation.

Doug Monroe:

I was working on banking work at that point. Wow.

Nadine Strossen:

We would’ve lived in a completely different world, Doug, if that law had been upheld. So first of all, I’m very proud that the Supreme Court’s first decision about the Constitution in cyberspace has gone down in history as Janet Reno was Bill Clinton’s Attorney General versus ACLU. And the Communications Decency Act would have outlawed any online expression that was, these were the terms in the Law, indecent or patently offensive. Now just think how subjective those terms are and the list of who our clients were is a list of what speech would’ve been suppressed, including the ACLU itself. Because a lot of our material–

Doug Monroe:

80% of speech today would be suppressed.

Nadine Strossen:

Exactly, I mean, we also represented mainstream booksellers associations and publishers and magazines and periodicals, but human rights organizations and LGBTQ rights publications. So it would’ve been dumbed down to the way broadcast television is now. And I find it’s hard for my students to understand this because they don’t understand that how something is transmitted is relevant to what speech is protected and to this day–

Doug Monroe:

The also have nothing to compare it to from their own experience.

Nadine Strossen:

Yeah. So the patently offensive and indecent ban does apply to over-the-air broadcast radio and television. And to this day, when I do interviews on those media, I can’t cite and quote one of the Supreme Court’s most important First Amendment decisions, which also came out of the Vietnam era, upholding the right of a college student to wear a jacket saying, “Fuck the draft.” The F-word would not only get me bleeped, but would get the station in trouble, in danger of being fined or even losing its broadcast license. And that would’ve happened to the internet.

Has the ACLU changed? Softening on Freedom of Speech

Nadine Strossen:

The ACLU is a very complex organization, has got several national offices and it’s got state-based affiliates all over the country and a little-

Doug Monroe:

Far, it’s grown quite a bit.

Nadine Strossen:

A little bit like the federalist structure of the US government that states affiliates can disagree with each other and disagree with the national. And that’s happened, kind of let a million flowers bloom, if you will, as long as there’s a plausible civil liberties rationale. We’ve had cases where there’s been one ACLU in the Supreme Court, one ACLU entity on one side of the case and another on the other.

So in that sense, I’m saying it’s hard to generalize. But I will make a generalization that includes not only the ACLU, Doug, but a whole host of public interest organizations including human rights organizations and a whole host of institutions that traditionally have been very strongly supportive of free speech, have become less so not throughout the organization, but among the younger ranks. This is definitely an age-based differentiation.

And we saw that starting with academia, I would say the deflection of traditional commitment to free speech on campuses began several decades ago with younger faculty members and students.

Doug Monroe:

That’s fascinating.

Nadine Strossen:

We’ve seen the same pattern in journalism, in publishing, in cultural institutions, in library professionals, younger librarians are saying, “Why should we have Mein Kampf and other hateful books on our shelves?”

Doug Monroe:

I know.

Nadine Strossen:

And the same thing has happened with human rights and civil liberties organizations. So the senior staff and leadership, when I say senior, I mean in terms of age, are very supportive of and enthusiastic about supporting freedom for the thought that we hate. But they’re getting more and more pushback from lower, younger cohorts.

Doug Monroe:

Okay, fascinating. Well, it seems like what you’re saying is the ACLU has become truth-seeking in that they even represent both sides of an issue, depending on what people’s, and ultimately that’s what you try to get to and we’ll get to that.

What is your worlview? No labels … but a Classic “Liberaltarian”?

Nadine Strossen:

Well, first of all, I really don’t like labels because of something that you alluded to earlier, that each person is an individual and so complex and so multifaceted. I consider politically I’m an independent. I resist having to register with a party, which I sometimes do in order to be eligible to vote.

Doug Monroe:

You’re a member of the biggest party there is now.

Nadine Strossen:

That’s true.

Doug Monroe:

Independent.

Nadine Strossen:

That’s true.

Doug Monroe:

Sorry, go ahead.

Nadine Strossen:

That’s true. I mean, no thinking person could possibly agree with even a substantial percentage of a platform. And by the way, that’s true for the ACLU as well, given how many positions we take on so many issues, no thinking person could possibly agree with all of them. And I used to say if you agree with 80% of our positions, you should be a member. If you agree with 50%, you should be a leader, in the sense that the more you think about these issues, the harder they become.

In terms of ideology, the word that I heard somebody use that really captured my imagination as, okay, if I have to have a label, that’s a pretty good one. And it was liberaltarian, I first heard it used by Nick Gillespie, who is the editor-in-chief of Reason Magazine and Reason has quite a few liberal libertarians, so you can be libertarian and yet have policy views that span the ideological spectrum.

Doug Monroe:

Definitely.

Nadine Strossen:

The other term that I think is quite apt is classical liberal. I mean, being really committed to those classical enlightenment values, including freedom of speech and thought.

Thoughts about the supernatural?

Doug Monroe:

Your thoughts about the supernatural, if you ever share them with people or anything?

Nadine Strossen:

I do. I’ve been an atheist as far back as I can remember. I do remember that the communications, media relations director of the ACLU when I first became president said, “Nadine, I wish you wouldn’t describe yourself publicly as an atheist and who never wanted children,” which is, at that time, Doug, I think both positions were much less common or much less commonly voiced than they have become. Until a few years ago, I had never even heard the phrase childless by choice, and to be-

Doug Monroe:

I have, not until recently, in the last few years.

Nadine Strossen:

And to be an atheist made you so suspect, again, all across the ideological spectrum. But that has become much more common, although I understand that a little bit analogous to politics where people will have some sense of spirituality but not be affiliated with a particular church. I wrestled with those issues when I was a teenager because I was deeply in love, the first love of my life, who’s still a very dear friend who lives in North Carolina, so I’m very happy to go there. And he was a very devout Christian. His family, his parents were both very devout Christians and they did, banned him from dating me unless I would become a Christian.

Doug Monroe:

Really? Wow.

Nadine Strossen:

And he was allowed to take me to Youth for Christ rallies and to church services. They were Baptists. And I went to both, and I really, really tried to believe because I mean, they were inspiring. They were in many ways, decent people. I loved him. I wanted to be able to spend time with him, but it just didn’t take.

Doug Monroe:

Yeah, yeah. Well, just on the term itself, I don’t like the word atheist because just what you said, I tend to refer to it as a naturalist maybe, or something, I don’t know.

Nadine Strossen:

Secular humanist?

Doug Monroe:

Yes, yes, exactly. Or human secularism, whatever. And the other thing is, and [inaudible 00:41:23] points this out, he’s gotten very articulate about this. You can be spiritual without believing in the supernatural or God, or-

Nadine Strossen:

Yeah, and you’re absolutely right. The terminology. Sometimes I think maybe one has a simplistic concept of what it means to believe in divinity. When my parents sent my brother and me to Unitarian Universalist Sunday School because they wanted us to have some background in religious type concepts, and I remember the Unitarians were excellent about reverence for a life. I remember the major hymn was For the Beauty of the Earth, I mean, we’re never taking for granted. And that somehow it’s miraculous if you’re just—

Doug Monroe:

There’s a lot going on, right?

Nadine Strossen:

Yeah.

Doug Monroe:

There’s a lot going on. And having interviewed all these people now and seen, and we do interview all different types. We focus maybe 40% in one core area, whatever that is. But I mean, take Bart Ehrman for example. He’s a well-known professor at Carolina. I actually am a Virginian living in Richmond, and I went to both schools for four years. But I mean, he’ll tell you I was a fundamentalist Christian, you probably know this, for well into my probably, 30s and I was teaching and I taught a class on evil for 10 years, and I basically talked myself out of it.

And so we all have our own journey. The other thing, I think that whatever the spiritual thing is, it can be like being a great basketball player or not. I’ll never be Michael Jordan, and there are natural abilities we have and they lend us to certain places. And so it’s all an individual journey like that. So I really appreciate you being straight in your straight talk, and I think that goes a long way. All right, let’s go to free speech. Here’s that dreaded question.

Nadine Strossen:

May I say something, Doug, which it should go without saying, but it doesn’t, there are a lot of intellectuals who look down on people of faith.

Doug Monroe:

Right.

Nadine Strossen:

And think that you must be benighted and Robbie George has actually talked to me about this when I’ve asked him, “Wouldn’t a student who knows that a faculty member has certain views about race extracurricularly, might they not feel that there’s an implicit bias in the classroom?” He said, “No. I know all of my professors thought that there’s something benighted about somebody who’s a devout Christian, but I did not hesitate to take their classes.”

The History of Free Speech Before and After the First Amendment 

Nadine Strossen:

Well, the book has already been written by a good friend and colleague of mine named Jacob Mchangama, who along with me, is a senior fellow with FIRE, the Foundation for Individual Rights and Expression. And in 2018, he published a book called Freedom of Speech: A Global History from Socrates to Social Media. And basically what that history showed-

Doug Monroe:

I got to get that.

Nadine Strossen:

… in the requisite nutshell, is that in every era, in every area of the world, under every form of government and society, there was a desire on the part of individuals to express themselves and have the freedom of self-expression and communication and receiving information and ideas, exchanging information and ideas.

And in every society, in every era, in every part of the world, there have been counter forces that have seen it as dangerous to allow individuals to have freedom of speech. And it wasn’t until the 18th century and in the wake of the Enlightenment, the American Revolution, the French Revolution, that we started having constitutional guarantees of freedom of speech, and that was a real game changer.

Doug Monroe:

You mentioned the French Revolution, I cannot on this particular subject, I think I know my history well, but did it come through the UK as they looked at the French Revolution? Had it had already boiled up in the English common law prior to that?

Nadine Strossen:

There were some-

Doug Monroe:

Because they say they don’t have a constitution.

Nadine Strossen:

Exactly. So there were some common law decisions that were very protective of free speech, but the entrenched guarantee that cannot be swept aside by a legislative majority, that requires some constitutional type protection. And that first occurred in one or two state constitutions, Virginia being the very first one, the Virginia Declaration of Rights and Freedoms.

Doug Monroe:

Jefferson thing.

Nadine Strossen:

Exactly. And then followed by the US Constitution.

Doug Monroe:

Yeah. I don’t think people, even people that think they know a lot, like me, they don’t realize how ahead of the curve Jefferson really was in some of the things he did.

Nadine Strossen:

But if I can say something else, Doug, that it’s one thing to have a guarantee on, as Madison said, a mere parchment barrier against actual government abuses. It’s another thing to really exercise that right as a meaningful reality. And that did not occur until the second half of the 20th century, even with our free speech guarantee on paper, we did not really enjoy it for the vast majority of the history of this country.

So in the second, most people know, Martin Luther King wrote this historic letter from a Birmingham jail. Most people have no idea what he was in jail for and are shocked to learn it was for-

Doug Monroe:

Speech.

Nadine Strossen:

Trying to exercise what we now consider the most important speech in the democratic republic. The right to criticize your government and to advocate for change through peaceful protest.

Why is free speech integral to human life?

Nadine Strossen:

Free speech is important to every single aspect of individual life and communal life. In order to be able to understand yourself, to engage in self-exploration, to define your sense of identity, to discover what values are important to you, and to pursue those values, you can’t do it without freedom of speech and freedom of thought, which are integrally interrelated. Justice Anthony Kennedy, a conservative Republican on the Supreme Court until recently, who was a great advocate of free speech, in an important decision, he said, “Human freedom begins with freedom of thought and freedom of thought begins with freedom of speech.”

Now sometimes, when I first read that, I thought, isn’t that the other way around? Don’t you have to have a thought first before you can express it? But it’s also true that in the process of writing and speaking, you explore and articulate your thoughts. So just in terms of being an individual, discovering who you are and conveying who you are to yourself, self-expression depends on freedom of speech.

But if we’re going to have any contact with others, from the most intimate relationship to becoming members of organizations or groups of any kind, from religious organizations to political organizations and anything else, we need freedom of speech to pursue truth in any domain, whether it be scientific truth or religious or philosophical truth. We need to have freedom of speech to express ourselves and to exchange ideas and information with others.

And certainly, for a democratic republic as we have, it could not survive without the ability of, “We the people,” to quote the opening words of the Constitution, to wield our sovereign power, we need to be able to have the most vigorous freedom to express our ideas, to exchange ideas with those who seek to represent us, to hold them accountable to us, to debate and criticize and dissent from their policies.

Doug Monroe:

Exactly. Isn’t that beautiful? You see where this fits in to what we were talking about yesterday, even to the point of I was sitting with a medieval philosopher scholar, and we got into a little bit the chicken or egg [inaudible 00:51:36] mention of thought versus language. And it is a chicken or the egg problem, and we’ll just leave that aside. But the point is, you’ve got to have free of speech and you stated it beautifully.

What does “speech” mean in the U.S. Constitution? Broad, Not Absolute

Nadine Strossen:

Speech is any expression through words or images or symbols. And it doesn’t have to even convey an articulable idea. It can be a matter of self-expression. And fortunately, the US Supreme Court has long recognized that there should be no value judgment, no requirement that speech has to convey an articulable idea, let alone a valuable idea. Otherwise, we wouldn’t have abstract art and contemporary music and other types of what I think most people would recognize have expressive content, even if you can’t paraphrase a particular message.

Doug Monroe:

So it’s anything in the outside world that conveys a message to the seer or hearer?

Nadine Strossen:

Or to the individual who’s engaging in the expression. It can be a matter of self-expression as well.

Doug Monroe:

Okay, gotcha. Okay. So it’s very broad, and yet, as you pointed out to me in the hall down in Chapel Hill, not all speech is protected by federal. And that’s something I don’t think really people understand at all.

Nadine Strossen:

I think that’s a very good point.

Doug Monroe:

And THEN you really have to expand on that.

Nadine Strossen:

Thank you so much for-

Doug Monroe:

To get people up the learning curve.

Nadine Strossen:

Yes. So to say that we have a very broad concept of what is expression that would be considered speech in the language of the First Amendment. Congress shall make no law abridging the freedom of speech or of the press. Now, let me pause since we’re talking about words. Congress has been universally construed by Supreme Court Justices as meaning not only the national legislature, but also any government agency, any government official at federal, state, and local levels of government.

So essentially, Congress has been interpreted as meaning government shall make no law. Again, that phrase also has been interpreted in a more expansive way than its literal language. Not just making a law in the sense of enacting a statute, but basically take any official action. So a judge couldn’t issue a contempt order or a president could not issue an executive decree abridging the freedom of speech. And notice that abridging is not as strong as prohibiting. The Free Exercise Clause of the First Amendment outlaws laws that prohibit the free exercise of religion. You look at the contrast and it seems that there was greater concern to rein in even restrictive measures or regulations that had a suppressive limiting effect on speech, even if not an absolute prohibition.

And so then we get to the word speech, and that has been construed very broadly, but not every government action that has some suppressive impact will be deemed to be an abridgment of the freedom of speech. So to say that something is speech means that you have to analyze whether a restriction on it violates the First Amendment, but a restriction will not necessarily violate the First Amendment. That depends on whether the justification for the particular restriction is sufficient in the particular circumstances. And that in turn, depends on a series of tests that the Supreme Court has crafted over many, many decisions and many years.

Doug Monroe:

So one thing you get is the founders truly were incredible wordsmithers and worked hard on the language. And so it generally, in almost every case, meant something very, very specific.

Nadine Strossen:

Or if I can amend that slightly or amplify on it, Doug, they used very specific language when they had a specific concept, but when they were trying to embody a general open-textured concept, they used general open-textured language.

Doug Monroe:

True.

Nadine Strossen:

And so to use the word freedom and speech, these are open-textured concepts that reflect an intent for interpretation to be able to evolve.

Doug Monroe:

Correct. And not only that, if you think of words like say, Congress, which does have a particular meaning, and if I’m a strict constructionist or a heritage guy, I could say, well, you’d meant Congress. But really from a policy standpoint, if you had restricted that just to Congress versus the Senate or the President, that would’ve become really one of the weakest branches of government because ultimately, the other branches of government would’ve become more powerful because they can restrict speech and they would do it, and there would be little old Congress sitting there being able to do nothing.

Nadine Strossen:

Right.

Doug Monroe:

So it has to be broadly interpreted to be effective at all. And I think that’s been the sort of presumption, correct?

Nadine Strossen:

It is.

Doug Monroe:

That has been.

Nadine Strossen:

But from the beginning and to this day, even the strongest free speech champion, including all justices on the Supreme Court, who are generally very speech-supportive, recognize that it is not absolute. Now, a former Supreme Court justice who was thought to be a very strong defender of free speech, Hugo Black, used to say, “Well, the First Amendment says Congress-

Doug Monroe:

AE Dick Howard’s man, by the way. Keep going.

Nadine Strossen:

“Congress shall make no law abridging the freedom of speech.” And he would say, “No law means no law.” But he himself did not interpret the provision as being absolute because he interpreted speech narrowly, unlike other justices, he said, “Wearing a black armband isn’t speech.” So you can interpret different words in that phrase flexibly. But the common upshot is that not every expression is constitutionally protected.

Doug Monroe:

Right. What about the, this is not, I don’t believe, in the Constitution. I remember taking constitutional law and getting to free speech after all the other stuff, and you think, oh, well, this is going to be easy because look, it’s only about five words.

Nadine Strossen:

Every single word is subject to debate.

Doug Monroe:

Every single word has a whole realm of law.

Is there a hierarchy of speech in the Constitution?

Doug Monroe:

But I asked you if it was political speech, and that was kind of a fundamental that stuck in my head. It’s not private sector, isn’t there a hierarchy of speech?

Nadine Strossen:

The Supreme Court in the past, has created a hierarchy and said that speech about certain subjects is especially important, and therefore, we should be especially suspicious of restrictions on that kind of speech. And the court traditionally has said that political speech, which it defines more broadly than just the way we would use the term political in everyday language. It’s not only directly related to politics, but it’s speech about any matter of public policy, is especially important in a democratic republic. And one statement the court made was speech about public matters is more than self-expression. It is the essence of self-government.

So it’s still a factor that would weigh in favor of protecting speech that has got a public policy dimension. But that turns out to be a rather unworkable distinction, Doug, for this reason that at the lower end of the hierarchy that the Supreme Court has created is sexual expression, which traditionally, has been treated as a stepchild of the First Amendment. And yet think about all of the types of sexual expression that involve very pressing matters of public policy, from abortion to gender issues-

Doug Monroe:

Good point.

Nadine Strossen:

… to sexual harassment.

Doug Monroe:

I don’t think about it all that much.

Nadine Strossen:

It’s an artificial distinction.

Doug Monroe:

Being a man, maybe, I don’t think about that.

Nadine Strossen:

And so what’s happened is that in recent decades, the court has pretty much abandoned those former hierarchies and across the board become more and more speech-protective of speech about every topic. And there’s only one isolated exception that has become more and more anomalous when you see how speech-protective the rest of the jurisprudence has become. And that is the so-called obscenity exception, which the court created in 1957, revisited in 1973, upheld the exception by the narrowest five to four vote, and has never since returned to the issue.

Meantime, all these decades later, it’s become more and more speech-protective about types of expression that formerly were not protected, including so-called commercial speech and extremist speech and terrorist speech, but it’s never gone back to revisit that obscenity exception, which becomes more and more of an outlier that doesn’t make any sense in light of the rest of their jurisprudence.

Doug Monroe:

Well, maybe they’re just not enforcing it and they have better things to do.

Nadine Strossen:

I think that that’s what’s happened because one of the elements of the obscenity exception is that it has to be… For material to be deemed to be obscene and therefore excluded from First Amendment protection, it has to be judged by contemporary community standards to be patently offensive among other requirements, and I’ve read that as we’ve become increasingly tolerant, as media have exposed us to more and more varieties of expression, including sexual expression, it’s become increasingly impossible for prosecutors to get juries to convict even in parts of the country that used to be quite conservative, such as Utah.

The Greatest Threat to Free Speech (in “Ordered Liberty”): Anarchy

Nadine Strossen:

Yes. As I said earlier, I am so supportive of the U.S. military and law enforcement, not only because of my own personal history. My father was imprisoned in the Buchenwald forced labor camp in Germany where he had been born as a half-Jew and was liberated by the American military. So I literally owe my life as well as my liberty to the military, but it goes way beyond my personal experience in that regard. Let me share one other personal illustration of this crucial role that basic law and order provides as a prerequisite for liberty as well as life. Before I became ACLU president, I was very active in Human Rights Watch, an international human rights organization based here in New York, and I used to do missions all over the world on behalf of that organization to very repressive countries.

I was in countries that were military dictatorships, that were under martial law, communist dictatorships, oppressive regimes from left to right, and the experience where I felt the least free and the most fearful and the most vulnerable was in a country that was in a state of anarchy. That was the greatest endangerment to every freedom and every sense of human possibility for human flourishing. It was in Haiti during one of, sadly, many periods when Haiti has been in a state of anarchy. So that really drove home to me that ordered… Ordered liberty is a phrase that our founders have used, and I think that one really cannot have liberty without some order. On the other hand, liberty has to be a constraint on order as it’s true for so much in our constitution. It’s a delicate balance.

Doug Monroe:

It really is. One of the Praxis Circle founders is extremely articulate about freedom. Os Guinness. I don’t know if you’re familiar, you may not be familiar, you know the Guinness beer? That’s his family.

Nadine Strossen:

Oh.

Doug Monroe:

His mom and dad were missionaries to China and he barely got out when Mao was taking over the Rape of Nanjing and all that. It’s a fascinating story that somebody so wealthy could devote their lives to this. But he talks about freedom and I can give you a good Praxis Circle clip that I think sums it up pretty well.

Nadine Strossen – How has free speech advocacy changed since the 60s?

Nadine Strossen:

I’m going to be a little bit contrarian, Doug, because this is a battle that I have been fighting throughout my adult lifetime starting when I was… I talked about being a campus or a student activist when I was younger, but it continued when I was in college during the Vietnam era protests, and I was very anti-war. That began even when I was still in high school-

Doug Monroe:

Sure. And by the way, on anti-war, the difference between you and me of five years makes all the difference in the world in the attitude toward the war, where women were. By the time I came along five years later, even in a boy’s high school, we had women teaching all over the place where we didn’t five years prior.

Nadine Strossen:

Yeah, I think that’s right.

Doug Monroe:

You were on the front end of a wave that-

Nadine Strossen:

Yeah, you’re exactly right.

Doug Monroe:

… that really happened pretty darn quickly.

Nadine Strossen:

Yes, it did.

Doug Monroe:

Sorry to interrupt.

Nadine Strossen:

No. No, you’re exactly right. And I won’t take us down the… But I can give you other examples that would illustrate that certainly on women’s issues, there was a crucial breaking point between ’71 and ’72. That’s been documented in many ways. So I was strongly opposed to the war in Vietnam and I spoke out against it, even starting when I was in high school. I would do speeches and debates all over the Twin Cities and beyond, and my first political experience was campaigning for Eugene McCarthy, who was then a United States Senator for Minnesota who was campaigning for the presidential nomination as an anti-war candidate even before Bobby Kennedy started doing that. But I also, or I should say and I also defended freedom of speech for people who had different perspectives, and that was a very unpopular position on my campus at the time.

Today, the students and faculty on the left end of the political spectrum call themselves progressives. In those days, they used the term radical and in both contexts, the word liberal, which is how I’ve basically always described myself, has been looked down upon by those to the left that we’re somehow wishy-washy and bourgeois, and I took a lot of heat from students in SDS, Students for Democratic Society, and all kinds of organizations on the left who were definitely in the ascendancy on my campus, if not in numbers, in terms of influence and noise and impact, because they did… I thought that they were wrong in what we would now call deplatforming speakers from the government, from the military, from the defense industry. I was standing up for freedom of speech for views contrary to my own, and it was as unpopular then on campus as it is now.

And in between, we had the advent of hate speech codes on campus. That was an idea that materialized in their early ‘80s and gathered a lot of steam into the early ‘90s. I was always opposed to that. I wrote law review articles about how they were unconstitutional. I did many debates. FIRE was founded originally as the Foundation for Individual Rights in Education in 1999. I immediately became a member of the Board of Advisors of FIRE-

Doug Monroe:

I didn’t realize it was that old.

Nadine Strossen:

… even though I was ACLU president. It was clear. And the ACLU had brought the first two cases challenging successfully the first two campus hate speech codes, but it was clear that they were proliferating around the country. Anyway. We couldn’t handle all of that work, so it was wonderful that there was a new organization… I mean, it was terrible that it needed to be formed, but wonderful that it was there to provide the resources to take on these cases on a campus-by-campus basis. So to me, it’s been more or less a steady fight.

What is the recent trend in free speech? Its influence on you?

Nadine Strossen:

So I think the way things have changed recently, Doug, is what I alluded to earlier. The general public has always been skeptical about free speech. Many of us for many decades have used the phrase that most people believe in freedom of speech for me, but not for thee. That’s just part of human nature. But what has changed in the quite recent past is that important institutions that traditionally had been especially committed to preserving and exercising and defending free speech have abandoned that commitment, or are eroding in that commitment mostly because of decreasing support on the part of the younger members of those institutions. And again, academia, journalism, publishing, on and on and on. And that’s kind of worrying. Surveys are constantly being done by organizations including FIRE and Heterodox Academy, Pew, others, which consistently show that the older you go by decade, the more support there is for traditional free speech principles, including, “For this speech that we hate,” to quote Oliver Wendell Holmes.

And recognizing that and seeing myself primarily as an educator, and believing that the more people understand about what the importance of free speech, the logic of the principles of free speech that the Supreme Court has crafted over decades, the tragedy that occurs when we don’t have free speech, the more support there is for it. And that’s why I took emeritus status from teaching at the end of 2019. I loved full-time teaching as a law professor. I got excellent student evaluations. In fact, from the very last year that I taught, I won the outstanding teaching award for my law school, but I just decided that I have to educate on this particular topic far beyond my own campus and I didn’t have time to teach other aspects of constitutional law. Not that I think that free speech in the abstract is more important than privacy or due process or religious liberty or any of the other fundamental freedoms, but as we talked about earlier, freedom of speech is the essential prerequisite for being able to advocate for and to exercise all of the other freedoms.

 Cross Talk about the Anti-Federalists

Doug Monroe:

Anything else. If it hadn’t been for the anti-Federalists, we would be toast. They couldn’t appreciate where all the elements that have grown in modern day society could go.

Nadine Strossen:

I love reading the anti-Federalists and it’s too bad that they’re named as an anti because they were pro-individual liberty. Now, in defense of the Framers, all of the history that I’ve read and the original documents that I’ve read convinced me that they did support all of the freedoms that are expressly articulated in the Bill of Rights. They didn’t think it was necessary to articulate them expressly because they had created a government of strictly limited powers and those powers didn’t include-

Doug Monroe:

They said, “If we’re limited to this, all else applies,” and it’s so obvious in English common law or whatever it was, Napoleonic, you’ll be okay, and they said, “Uh-uh. No. We want it in there or else.”

Which political party wants to police speech? Both!

Doug Monroe:

But is what you’re saying kind of that free speech has always been suppressed, back in the ’60s through today, and it’s always been a problem and maybe it’s grown as a problem recently and that’s why you’re devoting more exclusive time to it? Have the roles of who’s doing the suppressing changed or is it just the parties that are doing it changed or what… I do feel like there’s some sort of a flipping. I read a book about this and the guy talked over a 20 or 30-year period how you can see the political positions of the parties actually flipping totally, if you look at the underlying principle that they’re using at the time. Do you get my question there? What is going on?

Nadine Strossen:

I do get your question and I have to be a bit of a contrarian because I think this is a generally accepted view, but at the more granular level, when I have been involved in the trenches in all of the detailed, specific fights about free speech over the decades, in every single period there have been some… The difference between the left and the right, between Republicans and Democrats has not been, should speech be protected or should it be censored? It’s which speech should be censored? Which do we consider to be the most dangerous? And I can go through every single decade of my adult life, Doug, going back to when I was a student, and tell you that the left was crusading to suppress hate speech on college campus. The so-called radical feminists were crusading to suppress what they called pornography, which is sexual expression that is demeaning or degrading to women, that the left crusaded against misogynistic and violent rap lyrics.

Remember Tipper Gore, then married to then-Senator Al Gore and the Parents Music Resource Center moving into the ’90s when we saw the first school shootings? It was the left who wanted to censor violence on TV and came up with the V-chip. And to this day we have the… To me, the left wanting to censor speech that’s inconsistent with their values, their DEI values, I think would be the major concern today. That’s part of a pattern. Whereas from the right it’s speech that’s inconsistent with our values, whether it be burning the flag, whether it be pro-Communist speech, whether it be anti-war speech, whether it be speech that undermines traditional family values, the American nuclear family. These were all phrases that were used.

Doug Monroe:

I get it, and I know I find myself looking back at some of the positions I took on the issue to the extent I did being in college or whatever, and I said, “Well, why did I really… Why was I okay with that?” I’m not so sure I would be today, and I think people today will look back on what’s going on and have the same reaction, but it has to play out.

Nadine Strossen – Must laws be understandable, reasonable, and provably applicable to work?

Nadine Strossen:

I think that that’s correct, that law is not going to be effective or meaningful that is actually observed and enforced unless it’s logical and reasonable, and that means understood by people. I think part of the reason why many provisions in the Constitution, including the First Amendment itself, were unenforced for most of our history, was that it just wasn’t understood either by government officials or by individual members of the society, and that’s why for me as an advocate of free speech, the first prerequisite is education and information about it. Not only do government officials have to know what it is, but individuals, members of the society have to know so they can be aware when their rights are being violated and they can complain about it and do something about it.

Doug Monroe:

Yeah, it’s something that’s so obvious, but people don’t… But don’t always think about that.

Agency/intent in Western law? With Speech (DJT): Intentional “True Threat”

Nadine Strossen:

It’s interesting because you asked me earlier about my spiritual inclinations and I said, “I don’t really have any,” and yet there are a number of fundamental values that in all candor to you and to myself, Doug, I think really come down to a matter of faith. I don’t think they are provable presumptions. I have a presumption in favor of the goodness of human beings. Why do I give them the benefit of the doubt? I have a presumption in favor of free choice and free will even though I’ve read Robert Sapolsky and other scientists who argue that there is no such thing, and I have faith in individual human beings to ultimately do the right thing even more than I do in government officials, and so bound up in that is this notion that we are autonomous individuals who have the opportunity and the responsibility to exercise our, I call it freedom of choice, will, intent, and maybe that is a type of religious belief that you’re reflecting the divine in each individual, right?

The way the law deals with it is in there are two concepts of intent. One, under tort law, which is civil damages type law, the other under criminal law where the government can punish you. The tort concept is less demanding, and that is you are held to have intended the foreseeable consequences of any act you undertake even if you didn’t specifically desire the particular outcome. Under criminal law, though it’s a higher standard. It’s not just kind of a negligent standard, if you should have foreseen that this would be the consequence of you’re taking that act. You cannot be held criminally punishable unless you specifically desired that particular result. And in free speech cases, the court has insisted on this specific intent standard.

They recently had a decision involving a true threat, the concept of true threat. The adjectives used to distinguish threat from the way we use it more loosely in everyday speech. The Supreme Court in earlier cases had said the speaker means to instill a reasonable fear on the part of audience members the speaker addresses that they will be subject to harm, and the speaker, by the way, doesn’t have to intend to carry out the harm, but has to intend to instill the fear. Once you have that fear, you’re already going to be inhibited in your freedom of speech and your freedom of movement. And the Supreme Court recently had a decision in which the justices split at least three different ways about, well, exactly what concept of intent is enough here? And they came out with either the specific intent that you specifically desired that impact or you acted recklessly, you deliberately ignored a substantial risk that your speech would have that impact. So both more demanding than the negligence standard.

Doug Monroe:

Hard to prove.

Nadine Strossen:

Very hard to prove.

Doug Monroe:

That’s a very hard intense standard to prove. And so you offered a beautiful… I hated that question, because it was so open-ended, but I knew it was good. The problem is you need somebody who can answer it well. Okay, which you just knocked out of the park and I thank you for that. That’s a priceless flip on-

Nadine Strossen:

This, by the way, some of the litigation against Donald Trump in January 6th is coming down to this issue and the speech that he gave to his supporters before they marched on the capitol and stormed it.

Doug Monroe:

Right, right.

Nadine Strossen:

So the standard there is one category of speech that’s unprotected, even if it is speech, is intentional incitement of imminent violent or lawless conduct that is likely to happen imminently, and I think the big debate is did he intentionally incite those followers or not? And judges have split on that so far.

 Truth and “Provability” of Intent

Doug Monroe:

You could see that coming weeks ago, just that issue, and that’s a good lead-in to the last kind of question before actually getting to hate speech is the provability of something. So in that case, they can’t recreate what was in his mind. They’re going to have to find something objectively out there that’s lying around, either a tape or something he wrote, or something he said to somebody that can be proven that’s not hearsay, yada, yada. So what is the role of actions in law versus intent? And my question about does the Western law focus more on intent to do something that you then did rather than what the hell was in your mind when you did it? Is that-

Nadine Strossen:

I think the law recognizes that we are, in most situations, not going to be able to show what was in somebody’s mind, so we have to use circumstantial evidence including their actions and infer from that what they intended, but when the standard is framed in a very demanding way, that you have to show a deliberate desire to bring about a specific result, it does mean that the government is very likely to not be able to meet that standard. As we lawyers know… I used to say to my students this issue of who has the burden of proof and how do we define the burden of proof?

Doug Monroe:

Whether it’s criminal or civil, or-

Nadine Strossen:

It may sound very unsexy and unglamorous and boring, but the outcome of the case in all practical situations is going to turn on these seemingly dry and abstract matters.

Doug Monroe:

It’s win and lose that’s determined by presumption very much so, and thank God for that if you want more freedom, right?

What is “hate speech,” and is it protected? E.g.: Charlottesville – 2017

Nadine Strossen:

There is no legal concept of “hate speech.” So I’m going to use the scare quotes once and now from then on, just imagine those. Precisely because the Supreme Court has never defined a category of speech based on its hateful content and said, “Therefore it is not constitutionally protected or it’s less constitutionally protected.” To the contrary, the Supreme Court has repeatedly enforced as the bedrock principle of freedom of speech, what it calls viewpoint neutrality or content neutrality. Government must remain neutral to the viewpoint, content, message, idea of the speech. No matter how hateful it is, no matter how hated it is, no matter how generally feared it is, government may never restrict speech solely based on the objectionable controversial nature of its viewpoint. However-

Doug Monroe:

That’s political neutrality.

Nadine Strossen:

Yeah, it is complete political neutrality. And I may say it’s the very same core principle that has knit together the two religion clauses in the First Amendment, the non-establishment clause and free exercise of religion. That government must remain neutral toward religion, either religion in general or any specific religion, neither favoring it nor disfavoring it. It’s walking a tightrope, but I think it’s appropriate to demand that neutrality of our government so that we the people as individuals can make those value choices for ourselves.

But when you get beyond the content of the message, Doug, and you look at it in its overall context, taking into account not only the message, the viewpoint, but in what circumstances with what intent, with what effect, these contextual factors, speech with a hateful message may often be subject to context-defined limits on speech. We already talked about one example, a hateful message that constitutes intentional incitement of imminent violence that’s likely to happen imminently, will be unprotected, will be punishable. I think we talked about the other example of another example, a true threat. If a hateful message is targeted at a particular individual or small group of individuals and the speaker intends to instill a reasonable fear that the audience member is going to be subject to attack, that is a punishable true threat. Fighting words is another example. Targeted harassment or bullying. So there are many, many contextually defined examples where hate speech may be punished but not solely because of despising the idea. Since you’ve mentioned–

Doug Monroe:

It’s an intent to harm.

Nadine Strossen:

Yes. Since you’ve mentioned Virginia many times, may I talk about the Charlottesville situation in 2017 if we have time?

Doug Monroe:

Sure.

Nadine Strossen:

So, in Charlottesville, Virginia in 2017, the famous or infamous Unite the Right demonstrations, well illustrate the distinction between speech that is protected, a hateful message that is protected because of the viewpoint neutrality principle versus hateful speech that is not protected because of the contextual circumstances. When the Unite the Right demonstrators were chanting, “You will not replace us, Jews will not replace us.” Those are hateful messages, but they cannot be suppressed solely on the basis of our objection to the viewpoint that those messages convey.

However, in context on the Friday night back there in August 2017, when the Unite the Right demonstrators were not only chanting those messages, but they were marching en masse toward the counter demonstrators who were ringed around the statue of Thomas Jefferson on the UVA campus, brandishing lighted tiki torches at menacingly close distance to the counter demonstrators that constituted a punishable true threat. If you were a counter demonstrator, you would reasonably fear that you were going to be subject to attack, which would have a very speech-suppressive impact. Not to mention depriving you of your liberty.

Worldview and Resisting Hate without Censorship (Good Old “Shane”)

Doug Monroe:

So I’ve got two more questions on hate speech. One, I’m just going to ask you. I have my little advertisement here saying, “We also think worldview knowledge and discussions help.” If you can get the concept, you can take the personal out of it and just with the idea that their 10 to 15 major worldviews out there, and some people come in and out of several, and that’s just the way… But if you can recognize them with the assumption that most people are good and trying to do the right thing, it really helps.

Nadine Strossen:

That’s really my philosophy about hate. The title of my book, Hate: Why We Should Resist It with Free Speech, Not Censorship. So my bottom line concern is resisting hate. I just am convinced that censorship is as ineffective as it is inconsistent with individual liberty, but we have to do something. And I’m fascinated by learning about how people do change their worldviews. People who were brought up and spent their whole lives and in white supremacist organizations or other discriminatory organizations, somehow come to repudiate their views and dedicate the rest of their lives toward countering those hateful views. And they don’t do it as a result of criminal punishment. They don’t do it as a result of being canceled. They do it as a result of reflection and introspection, which usually is prodded by very generous patient interaction on the part of others who interact with them in a spirit of compassion and empathy rather than condemnation or let alone punishment.

Doug Monroe:

Exactly. There’s the opening scene in the classic movie Shane where Shane comes in there and the good guy Farmer puts the gun on him and asks him to leave and Shane says, “Put the gun down.” And he does it. And he said, “I’ll leave. I just wanted it to be my idea.” I think that’s got so much meaning. I’ve written a whole thick essay on it.

Nadine Strossen:

Oh, I’d love to read that.

Doug Monroe:

It’s true.

Nadine Strossen:

Could you send that to me?

Doug Monroe:

Most people want to do the right thing, but they have to embody it and they have to get there. And when you can do that, you have a fusion of intent and will and personalization that lasts if that can be done. And so anyway.

Nadine Strossen:

What you’re talking about is-

Doug Monroe:

But here I want to come back to that question you just answered because I think it’s so important. Your book 2018, Hate: Why We Should Resist It With Free Speech, Not Censorship. And the reason for that is?

Nadine Strossen:

Because what we are trying to change are, number one, attitudes, hateful attitudes. And number two, actions. Hateful, discriminatory, violent actions. To go after expression is to go after the most superficial manifestation of a deep-seated attitude. And so it may give you some sense of moral satisfaction to be punishing words, but it is actually an ineffective strategy at best. At worst, it’s counterproductive. And it’s counterproductive because among other things, you’re going to create a martyr out of the censored person. You’re certainly going to harden their ideas and the ideas of their supporters. And history and present experience around the world shows that under such inherently subjective concepts as hate, those who enforce these concepts predictably, disproportionately punish the very voices that are hoped to be liberated and protected. So we over and over again, we see minority speakers, advocates of minority group rights whose ideas are considered to be hateful.

The Hamas/Palestine/Israel-related protests? VIOLENCE IS NOT PROTECTED

Doug Monroe:

Gotcha. All right, the last question in this arena is to bring it to now and the problems with we’re dealing with this in UNC, AFSA and Columbia and Cornell, et cetera. How do we balance free speech versus violence in the current Hamas situation, Palestine versus Israel? Everyone’s struggling with this. What’s your view?

Nadine Strossen:

Well, there’s no balancing at all. Violence is not protected. This should go without saying. And yet sadly, surveys that have been done by FIRE and by Heterodox Academy and others show that a distressingly high percentage of students, including on the most elite campuses, say that violence is sometimes justified in order to suppress an idea they disagree with. No, no, no. Not only is violence itself not protected, but speech that has a sufficiently close connection to violence also is not protected. So intentional incitement of imminent violence is not protected.

A true threat that puts somebody in reasonable fear, they will be subject to violence, is not protected. Intimidating, harassing, bullying expression is not protected. And I think in a particular situation, one has to evaluate the facts, but from the videotapes I’ve seen and other evidence I’ve seen, there seem to be many clear-cut situations on campus where not only has there been actual violence, but where the expressive conduct has crossed the line and should and must be punished as unprotected expression for this reason. That when you are engaging in harassment or threats or intimidation or intentional incitement, you are violating somebody else’s free speech rights. You are stopping them from expressing their viewpoint.

In fact, you’re often stopping them even from exercising their freedom of movement. They feel intimidated. And we read many accounts. Intimidated even to leave their dormitory rooms, let alone to go to classes or to go to certain portions of the campus. Last night, one of my best friends whose husband teaches at NYU was not able to get into her apartment building because the disruptive threatening protesters were intimidating her as a Jewish person. And interestingly enough, the police officers said to her, “Oh, they have first amendment rights.” And just as it is very dangerous to meaningful free speech for government to quickly punish protected speech, it is also dangerous for government not to punish speech that is not protected.

Cross Talk about UNC’s April 2023 Campus Protests

Doug Monroe:

Okay, so what we’re wrestling with this right now, we have a board meeting on and on Tuesday, and I personally totally agree with you and I think I get it, but applying it is the hard part. And so in North Carolina we were caught between a devil and a deep blue sea a little bit because we have institutional neutrality in the law about universities. And then we have the clear exception to violence that you’re talking about in both speech and action. And so as this developed in October, after October 7th… Actually one of my best friends since I was a sophomore in high school and through college, and he’s the godfather of my second son is Jewish.

And he was a strong advocate of political neutrality at first. And as things have moved along and developed, Carolina has not had the problems that even UVA has had and certainly not up here, but it has been like last weekend, the south building, the administration was totally surrounded by tents and it did get violent. I’m sure there may have been some threats, there was chanting, but so we’re trying to wrestle with the open inquiry versus the violence exception. I’m fine with it, with going to that. How do we deal with that? How would you advise us? Hopefully this isn’t free legal advice.

Protected Speech/Not Protected (intentionally inciting imminent violence)?

Nadine Strossen:

The standards are very clear and in some situations, I suppose the facts can be murky, but I actually don’t think it’s that-

Doug Monroe:

You don’t think it’s hard?

Nadine Strossen:

The cardinal rule is you may never punish speech and by punish, that includes any kind of restriction or sanction or regulation, solely because of disagreement with the message. So people debate is from the river to the sea advocacy of genocide, it doesn’t matter. You can expressly advocate genocide. That is protected expression. Let me be very precise about this, Doug. Unanimously, way back in 1969, a case involving a KKK speaker who was advocating violence against Jews and Blacks and government officials, the court unanimously issued a holding that every single justice since then has agreed with. Think about that, all of the ideological diversity-

Doug Monroe:

That’s staggering. That never happens by the way.

Nadine Strossen:

And they said advocacy of violence or lawlessness is protected. It only crosses the line when it’s not just advocacy, but it’s intentional incitement. And there’s a difference between advocacy and incitement. And not only does it have to be incitement versus advocacy, it has to be intentional and it has to be inciting, imminent violence or lawlessness.

Doug Monroe:

In that day?

Nadine Strossen:

It’s got to be immediately that is likely to happen imminently. Excellent question. What does imminent mean? The Supreme Court had a subsequent case that involved an anti-Vietnam war demonstrator who said to his followers… They were having some disruptive demonstration, the police had cleared them away. And he said to his followers, “We’ll take the fucking streets later.” And the Supreme Court said by indefinitely talking to later, that fails the imminence requirement. There was another case the Supreme Court decided involving an NAACP speaker who was rabble-rousing his followers to boycott merchants who were allegedly discriminating against Black people. And he said, “If any of you violate that boycott, we’re going to break your damn neck.” And there was some actual violence days later and a week or so later against boycott violators and the Supreme Court said that fails the imminency requirement. So I think these standards are hard to satisfy.

That said, I would say there’s one standard that we haven’t talked about expressly that is relevant because it’s being enforced now by the Department of Education, Office of Civil Rights and also in some private lawsuits. And that’s the concept of hostile environment harassment under Title VI of the Federal Civil Rights Statute. Any educational institution, public or private that gets government money does so on a number of conditions. And one of the conditions is that it must respond immediately or promptly to complaints about hostile environment harassment, which consists of a pattern of conduct, including expressive conduct that is objectively offensive and so severe and pervasive that it deprives the targeted group of equal educational opportunity. And complaints have been brought on behalf of Jewish students and faculty members against a number of campuses that they are facing hostile environment harassment. And that’s a little bit more murky because you’ve got to look for an overall pattern and when each individual instance can’t be punished on its own, but maybe in the overall context, the university has an obligation to take some mitigating action.

Doug Monroe:

Yeah, that’s complicated. And it’s tough for the law to handle all that.

Nadine Strossen:

I should say-

Doug Monroe:

It’s tough.

Nadine Strossen:

The Department of Education has said that some of its complaints that it has brought… Which are confidential. I mean, it announces that it’s brought the complaints, but it doesn’t give you the details. It has said that some of them are based on Islamophobia and discrimination against Arab and Palestinian students as well as Jewish students and Israeli students.

Which laws need enforcement? Necessary Discernment

Nadine Strossen:

Government has to have some discretion. It would be impossible to enforce a hundred percent of the laws a hundred percent of the time. And I think that there usually are not constitutional remedies unless you can show that the discretion is actually being exercised in a completely arbitrary way, arbitrary and capricious, or worse yet in a discriminatory way. So if, for example, laws against things that many people do, such as breaking the speed limits or parking in unauthorized places, et cetera, if all of those were only enforced or very disproportionately enforced against people of a certain race or a certain gender, that would be problematic. But other than that, we’ve got to entrust them to make decisions about allocation of resources and law enforcement priorities.

Doug Monroe:

Is it kind of a non-standard standard, like say the business judgment rule?

Nadine Strossen:

Yes.

Doug Monroe:

It is. So it’s really, really hard to go anywhere with that.

Nadine Strossen:

I think you would have to… And I think that’s correct. I think… Unless we’re talking about fundamental rights. But even there, the Supreme Court has given a lot of latitude even in the enforcement of the death penalty, even against a lot of evidence that shows that there is some significant racial disparity in how it’s meted out. That is concerning.

What is your perspective on DEI and its implementation at universities?

Nadine Strossen:

So DEI, diversity, equity, inclusion, from my perspective, incontrovertibly positive values. So maybe presumably the intent behind these programs was positive. That does not at all mean that how they are actually defined in a particular situation, let alone how they are actually implemented in a particular situation is positive. The devil is in the details to coin a cliché. And as I have followed and examined actual DEI programs, how those goals, how those values are actually defined and how they’re actually implemented, they’re in many ways completely contrary to what I consider to be true diversity, true equality or fairness and true inclusion. Number one, most DEI… I shouldn’t say most. To the best of my knowledge, of the many programs that I have-

Doug Monroe:

But you’ve been a professor for a while.

Nadine Strossen:

Of the many programs, but they exist in every university. And I can say-

Doug Monroe:

That’s true. They’re different. They’re very different.

Nadine Strossen:

But too many that I have seen, the overwhelming majority that I have seen, define DEI very narrowly. They’re looking at diversity with respect to identity and not with respect to ideas or beliefs. And in terms of identity, they’re only looking at a certain number of factors, predominantly matters of race and ethnicity and gender and sexual orientation, and not with respect to other matters such as life experience, with respect to religion, with respect to philosophy, with respect to politics, with respect to economic background. And therefore, we have campuses that are overwhelmingly the opposite of diverse when it comes to philosophical and political beliefs. And that is very dangerous to the search for truth, which I’m sure is why Jonathan Haidt so strongly opposes not the concept of DEI, but what it actually has devolved into. Because he and other social scientists have shown how academic research is undermined by the lack of intellectual and ideological heterodoxy on campus.

Secondly, DEI has been implemented in very binary Manichaean approaches that purport to divide all of us into two categories, oppressor and victim. And then to arbitrarily create these hierarchies, if you will, of people who allegedly have power based on one aspect of their identity. Then they become inherently oppressors and are somehow less worthy in many ways, including their speech should be subject to suppression versus so-called victims who are, I think also disadvantaged in many ways, being treated in a very patronizing way, but including being shielded from ideas that are deemed to be insensitive to them. I think part of the reason for the rampant anti-Semitism on campus, Bari Weiss has written about this a lot, is that Jews are lumped together into the oppressor category despite the history of persecution-

Doug Monroe:

As if they’re all same. I mean, come on.

Nadine Strossen:

… despite the fact that many Jews are people of color, including many, many Israelis. So that is the opposite of treating each person with dignity and respecting each person as a full-fledged human being. So I wouldn’t give up on the aspiration, but I think a big overhaul is needed at the very least.

Doug Monroe:

Okay. So you weren’t as far apart as I thought you might be. Let me put it in a little more context, because I think you’re really going to be helping us in Chapel Hill where I suspect that the trustees are going to follow, say the Affirmative Action ruling. And that has implications on DEI. It’s certainly in admissions. So they’re going to follow the law, even though they lost with your school too. And so how that trickles down, but it’s not just about admissions or hiring. You might have say head of a humanities department that says, “Well, we’re going to do that because you tell me I have to, but we’re still going to do DEI in my department.” Whatever that means. What would that mean to you as a professor? I don’t know, you fired all the DEI people in the administration, let’s say, but some of them move into other areas of the school. And what does the school do with the good aspirations of DEI?

Nadine Strossen:

All of these issues that we’ve been talking about, Doug, including freedom of speech and having what we consider to be DEI concepts that to me would be consistent with classical liberal principles of individual.

Cross Talk on Feminism

Doug Monroe:

I believe in all those principles personally.

Nadine Strossen:

Treating each person as an individual and not just-

Doug Monroe:

Diversity, I want it. Right?

Nadine Strossen:

Yeah. That those really depend on changing the culture. What you’re saying is it’s fine to change the law, but that is not going to be self-executing, and it can be defeated by actual actions of people on campus or in our larger society, which is why we have to come back to education and changing people’s attitudes and aspirations.

Doug Monroe:

Okay, fair enough. All right. This is a fascinating question to me personally, because… Who was I reading about the four waves of feminism? But I knew there were two.

Nadine Strossen:

I didn’t know that there were four either.

Doug Monroe:

And then I knew there were three. And now there’s a four. I think it’s getting the vote is one. Being equal in every way. I know you’re at least that. And then third is, I think it’s just more man-dislike. I’m not really sure. And fourth is to erase all… Make genders neutral. Make them all the same or something.

Nadine Strossen:

That to me isn’t even feminism anymore.

Doug Monroe:

I think people… We’re not… With him going, we’re still on it. But I mean, even… I graduated from college in 1970. Most of my friends are married. All the wives went to real good schools with us. We all thought they were going to be professionals. It was not even questioned. That passed, I think somewhere maybe when you were coming along. It was passing in my own mom’s generation. People don’t realize that things that bubble up into law… Or law usually lags culture and politics. But anyway, how would you talk about yourself there? How would you classify yourself in that regard?

Your thoughts on feminism?

Nadine Strossen:

I am a feminist the same way I am a civil libertarian. I very much believe in the individual dignity and freedom of choice of each individual, regardless of any aspect of that individual’s identity, including gender or sexual orientation, that we should not allow either government or society or culture or any movement to put us in boxes and tell us this is what a woman is, this is what a feminist is. And so my definition of feminism is probably considered quite conservative at this point. And it is just the right of all women to have the same fundamental human rights and opportunities as a man would have.

Doug Monroe:

Yeah, okay. There’s not a whole lot more to be said. And like I said, I think that ship sailed somewhere in the late sixties.

Nadine Strossen:

I don’t know what term is used for it, but I became a strong opponent and still am of the so-called radical feminists who are seeking to protect women from certain choices. And to me, I put the term radical in quotes because to me, it couldn’t be more reactionary to essentially equate women with children and say that if we think we’re making our own choices in realms of sexuality and sexual expression, that we’re victims of false consciousness, that we think we’re enjoying sex, but we’re really being raped and we don’t realize it. And I’m not parodying. This was actually written by Andrea Dworkin, Catherine McKinnon, and you see it in certain strains of feminism today. I think the Me Too movement at its root had a very positive intent and initial purpose to push the pendulum back against exploitation of women that had been going on unredressed for too long. But then the pendulum went too far to punish seemingly every expression in the realm of sexuality or relations between men and women that some women considered to be objectionable or insensitive.

Doug Monroe:

Yeah, that one will probably go around as long as the world turns too, but from what I can tell, it’s a problem more in America than in Europe and the rest of the world.

Nadine Strossen:

There was that wonderful letter that Catherine Deneuve wrote along with I think about a hundred other prominent French women.

Doug Monroe:

I love that letter. I just thought, I want to go over to France, but I married the right woman.

Smartphone limitations for minors? Violating the First Amendment?

Nadine Strossen:

There, I would really defer to psychological experts, and I’ve been following the debate that’s been swirling around Jonathan Haidt’s new book. Now, his research seems to be extremely well documented, but one of the things I really respect and admire about him is he’s always inviting criticism and publishes criticism. And so I see that there’s different evidence that points in different directions and different interpretations. And I will say this to the best of my understanding, Jon is not advocating any government measures at all. He’s advocating measures that should be undertaken voluntarily by parents. And I understand different parents will evaluate the evidence and reach different conclusions.

Doug Monroe:

I haven’t read his book. We’re actually coming out with a book review on it. But I have a crackerjack female. She’s really number one. I’m number two, but she’s writing a book review on it. But I do think it’s at least localized solutions. Okay. I think that’s fair to say. But that’s interesting that you would say that. Okay.

Nadine Strossen:

I mean, the independent parental control of communications and expression by their own young minor children is something that is consistent with individual freedom in the sense that you need a certain degree of maturity to fully exercise First Amendment and other freedoms. And the Supreme Court has rightly recognized going back to the early 20th century, that parents have a constitutional right to determine the education, upbringing and values of their own children.

Doug Monroe:

And clearly, there are plenty of age limitations in the law for all kinds of things.

Does the First Amendment cover pornography?

Doug Monroe:

Okay. I’m not going to elaborate on my question about pornography, but you can at least know where I’m coming from on that. It’s an ongoing thing and Lord knows, I’m glad Hugh Hefner came along and changed standards a little bit, especially when I was younger. But like all virtues, there’s a golden mean to be found. What do you think about that? That’s a sensitive question, I know.

Nadine Strossen:

I very strongly defend individual freedom of choice for mature individuals with respect to sexual expression. Because the term pornography, like the term hate speech, has no legal meaning, and we tend to use it as a stigmatizing term for whatever sexual expression we personally find distasteful.

Doug Monroe:

You don’t like.

Nadine Strossen:

And yet the Supreme…

Doug Monroe:

That is correct. No one could debate what you said there.

Nadine Strossen:

The most famous definition was Supreme Court Justice Potter Stewart. People think he was joking, but he was completely serious. He said, “I cannot now define pornography that should not be constitutionally protected, but I know it when I see it.” And that’s the point. It has to come down to each individual. And in terms of efforts to show that there is some adverse impact of any subset of sexual expression on people’s attitudes has been tried and tried and tried and completely failed. I recently reviewed the social science literature again. Sometimes, you can show a brief correlation between intense exposure to violent sexual expression and a more accepting attitude toward actual violence. Very fleeting, and it’s a correlation, it’s not a causation, and it’s never been shown to translate into actual action.

So I think this demonization of sexual expression, something peculiar to the United States, we have much greater tolerance for hate speech and for defamation and for all kinds of vitriolic political speech about public issues. But when it comes to sexual expression, we’re very squeamish and puritanical compared to Europe and other countries. They laugh at us. And I think from right to left, there tends to be this assumption that there’s something uniquely dangerous about sexual expression.

In the ’80s we had the Meese Pornography Commission, Attorney General Ed Meese, and on behalf of the religious right and cultural conservatives who said that, “Pornography undermines the traditional American family.” At the same time, you had the radical feminists saying, “Pornography undermines women’s dignity and equality.” They had exactly the opposite views about the role of women and the relationship of women to families, but they agreed that there’s certain sexual expression that is dangerous to their own views. And I think if you added up all of the sexual expression that the radical feminists wanted to suppress and the religious right wanted to suppress, you’d end up with basically nothing.

Doug Monroe:

Yeah, yeah. No, it’s a tough one. And I’m going to leave that one. I’m just going to throw in my own thing is I don’t see physical harm or anything like that, but I do think for young men, it harms their mind and their relations with women, you know?

Nadine Strossen:

I know it might seem intuitive, and I really have read studies recently because the Woodhull Freedom Foundation asked me to endorse a new project they have that is countering the myths and misconceptions. And I believe they’re intellectually honest meta-studies of social scientists saying, “Well, it doesn’t necessarily.” You would say, “Oh, it gives them these fantasies that are unrealizable in the real world. And so it undermines their ability to have actual relationships with actual women.” I’ve read that a lot, but the scientific evidence doesn’t actually document that.

Doug Monroe:

Well, I trust your investigation in that, which I have done the zippo of. And so it could be just a phobia on my part, but I would say some of the social science, not focusing on pornography, but I am getting data from college kids or just out of college, that they’re not satisfied with their social relations and people are having a hard time figuring out why.

Nadine Strossen:

And that might be going back more to the Jonathan Haidt point that they’re just not having enough interaction with actual people, not just with respect to sex, but conversations or anything else.

Doug Monroe:

Exactly. Exactly.

Thoughts on transgenders in women’s sports?

Nadine Strossen:

I haven’t followed it in detail, but from what… I suppose I’ve followed it more than most people, but not to the same degree. Free speech has taken almost all of my time, but precisely because of the censorship or efforts to suppress certain controversial views on this issue. I have read them, which ironically, I mean that shows the ineffectiveness of censorship, try to suppress a book and a lot of people are going to read it, who wouldn’t have otherwise read it. So I read Abigail Shrier’s book.

Doug Monroe:

It’s a great strategy.

Nadine Strossen:

Exactly. And I’m very concerned, it seems to me to raise basic questions of equity and to raise basic concerns about women to give women equal opportunity or some opportunity to have a realistic shot at succeeding in sports. You can’t have them compete against people who have biological attributes or certain hormones. That seems to me to be a genuine concern.

Doug Monroe:

Okay. Well, it’s funny, I have interviewed one trans woman, I guess you would call her. She was a man, Deidre McCloskey. Are you familiar with her?

Nadine Strossen:

Yes, of course. I know her.

Doug Monroe:

Just the best interview.

Nadine Strossen:

The economist. Yeah, she’s phenomenal. She’s one of us.

Doug Monroe:

She’s so outgoing and just delightful to interview. My wife was there for the whole thing and she loved it, but it was like, that’s ridiculous, having men compete against women, but she’s wild and crazy, but-

Nadine Strossen:

I mean the logical outcome would be-

Doug Monroe:

I think y’all overlap in your overall-

Nadine Strossen:

Oh yeah. We’re both on the board of University of Austin, so we’ve hung out together at that.

Doug Monroe:

Yeah, I’m going to tell her I interviewed you and say hello.

Title IX: School admissions and gender? Male – Female Relations Today

Doug Monroe:

Okay. This is a thing that’s not an issue yet, but I think it may be. And that is if you take University of North Carolina where… I’m a Heather McDonald type meritocracy. You get in, you’re capable or you’re not. But the problem at Chapel Hill is 65% are women. Okay?

Nadine Strossen:

65?

Doug Monroe:

Yeah.

Nadine Strossen:

Wow.

Doug Monroe:

Yeah. And they’ve tried to I think, get it down, but they can’t. And so I’m going, darn, if my daughter who went to UVA was applying there, I tell her to go somewhere else except for the fact she is truly an attractive woman, and I think so she’d be in the top tier socially, you know what I’m saying? So what happens in that environment is those dominate. And so the women that aren’t in that category, let’s say if you had to rate on whatever basis, they have a hard time, and they will tell you that.

Nadine Strossen:

Wow.

Doug Monroe:

It’s not a good social situation.

Nadine Strossen:

That’s what I alluded to. When I went to college, it was a four to one ratio in my favor. And not only did we get better grades, but we had more dates. So I get you, how unfair that is.

Doug Monroe:

It makes it hard for the men are… And let’s just talk socially, and then I’ll get to academics. The men are treated better than they should be, and the women are not treated as well as they should be. And that’s a gross exaggeration to say that. On the academic side, you have women, as I’m sure you know, over, not that there’s an over, but they’re much more interested in psychology, counseling. A lot of certain types of study are gender-related, there are gender differences. So you’re not as balanced on the academic side as you might be.

Nadine Strossen:

Right.

Doug Monroe:

So what if I said, well, North Carolina, could they say 50/50 men, women when Title IX is doing that for athletics, for money? I haven’t seen that issue crop up yet, but what do you think about that given all your legal knowledge? I’m just curious.

Nadine Strossen:

My legal knowledge is not… I’m not an expert in this area, but I’ll tell you my political and ideological leanings are we have to treat each individual as an individual. And I would think that the recent politics about gender fluidity and the difference between gender and sex would make it, even those on the left who might otherwise support some kind of affirmative action, a little bit leery because you’re having people saying, “Well, it’s too simplistic binary to talk about males and females or even the same person on any particular day.” So I mean, I think one thing that I like about that is that you’re not going to put somebody in a really limiting box. What I don’t like about it are the social pressures that Shrier documents among young adolescents to seem to be reacting to peer pressure.

Doug Monroe:

So to translate what you said, I think I’m putting words in your mouth, but you would say, what is the law now? Stick to the law.

Nadine Strossen:

Or maybe even reverse the law. I mean, Title IX has done a lot of damage to free speech and to due process, not necessarily as the law itself was written, but the regulations that have been promulgated under it. Biden’s administration, as you saw just a few days ago, came out with regulations that rolled back the due process protections and the free speech protections.

Doug Monroe:

Okay. I wasn’t aware of that. So you get the applications, you have the law, you obey the law, and you balance as well as you can for what the school’s trying to achieve. Right? I mean, is that kind of what you’re saying as far as the male/women balance?

Nadine Strossen:

Well, now, in terms of the law, the Supreme Court has spoken about the impermissibility of race as a criterion, but it hasn’t expressly addressed sex or gender. But it might come out the same way because in the most recent relevant case on point, which involved another Virginia institution, Virginia Military Institute, the court essentially treated sex as being as suspect, that’s the constitutional term of art, a classification as race. So there might well be, if the court considered it striking down any gender-based affirmative action as well.

Doug Monroe:

Right. I’ve thought about that. Obviously, it’s kind of obvious, it’s sitting there and who knows where that will go. Okay, well that’s helpful to me. Again, that’s not an issue that… We got more important things to worry about at this point, but still. All right, we’re down in the last few questions here.

Nadine Strossen:

Well, I am concerned about men. I think they’re facing a lot of challenges socially and legally, educationally. They don’t have many role models. And the bashing, I mean you can get away with… Hate speech against men is not even considered hate speech. Even the phrase toxic masculinity, it’s like being a man is considered to be somehow offensive to many people.

Can libertarianism withstand today’s nihilism absent God?

Doug Monroe:

Can libertarian, in other words relying on an ideology and principles, withstand the onslaught of postmodernism, which is classically against truth, I guess, critical theory, cultural Marxism, in other words, and they’re saying, “Why do we need to actually be kind of religious fundamentalists and think God wants us to do it.” What do you think about that? Can you withstand it?

Nadine Strossen:

I work very closely with libertarian organizations and many libertarian individuals. I think the Cato Institute is… I work constantly with Cato and I often speak on campus to Students for Liberty and Young Americans for Freedom. There are actually proliferation of libertarian groups on campus and they seem to be thriving, and maybe in some ways because of the adversity. I often reflect on the fact that friends and colleagues who have experienced repressive regimes really fight for free speech. Whereas I think a lot of people in this country take it for granted until their free speech is threatened, which is why so many on the left who had poo-pooed complaints about censorship on campus and cancel culture, once the progressive views on Israel-Palestine started to be subject to some suppression, suddenly they’re all in favor of free speech.

So I think likewise, the fact that there are all these movements that are challenging a libertarian worldview gives people who are attracted to or even just considering that view more of an incentive to think about it seriously, to explain more deeply why it is a true view or one that they find to be personally true and meaningful. It’s one of the virtues of questioning everything that John Stuart Mill salutes on liberty, that-

Doug Monroe:

He’s a Shane principle man, remember the movie. I mean, he’s absolutely right there.

Nadine Strossen:

So I mean, to be forced to re-examine, even if you then reaffirm your pre-existing principle, you will do so with renewed vigor and understanding of vibrancy.

Doug Monroe:

Yes. And I would add to that, this is something I’ve only observed in the last two or three years, probably because events have become more appointed since the summer of 2020, but those that are out there leading the charge and defending in many ways, and they’re even dragging some Christians along behind them are libertarian. I think that’s worth thinking about why that is. I could name Hyde, could name Dieter, could name James Lindsay. You may know him. I mean, I don’t know what it is, but so whatever you’re saying, I think I agree with you.

Thoughts on capitalism/socialism related to freedom/human flourishing?

Nadine Strossen:

Well, as somebody who is congenitally suspicious of government and government power, maybe even especially when there are good intentions, I would be loathed to give the government even more power over the economy as well as any other sphere of life. I distrust my fellow individual human beings less than I distrust the government. Plus one can look at the record. I think it’s indisputable that the greatest flourishing of equal opportunity and health and happiness and all good things in life, including individual liberty, have occurred under capitalism and have been repressed under socialism with the exception of, I don’t know what the term would be, the kind of socialism that you have in Western European democracies.

Doug Monroe:

In Nordic countries.

Nadine Strossen:

We kind of have in the United States as well. My husband, who’s an economist, has done a lot of examination. He says, despite the stereotypes, the United States does have extremely high taxes, we do have extremely high social benefits.

Doug Monroe:

I think our tax rate is something like 35% of total or 40%, the federal, whereas in Norway or-

Nadine Strossen:

Denmark.

Doug Monroe:

… some of these countries, it gets up to 60.

How necessary is America to the world? An Essential Aspiration for Freedom

Nadine Strossen:

Essential. As an idea, as an inspiration, as a government that is founded on universal aspirations of humanity, going back to I think your very first, or one of your very first questions, Doug, throughout every documented era, including going back to ancient times, there’s been an aspiration for freedom. And obviously, we were nowhere close to actually realizing the ideals of liberty and justice for all. But to be the first government that is founded on those aspirations, that creates a constitution that makes it possible for us to come closer and closer to actually realizing those aspirations. People vote with their feet, they vote with their lives. People are sacrificing everything to try to get here. And again, it’s heartbreaking. I think those Americans who thumb their nose at this country are worse. They’re spoiled. They take for granted luxuries. I see feminists for Hamas, you got to be kidding me, or queers for Hamas.

Doug Monroe:

Everyone laughs about that one.

Nadine Strossen:

I think that they cannot fathom the cruelty and the oppression that exists in other countries and in other movements. And so it’s easy to take for granted what this country stands for. And by the way, I feel the same way about Israel. I think it’s the only other country that I’m aware of that was really founded on an ideal, yes, to some extent an identity. Although Arabs are welcome and many Arabs are peacefully, powerfully flourishing in Israel as well as Jews and non-Jews from all over the world. I think that humanity as a whole would really be impoverished if either of our country’s, God forbid, disappeared.

Doug Monroe:

You don’t need any logical reason to support Israel. For me, you don’t need a logical reason. It’s just what needs to be done because it’d be horrifying without Israel, period.

Nadine Strossen:

That’s the way I feel about the United States too.

Are you optimistic or pessimistic about America’s future?

Doug Monroe:

Yeah. So I think you’re in a really unique position to answer this question that I usually end interviews with because you’ve been so in the trenches really all your life. And that’s one thing that I think this interview has brought out. But particularly in the 1990s, which is now, sad to say 30 years ago-

Nadine Strossen:

Amazing.

Doug Monroe:

30 years ago, how do you feel about the US then versus now? And it’s phrased in optimism or pessimism, but it doesn’t have to be answered that way.

Nadine Strossen:

I’m a congenital optimist. You cannot be an activist without being an optimist.

Doug Monroe:

That’s a good point.

Nadine Strossen:

The quote that I have under my email signature, which nobody ever reads down that low, interestingly enough, comes from Cornel West and Roberto Unger, who are quite different politically, and via David Cole, who is the ACLU legal director. He was quoting them. And it’s something like this, “I believe that hope is more the consequence of activism than its cause.” And that’s true. When you are an activist, you are facing enormous challenges, but you definitely see the ability to make change, you see incremental change, you meet other people, present company included, who share your aspirations, who are dedicating their talents and their time and their resources, tangible and intangible, and you have reason for hope.

Doug Monroe:

That is fantastic. I just want to say that it’s been so fun to interview you.

Nadine Strossen:

Thank you.

Doug Monroe:

You have a huge fan.

Nadine Strossen:

Oh, thank you. Right back at you.

 

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