UCLA Professor Eugene Volokh – Threats To Our First Amendment Right Of Free Speech: Are private organizations bound by the First Amendment? Should organizations police the speech of their members? Are we going down the 1950’s blacklist road? What is the definition of “hate speech”? Should groups that do not have ideological components be allowed to police speech? Are “tolerant” people really becoming intolerant, demanding conformity instead of allowing diversity? Tune in to hear UCLA Professor Eugene Volokh answer these questions and more!
Air Date: 03/03/2021
Guest: Eugene Volokh
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: Â As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Faith and the Culture
You find the intersection of faith and the culture. It’s WallBuilders Live. Check us out at wallbuilderslive.com. That’s our radio website where you can get archives of this program. You can find out more about us, the hosts. My name is Rick Green, I’m a former Texas legislator and America’s Constitution coach. David Barton is here.
He’s America’s premier historian and our founder of WallBuilders. Tim Barton is here. He’s a national speaker and pastor and president of WallBuilders. And we are so glad, all three of us that you’ve joined us.
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Alright, David, Tim, later in the program, we’ve got Eugene Volokh, he’s a professor at UCLA. Yes, we’re going to have a professor from UCLA here on WallBuilders Live and he’s an expert on the First Amendment.
What Is This Realtor’s Association Doing?
We’ve got an interesting story. I mean, this was, I guess, the largest well, the realtors are a huge lobby organization in every state and apparently one of the largest associations in the country, about a million and a half people. And the association itself apparently is going after hate speech of their members, whether public private doesn’t matter. And of course, we all know, “hate speech” can mean just about anything these days.
Yeah, Rick, you, Tim, myself, we’ve all seen the effect of realtors in politics. They have a lot of money, a ton of money. We all know good friends who have been taken out of politics because the realtors would put 10 times more in a race than what the candidate is able to put in, just to keep someone from getting in or getting out.
And so this headline really caught our attention, I’m just going to read part of it. This came from Center Square. Headline says “A big move to ban Realtor ‘hate speech’ – at work, anywhere, 24/7”. Let me just read the opening part of the article because this kind of sets up the story we’re going to cover today.
It says “In one of the most far-reaching social policy moves in the corporate world, the National Association of Realtors, called the nation’s largest trade organization, has revised its professional ethics code to ban “hate speech and harassing speech” by its 1.4 million members.
The sweeping prohibition applies to association members 24/7, covering all communication, private and professional, written and spoken, online and off. Punishment could top out at a maximum fine of $15,000 and expulsion from the organization. NAR’s (National Association Realtors) decision, allowing any member of the public to file a complaint, has alarmed other real estate agents…”
Down a Slippery Slope
So I mean, you can imagine what’s happening here. You’re realtor, you’re part of the association now you get kicked out because some one person somewhere heard you say something, saw a social media post, misinterpreted you or said oh, you’re part of a, I don’t know, church group and that part of the hate movement, or whatever it is, I mean, this thing opens up to no limits almost. And to be able to use that 1.4 million membership, and the corporate capacity is silence, even personal opinions. This is unbelievable.
And this is where to it is an interesting thought, guys, because if you’re a private organization, a corporation, generally we say yeah, you have the right to do that. And I think we still would in this situation, is just recognizing the ramifications of what that means. Right? It’s kind of like saying Coca Cola has the right to tell their people, be less white.
It’s just that’s one of the most ridiculous things, foolish and dangerous for culture and society. And this is where there is that balance of no, we totally respect that the free market, we respect private property and private businesses. We just recognize how dangerous this is, and what the ramifications could be going forward.
Well, to address this topic as a professor from UCLA that specializes in the First Amendment and even looking at how it affects the marketplace when it’s a private actor, but with government behind that private actor.
A Weird Partnership
In other words, is almost like this weird partnership between these private entities and social media and whatnot and government. You know, there’s really their situation is truly a private organization. But where does it go from there? And that’s the questions being raised in this article, is what other organizations are now going to do this?
Is every profession now going to be literally limited in what they can say and what they believe and our rights of conscience going to be violated and all these different areas? Well, Professor Eugene Volokh from UCLA is going to comment on this when we return right here on wall builders.
The American Story
Hey, guys, we want to let you know about a new resource we have at WallBuilders called The American Story. For so many years, people have asked us to do a history book to help tell more of the story that’s just not known or not told today. And we would say very providentially, in the midst of all of the new attacks coming out against America, whether it be from things like the 1619 project that say America is evil and everything in America was built off slavery.
Which is certainly not true or things like even the Black Lives Matter movement, the organization itself, not out of statement, Black Lives Matter, but the organization that says we’re against everything that America was built on, and this is part of the Marxist ideology. There’s so many things attacking America.
Well, is America worth defending? What is the true story of America? We actually have written and told that story. Starting with Christopher Columbus, going roughly through Abraham Lincoln, we tell the story of America, not as the story of a perfect nation or a perfect people, but the story of how God used these imperfect people and did great things through this nation. It’s a story you want to check out wallbuilder.com, The American Story.
A Moment from American History
This is Tim Barton from WallBuilders with another moment from American history. After the final victory at Yorktown, the Continental Army awaiting the outcome of peace negotiations with Great Britain, Pastor Israel Evans, a chaplain in the army proposed to George Washington, but they build a structure where church services can be held during the month of waiting. Washington approved the plan, and urged his officers to ensure that the soldiers attended service.
Pastor Evans further knew, if we were to secure the liberties they had fought for, sound education would be crucial. He declared, “Every parent and every friend of the freedom of his country ought to be attentive to the improvement of our youth in the principles of freedom and good government; and then the people will stand fast in their liberty for a long time.” Our schools today need to return to teaching the principles of freedom and good government in order for America to survive and prosper.
For more information about Pastor Israel Evans and other colonial patriots, go to wallbuilders.com.
Welcome back to WallBuilders Live. Thanks for staying with us. Interesting article on what’s happening with realtors, now not allowed to speak on many things, or else potentially face fines or be kicked out of their organization. Professor Eugene Volokh is with us from UCLA. He’s a law professor who specializes in the First Amendment. Professor, thanks for your time today, sir.
Welcome Professor Eugene Volokh
Oh, it’s a great pleasure.
So this seems like a slippery slope that we’ve been on for a while that seems to just get worse and worse, but private organization, obviously, but still to say that they’re going to basically monitor your private speech and potentially kick you out of the organization, what do you think about this sort of thing?
Yeah, you know, I am pretty troubled by it. It’s complicated, precisely because it’s a private organization. Private organizations aren’t bound by the First Amendment. First Amendment starts with Congress, Congress shall make no law. So that binds the federal government. The Fourteenth amendment applies that to state governments, no state shall, but private entities aren’t bound by the First Amendment. And there are no laws that limit them from policing their member’s speech.
Indeed, some private organizations you expect would do that. One classic example is churches, right? A church could excommunicate someone for heresy. You know, we might think that sometimes that may be a little bit too militant, maybe it’s better for them to keep the person in and then try to persuade them.
But obviously, they’re entitled to do that, and in some respect that’s what keeps them as the organization that they are. Likewise, a political party or especially a political advocacy group could say, look, the things you’re saying are inconsistent with our message, so go ahead and say them and just say them elsewhere. Say them without being a member of our group.
Ideological or Professional Groups
On the other hand, once you go beyond these kinds of groups that are kind of clearly understood as being ideological, you get to professional groups, and especially ones where professional membership has a lot of economic benefit to it, so being a realtor gives you access to certain kinds of like the multiple listing service.
Which is a searchable online database for real estate, and various other such benefits. That I think it’s bad for society, I think it’s bad for freedom of inquiry, and it is something that’s likely to lead to more such things.
First, if the realtors do it, it’s hard to see why other groups wouldn’t do it. And second, you know, there’ll be other groups that say, well, we don’t like people who say militantly anti-police things, or we don’t like people who oppose the war effort in times of war. I think we’ve been down that road before in the 1960s with a blacklist of people who are suspected of being communist.
And I think that’s not something that’s good for society. I don’t think that you should lose membership in a group that is that important as a practical professional matter and a group that doesn’t have an ideological component to it generally, just because they don’t like the ideas you’re expressing.
Yeah, and then concerned that it was just a huge organization, I mean, 1.4 million members. But that it would not just be them. But that this would start to spill over into other organizations and just continue to be part of the canceled culture.
In your study of the First Amendment and its impact on America’s freedom and prosperity and all of those things, what happens when even outside of government action we just become this silencing and canceling type culture, what does that do to the rest of our freedoms? Does that begin to impact even our prosperity as we start to not want to do business with each other?
Right? Well, it’s complicated, it’s in part because indeed, throughout American history, it’s been pretty broadly understood that private entities can expel people based on their politics. And my guess is, you know, I’m not a historian primarily, but my guess is that throughout American history, there have been times when this was more or less common.
That, for example, we know that in the 1950s, this happened in some measure to communists and people who are seen as communist sympathizers. But beyond that, whenever you hold views that are militantly opposed by people who have influenced, you’re going to lose some business opportunities. That’s just the reality of things.
I do think that now that we have, in many ways, much larger groups that are much more kind of well integrated at a national level, and I can’t say this is somehow unprecedented in American history, but I do think that when people talk about polarization, where people talk about people no longer wanting to really engage with one another and just going off in their own echo chambers, this will just exacerbate that, it seems to me.
Because if people feel like there are people out there who want to ruin my professional life because of my politics, what they’ll probably do is it’ll radicalize the people who are concerned about that, and they’ll say, look, you know, I’ve got to do everything I can to keep those people who are trying to cancel me keep them out of power. So I think this is just going to increase the radicalization, we have the difficulty speaking across the aisle, the difficulty making compromises and working things out with each other.
First Amendment Freedoms
And this, of course, bumps up into one of the other freedoms in the First Amendment, freedom of assembly and to peaceably assemble with whoever you choose to hang out with and to express your beliefs with. So how do we balance that?
Because we want to obviously keep that and again, I’m not saying government should take action here, but in terms of what we encourage as a nation, these are precious freedoms in the First Amendment.
Yeah. You know, I think part of the problem is that in the name of greater tolerance, in the name of greater diversity and inclusion, I think a lot of people are becoming highly intolerant of rival views. They are demanding uniformity rather than diversity, and they’re demanding exclusion rather than inclusion.
And I think that that’s a really serious problem. Indeed, I don’t think that there should be laws that require these associations to not discriminate based on viewpoint, although the fact is that there are laws that that employers, in many states employers aren’t allowed to fire employees because of the employee’s political activity, so that includes private employers.
So you can imagine laws limiting that. I hope it doesn’t come to it. I hope that groups sort of, say if somebody demands, oh, you expel this person, they say, you know, it’s not for us to police the views in the speech of our members. And nobody should think that we are responsible for everything that our members say, our million plus members say.
Nobody should think we agree with them. But it’s important to kind of separate various facets of your life that you could have, whatever sex life you want, whatever religious life you want, or whatever political life you want. And that’s not going to affect your standing as a lawyer or as a real estate agent, or as an engineer. Might affect your standing as a minister because maybe if we’re hiring a minister, we want somebody who adheres to our standard of morality in all facets of his life, maybe, but that’s a very unusual thing, that shouldn’t be generalized to all sorts of other jobs.
Cutting Across Culture
Yeah. And I would think with an organization that is a profession like real estate that cuts across every area of the culture, socioeconomic, belief systems, everything that you would have people of every persuasion in that industry and in that particular organization and need to have a broad policy of allowing for those various beliefs and not trying to police those individual beliefs.
That’s especially so. Because you know, it always starts out well, we just want to go after a hate speech. We want to only want to go after the Nazis or the Klansmen. Alright, but it never ends that way. Already, you look at definitions of hate speech, and that could include things Like people condemning particular religious groups, including with extremist religious groups, who I think deserve often to be condemned.
The people who are expressing traditional views about homosexuality or by gender identity, and I’m not talking just about people sort of insulting each other with flowers, but just expressing views that in fact, actually that gender identity isn’t as fluid as some people claim these days and a man who is biologically male, but who perceives himself as female, shouldn’t be treated as a female. Those are plausible views. I’m not sure it’s the correct view. But those are plausible views that people should be free to discuss and express. And increasingly, those are the sorts of things that are labeled hate speech.
Now everything that they’re outright definitions of racism, for example, that means that describe anything where there is a racial disparity in long, various kinds of metrics as structural racism, and anybody defending that, and opposing, say, the Black Lives Matter movement or the like as being a racist in the hate speaker.
So it’s quite clear that this kind of restriction would end up covering a great deal of political expression that… You know, it may be wrong the political expression that people are engaging in, but we need to discuss it and engage with it and explain why it’s wrong and consider that it may be right, rather than just trying to ruin people’s professional lives because of it.
We use to actually pride ourselves on that, right, that we would rather have an arena of ideas and the opportunity to speak. And we used to often say I’ll fight and die for your right to be wrong, and your right to speak as you believe and boy, that doesn’t seem to be something that we pride ourselves on, is it?
Right. To be fair, I think we have to accept this is human nature. I don’t think there was ever a golden age where of course, everybody was completely tolerant of you as they disagreed with. Different people at different times wanted either ban different views or to get people blacklisted for different views or get people expelled for different views. So this is not something that somehow we had this golden age of tolerance, and now we’re out of it.
But I do think that what’s going on here is dangerous for society, as well as unfair to many people who are either risking possible economic ruin, or at least serious economic loss because of it, or aren’t risking it because they decide not to risk it, because they decided to stay quiet rather than express their genuinely held views.
Common Sense at UCLA?
Okay, I got to ask how in the world you could be so rational and sounds so common sense and be surviving at UCLA?
One word, tenure. There are a real cost to tenure, which is to say, tenure being the rule that generally speaking universities can’t fire people who’ve been there for more than some number of years and who have been given tenure, at least can’t fire us unless we commit some crime, or do we do something like that. T
here are real costs to that rule. But there one advantage is that I can get away with saying things that many of my colleagues and my students might sharply disapprove of, and you know, I face various professional repercussions, but I don’t have to worry about that I won’t be able to put food on my kid’s table.
Wow. Interesting. Okay. If you don’t mind one more question, though, as a First Amendment expert, what are your thoughts on as you kind of have this hybrid of private market but with government protection? And of course, I’m talking big tech and how they’re beginning to censor and using these advantages that they have? Do you think we’re starting to see a new area of First Amendment law as this begins to happen?
Journal of Free Speech Law
Well, it’s interesting. I just started up, I announced today a new academic journal called the Journal of Free Speech Law, and our editorial board agreed that our first issue is going to be a symposium on whether the government can and should regulate platforms, removal decisions like Facebook deciding to block certain accounts or Twitter or YouTube deciding to take down certain messages. I think it’s a very difficult question.
I think that probably it would be constitutionally permissible for the government to say, look, you should be like a phone company. Phone company can’t just cancel somebody’s phone because it’s being used for I don’t know, KKK recruiting. If the person is actually committing some crimes using their phone, well, then, of course, the police should arrest them and have them prosecuted. But we don’t leave it to individual phone companies to decide how to police political speech on their phone systems. And maybe the same should be done for Facebook, Twitter, and the like.
So I think it’s probably constitutional to impose that kind of so called common carrier model on the platforms. The same time, there could also be huge unexpected consequences, government regulation often has that. So I’m not sure it’s a great idea. But it’s certainly something we should be talking about. And my colleagues and I are going to be talking about it in two months at the symposium.
Well, we would love to have you back after the symposium to get a little report on what you learned and how the experience was. That sounds very, very interesting. Professor, thank you so much. Really appreciate your time today. We want recommend people also go watch your PragerU, you get some great stuff out there. And I just appreciate you coming on the program.
Please. And if I could mention one more thing speaking of the videos? I put together with a grant from the Stanton Foundation and together with Reason TV, I put together 10 videos on free speech, and it’s called “Free Speech Rules”, because it’s the rules of free speech law, we try to be pretty objective, and fair and balanced in the presentation of the things.
And if you go to Freespeechrules, just one word put together, freespeechrules.org or you search for “free speech rules” on YouTube, you’re going to find these videos. And you know, I think they work well for junior high school and high school and college students. But they work well for adults too. And each one is about five minutes long.
Oh, that’s great, so needed right now. It really needed right now. So yeah, I love it. And in fact, look forward to sharing that myself on social media. So thanks for pointing that out, I didn’t realize that was out there. Good stuff. Professor, keep it up, we definitely would love to have you back.
Very much. My pleasure. I look forward to it. Just let me know whenever you’d like.
Thank you very much. Stay with us, folks, we’ll be right back with David and Tim Barton.
Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know but it gets frustrating because they don’t know where to look for truth about the Constitution either.
Well, we’ve got a special program for you available now called Constitution Alive! with David Barton and Rick Green. And it’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the cradle of liberty and Independence Hall and to the WallBuilders library, where David Barton brings the history to life to teach the original intent of our Founding Fathers.
We call it The Quickstart Guide to the Constitution, because in just a few hours through these videos, you will learn the citizens guide to America’s Constitution, you’ll learn what you need to do to help save our constitutional republic. It’s fun, it’s entertaining, and it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive! with David Barton and Rick Green. You can find out more information on our website now at wallbuilders.com.
We’re back here on WallBuilders Live. Thanks for staying with us. And thanks again to Professor Eugene Volokh.
Be sure and check him out on PragerU as well. And we’ll have links to those additional free speech videos that he’s been making. David, Tim, you know, I know people at home are shocked right now listening to realize that we’re teaching on WallBuilders Live from UCLA, not what we normally do here at WallBuilders. But I’m usually against tenure, but I’m glad this guy is still able to speak truth on their campus.
When he said he was tenured, I thought, okay, it makes sense how he’s there. But also, I thought, you know, I don’t like tenure at all for lots of reasons. And I think there’s a good reasons not to like tenure.
But normally, tenure cuts against us, it’s not normally keeping someone who is very solid on the issues. And certainly, this is a situation where someone whose voice is critically needed at a university like UCLA, when these students are not going to hear this, arguably, from any other professor at UCLA. So certainly encouraging that somebody like that is there, and a really different perspective than what a lot of people are saying today.
I thought it was really cool what he was saying the fact that they’ve put together a law forum on free speech, and the First Amendment, and the first one they’re doing is on big tech. So you know, really cool they’re getting some law professionals to start writing about these kinds of issues, because that does have an effect within the legal community and within the academic legal community. So that was really good.
But I thought he put his finger on as well, he said, in the name of tolerance and unity, we’re becoming more intolerant, and is exactly right. You know, we have these First Amendment rights for freedom of speech and freedom of association expression, but we’re becoming intolerant of them and using our First Amendment rights to keep you from talking about certain things, which is just a really kind of weird oxymoronic thing.
So it is, you know, Tim, as you said, at the beginning, look, we support the right of private businesses to be able to regulate speech. We do that in churches, other places, but at the same time, we used to do that with a common set of values, that we all believe that there was truth that there were absolutes, we didn’t make our own truth up and we believe that certain things were right and wrong, and there were certain moral values and, certain things about the free market that were good.
And now we don’t believe that anymore. And so it really is become a thing that without common values, we take whatever tools we’ve gotten we’re trying to beat down the other side, whatever side that happens to be, and that’s just not a good situation for any nation.
Well, we want to thank each of you that are listening today for being a part of the WallBuilders program, you’re part of the solution. Listen, when you listen to WallBuilders Live, and then you go share that with your friends and family. You’re a force multiplier. You’re a super spreader, a super spreader of freedom, a super spreader of truth.
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UCLA Professor Eugene Volokh – Threats To Our First Amendment Right Of Free Speech
Another thing you can do is actually start hosting one of our classes, right there in your church, in your living room, somewhere in your community, get people together. They need the fellowship right now, and they need truth. And you can take our Constitution Alive program our biblical citizenship program, that’s a brand new.
And in fact go to Biblicalcitizens.com today, it’s entirely free. It’s got Kirk Cameron in it, Mat Staver, Rabbi Daniel Lapin, Congressman Barry Loudermilk, David Barton, Tim Barton, myself, Rick Green, I mean, all these folks in there, teaching you the truth of where we came from as a nation, the truth about what the Bible says we need to do as citizens.
How do we act this out? How do we live out our freedom under the Constitution appropriately? How do we protect the First Amendment we’ve been talking about today? How do we restore even that basic freedom of speech in our culture?
Well, friends, we address all of that in the Biblical Citizenship in Modern America program, and you can host it right there in your community. I hope you’ll consider doing that. Go to Biblicalcitizens.com today to find out more about that particular course and then of course, wallbuilders.com for all of our different programs.
Sure, appreciate you listening today. You’ve been listening to WallBuilders Live.