Harvey Silverglate: Freedom of Speech | Lex Fridman Podcast #377

00:00:00.000 | It is the most important right that Americans have.

00:00:04.240 | It's not a coincidence or an accident

00:00:07.540 | that it's named in the First Amendment to the Constitution.

00:00:12.180 | Without it, no democratic society

00:00:15.420 | can be democratic for long.

00:00:17.300 | And I'm an absolutist.

00:00:20.960 | That is, I believe that, for example,

00:00:23.920 | people say to me, "But what about hate speech?"

00:00:28.080 | Well, hate speech is much more important than love speech.

00:00:31.280 | And the reason is, I'm much more interested

00:00:33.600 | in knowing whom I should not turn my back on

00:00:37.120 | than I am interested in figuring out who loves me.

00:00:40.840 | - The following is a conversation with Harvey Silverglate,

00:00:45.960 | a legendary free speech advocate, co-founder of FIRE,

00:00:49.080 | the Foundation for Individual Rights and Expression,

00:00:51.680 | and the author of several books

00:00:53.760 | on the freedom of speech and criminal justice,

00:00:56.440 | including "The Shadow University,"

00:00:58.920 | the Betrayal of Liberty on America's Campuses.

00:01:01.520 | Harvey is running to be

00:01:04.080 | on the Harvard Board of Overseers this year

00:01:06.480 | with the write-in campaign,

00:01:08.320 | so you have to spell his name correctly, Silverglate.

00:01:12.160 | Promising to advocate for free speech

00:01:14.520 | and to push for reducing the size

00:01:17.000 | of Harvard's administration bureaucracy,

00:01:19.520 | election is over this Tuesday, May 16th, at 5 p.m. Eastern.

00:01:23.920 | To vote, you have to be Harvard alumni.

00:01:26.560 | So if you happen to be one, please vote online.

00:01:29.520 | It's a good way to support freedom of speech

00:01:31.440 | on Harvard campus.

00:01:33.200 | Instructions how to do so are in the description.

00:01:36.920 | As a side note, please allow me to say

00:01:38.920 | that since there are several

00:01:41.040 | controversial conversations coming up,

00:01:43.000 | I tried to make sure that this podcast

00:01:44.960 | is a platform for free discourse

00:01:47.400 | where ideas are not censored but explored,

00:01:50.040 | and if necessary, challenged

00:01:52.040 | in a thoughtful and pathetic way.

00:01:54.640 | It's by having such difficult conversations,

00:01:57.080 | not by avoiding them,

00:01:58.520 | that we can begin to heal divides

00:02:00.400 | and to shed light on the dark parts

00:02:02.240 | of human history and human nature.

00:02:05.400 | This is the Lex Friedman Podcast.

00:02:07.400 | To support it, please check out our sponsors

00:02:09.440 | in the description.

00:02:10.840 | And now, dear friends, here's Harvey Silverglate.

00:02:15.600 | You co-founded the Foundation

00:02:17.760 | for Individual Rights and Expression,

00:02:19.960 | also known as FIRE, a legendary organization

00:02:23.040 | that fights for the freedom of speech

00:02:24.400 | for all Americans in our courtrooms,

00:02:26.800 | on our campuses, and in our culture.

00:02:29.760 | So let's start with the big question.

00:02:31.640 | What is freedom of speech?

00:02:33.720 | - First of all, the organization,

00:02:36.080 | when I co-founded it in 1999,

00:02:40.840 | was called the Foundation

00:02:42.880 | for Individual Rights in Education.

00:02:46.240 | It focused on free speech issues

00:02:49.880 | on college campuses in academia,

00:02:53.160 | and only earlier this year did we decide

00:02:56.160 | to expand our reach beyond the campuses,

00:02:59.560 | which is why the name,

00:03:00.720 | although the acronym FIRE remains,

00:03:03.640 | it's now the Foundation

00:03:05.160 | for Individual Rights and Expression.

00:03:07.720 | - The E used to be education.

00:03:09.200 | - The E used to be education.

00:03:10.640 | It's now expression.

00:03:12.240 | And we basically do a lot of the cases

00:03:14.360 | the ACLU used to do.

00:03:15.920 | The ACLU now more is a progressive organization

00:03:20.920 | rather than a civil liberties organization.

00:03:23.680 | And we've taken the role

00:03:27.760 | of dealing with free speech

00:03:29.160 | in the society generally.

00:03:31.680 | And now this is a particularly,

00:03:33.920 | in the era prone to censorship.

00:03:37.800 | Everybody thinks they're right,

00:03:40.280 | and that people who disagree with them

00:03:42.440 | should not be able to voice their views.

00:03:45.240 | It's a very difficult period right now,

00:03:46.960 | both on campus and off campus.

00:03:49.040 | It's about as intolerant an era

00:03:52.880 | as I can remember.

00:03:54.400 | I'm gonna be 81 May 10th.

00:03:56.360 | I was born on Mother's Day, 1942.

00:03:59.720 | And I can't remember it being this bad.

00:04:02.200 | I was born during the McCarthy era.

00:04:04.580 | - So that says a lot.

00:04:07.480 | - And it sort of reminds me of that.

00:04:11.000 | - Let's start with that,

00:04:12.680 | almost a philosophical question,

00:04:14.520 | a legal question, a human question.

00:04:16.560 | What is this freedom that you care so much about,

00:04:19.480 | that you fought for so much,

00:04:20.760 | freedom of speech?

00:04:21.920 | - It is the most important right that Americans have.

00:04:26.160 | It's not a coincidence or an accident

00:04:29.440 | that it's named in the First Amendment

00:04:32.000 | to the Constitution.

00:04:34.100 | Without it, no democratic society

00:04:37.320 | can be democratic for long.

00:04:40.240 | And I'm an absolutist.

00:04:42.880 | That is, I believe that, for example,

00:04:45.840 | people say to me, "But what about hate speech?"

00:04:50.000 | Well, hate speech is much more important than love speech.

00:04:53.200 | And the reason is I'm much more interested

00:04:55.520 | in knowing whom I should not turn my back on

00:04:59.040 | than I am interested in figuring out who loves me

00:05:03.000 | or who likes me.

00:05:03.960 | So hate speech is the most important, in my view.

00:05:08.800 | And yet it's banned in, for example, schools.

00:05:12.360 | It's unbelievable.

00:05:13.640 | Kids are not schooled into understanding

00:05:19.200 | the glory of the First Amendment

00:05:20.880 | when schools say to them they shouldn't say things

00:05:24.320 | that are gonna make somebody feel bad.

00:05:26.220 | I mean, the purpose of speech is to express

00:05:30.760 | honest views that people have.

00:05:33.720 | And so I believe hate speech is as important as love speech,

00:05:38.440 | and my view is more important.

00:05:41.640 | - So it should be brought to the surface

00:05:43.200 | rather than operate in shadows.

00:05:45.520 | - Absolutely, absolutely.

00:05:48.400 | - What is the connection between freedom of speech

00:05:50.600 | and freedom of thought?

00:05:52.300 | - Well, in a free society,

00:05:54.700 | thoughts start in the brain

00:05:58.400 | and then they come out the mouth.

00:06:00.400 | So they're different ends of the same spectrum.

00:06:04.440 | - So to you, the censorship of speech

00:06:07.440 | eventually leads to a censorship of thought.

00:06:09.880 | - Of course, censorship of the mode

00:06:12.160 | by which other people know what you're thinking.

00:06:15.120 | - So there's some aspect of our society

00:06:17.120 | that thinking is done collectively,

00:06:20.080 | and without being able to speak to each other,

00:06:21.920 | we cannot do this kind of collective thinking.

00:06:24.160 | - And out of speech, the theory is that ultimately,

00:06:26.800 | out of speech comes truth.

00:06:28.880 | That isn't necessarily so,

00:06:32.080 | but I do think that when there's free speech,

00:06:34.300 | better decisions are made

00:06:36.400 | because people put their views on the table

00:06:39.160 | in a frank, accurate way,

00:06:42.300 | and then those views mix together and clash,

00:06:47.300 | and out of that usually comes the better decision.

00:06:52.660 | Not always, but usually, or more often than not.

00:06:58.820 | But if somebody is not allowed to sit at the table

00:07:03.320 | of decision making, then the decision making process

00:07:06.920 | is poorer, less robust, less diverse,

00:07:11.920 | and ultimately less successful.

00:07:15.600 | - So can you elaborate on the idea

00:07:18.400 | of free speech absolutism?

00:07:20.440 | So hate speech can be quite painful

00:07:25.240 | to quite a large number of people.

00:07:27.480 | Does this worry you?

00:07:28.680 | - Yep.

00:07:29.880 | Living in a free society requires

00:07:32.880 | that you expose yourself to some discomfort.

00:07:36.400 | You call it pain.

00:07:38.200 | It's maybe emotional pain.

00:07:40.240 | It's not physical pain,

00:07:41.780 | but it's the price we pay for living in a free society.

00:07:48.880 | Every so often, we're insulted.

00:07:50.740 | We're emotionally hurt.

00:07:53.640 | Think of the alternative.

00:07:56.260 | All the alternatives are worse.

00:07:58.500 | Nobody ever promised us a rose garden.

00:08:01.760 | We're lucky to be in a country that has the First Amendment.

00:08:05.040 | It's also the most diverse country in the world

00:08:09.800 | because of immigration.

00:08:11.160 | My grandparents, my father's side came over from Russia.

00:08:17.760 | My mother's side came over from Poland.

00:08:20.700 | I'm very happy that my grandparents came in from Russia.

00:08:24.200 | I would not want to be in Russia today.

00:08:26.360 | I'd probably be sharing a cell

00:08:28.820 | with a Wall Street Journal reporter.

00:08:30.620 | So I'm thankful that they came in.

00:08:37.240 | And this is a great country.

00:08:39.220 | It's got troubles right now, but our country doesn't.

00:08:42.160 | And we've had, before we had a civil war,

00:08:45.240 | we had segregation.

00:08:47.480 | We had the decimation of the Indians.

00:08:50.620 | We're not perfect, but it's the best place in the world

00:08:54.640 | for somebody who values liberty.

00:08:57.240 | - So you don't think that hate speech

00:08:59.640 | can empower large groups that eventually

00:09:03.640 | lead to physical action, to physical harm to others?

00:09:08.420 | - No, I don't.

00:09:09.260 | I think that we have developed a culture

00:09:13.480 | in which it's understood that if you don't like

00:09:16.920 | what you hear, you talk back.

00:09:18.780 | You write something.

00:09:24.320 | We don't punch each other, we insult each other.

00:09:27.520 | Is insulting great?

00:09:30.000 | Well, I don't know, it's okay.

00:09:31.940 | As a kid in Brooklyn, where I was born,

00:09:35.800 | I was born and raised in Bensonhurst,

00:09:38.480 | we used to say, "Sticks and stones can break my bones,

00:09:41.080 | "but names can never harm me."

00:09:43.100 | And it's absolutely true.

00:09:44.840 | What was true when I was five is true when I'm almost 81.

00:09:49.320 | So I've lived a long time, I've seen it all.

00:09:52.520 | And I'm talking from experience as well as theory.

00:09:56.440 | It's what happens when you reach your 80s.

00:09:58.540 | - I read that you had this line that you cannot

00:10:02.720 | be protected from being called an asshole.

00:10:04.920 | - Correct.

00:10:06.160 | Especially if you're an asshole.

00:10:07.800 | (Lex laughing)

00:10:08.960 | - Well, that's, but you don't have to be an asshole

00:10:12.200 | to be called an asshole.

00:10:13.040 | - That's correct.

00:10:13.860 | - And I think the internet has taught me that.

00:10:16.340 | - Well, the internet has posed a particular challenge

00:10:20.160 | to free speech absolutists because of some

00:10:22.160 | of the stuff that's on there is god awful.

00:10:24.740 | But I have no different rule for freedom of speech

00:10:28.700 | on the internet than I have in newspapers or in lectures

00:10:33.120 | or in classrooms or conversations among people.

00:10:37.680 | - What do you think about the tension between freedom

00:10:41.040 | of speech and freedom of reach as is sometimes termed?

00:10:45.480 | So the internet really challenges that aspect.

00:10:48.040 | It allows speech to become viral and spread

00:10:51.560 | very quickly to a very large number of people.

00:10:53.520 | - Well, you know, we've had revolutions

00:10:56.560 | in the modalities of communication.

00:11:01.560 | After all, newspapers were the first challenge.

00:11:05.580 | Radio and television posed a new challenge.

00:11:12.820 | The FCC tried, but ultimately gave up the attempt

00:11:19.120 | to control obscenity, for example.

00:11:24.120 | And the Supreme Court has been pretty close.

00:11:29.480 | The one thing that liberal and conservative

00:11:32.080 | Supreme Courts, right now we're in a conservative era

00:11:34.920 | due to Trump nominations.

00:11:37.740 | During much of my life, the Warren Court,

00:11:43.600 | it was William O. Douglas, Brennan,

00:11:47.680 | it was a liberal court.

00:11:49.800 | One thing they agree on is free speech.

00:11:52.360 | They don't agree on much else,

00:11:54.400 | but they do agree on free speech.

00:11:56.040 | And I think the reason is that they recognize that,

00:12:01.040 | well, my group is in the ascendance today,

00:12:04.320 | but it may not be tomorrow, and I wanna have objective,

00:12:08.320 | clear rules so that when I'm in the minority,

00:12:11.120 | I'm able to voice my opinion.

00:12:12.980 | And so it's one of the few things

00:12:16.600 | that both sides of the political spectrum agree on.

00:12:20.480 | The only people who don't are the people

00:12:23.200 | way over on the right that I call the fascists,

00:12:25.760 | and the people way over on the left,

00:12:28.280 | who are the communists.

00:12:29.540 | But with respect to most people on the political spectrum,

00:12:35.060 | Republicans, Democrats, Socialists, Libertarians,

00:12:38.520 | they agree on the primacy of free speech

00:12:44.080 | because it protects them when protection is needed.

00:12:48.560 | - So to you, even on the internet,

00:12:50.580 | free speech absolutism should rule.

00:12:54.160 | - Yes.

00:12:55.480 | Nobody's gonna die.

00:12:57.120 | Remember, death threats are not protected.

00:13:00.660 | Nobody's gonna die.

00:13:03.800 | So people are gonna be a little bit insulted.

00:13:06.020 | That's the price you pay for living in a free society.

00:13:09.160 | And it's a small price, in my view.

00:13:13.440 | Some people don't have as tough a hide as others.

00:13:16.000 | Well, then develop it.

00:13:17.660 | I don't mean to sound cruel,

00:13:22.040 | but you're living in a free society.

00:13:25.240 | Develop a tough hide.

00:13:26.720 | - So that's the cost of living in a free society.

00:13:30.680 | - Yep, there's a cost.

00:13:32.600 | - The thing is that it can really hurt at scale

00:13:35.540 | to be cyberbullied, to be attacked

00:13:38.160 | for the ideas you express,

00:13:39.400 | or maybe ideas you didn't express,

00:13:41.200 | but that somebody decided to lie about you

00:13:45.160 | and use that to attack you.

00:13:48.240 | - Well, first of all,

00:13:49.600 | there are some exceptions to the First Amendment.

00:13:54.520 | Libel and slander is an exception.

00:13:56.900 | Direct threats are an exception.

00:14:02.220 | If you say such and such, I will murder you.

00:14:06.160 | That is not lawful.

00:14:08.200 | If you say about somebody,

00:14:12.740 | oh, you beat your wife,

00:14:15.080 | that is not lawful if, in fact,

00:14:17.920 | the person knows you don't beat your wife.

00:14:20.480 | There are some limits.

00:14:22.160 | Defamation is one.

00:14:23.520 | Direct threats are another.

00:14:25.900 | The First Amendment is not absolute,

00:14:32.160 | but it's more absolute than it is in any other society,

00:14:35.720 | and it's pretty near absolute.

00:14:38.680 | For example, fraud.

00:14:42.360 | If you sell somebody a car,

00:14:45.140 | and you say, oh, this is in great running shape,

00:14:47.240 | and in fact, it's an old jalopy,

00:14:48.920 | and it's not gonna make it more than 10 miles,

00:14:51.700 | that's fraud.

00:14:52.840 | That's not free speech.

00:14:54.200 | So free speech is not absolute.

00:14:57.920 | There are these limits,

00:14:59.140 | but they're very narrow, specific categories of limits.

00:15:03.240 | - But there's gray area here,

00:15:04.860 | because while legally you're not allowed

00:15:07.280 | to defame a person,

00:15:09.320 | in the court of public opinion,

00:15:11.120 | especially with the aid of anonymity on the internet,

00:15:14.760 | rumors can spread at scale.

00:15:18.000 | Thousands, hundreds of thousands of people

00:15:19.960 | can make up things about you.

00:15:22.640 | - You have to defend yourself.

00:15:24.720 | - Using more speech.

00:15:25.760 | - We're big, we're through freedom of speech,

00:15:28.200 | we're big boys and girls.

00:15:29.700 | You have to defend yourself.

00:15:32.120 | In some societies, if you say something,

00:15:37.480 | if you, right now, if you say something nasty about Putin,

00:15:40.720 | you'll end up in the gulag.

00:15:42.380 | If you say something nasty about Biden,

00:15:46.680 | you end up in the New York Times.

00:15:48.160 | Where would you rather be?

00:15:49.520 | - Well, let's talk about the thing you've done

00:15:52.760 | for over 20 years,

00:15:53.940 | which is fight for the freedom of speech

00:15:56.440 | on college campuses.

00:15:58.480 | So why is freedom of speech important on college campuses?

00:16:01.400 | - Well, it's important everywhere in the society,

00:16:03.840 | but it's most important on college campuses.

00:16:06.320 | Why?

00:16:07.600 | 'Cause that's where we educate our young citizens.

00:16:11.340 | And if you are educated under a notion

00:16:16.040 | that some dean can call you on the carpet,

00:16:21.040 | because you say something which is considered racist,

00:16:24.720 | or you can say something which is considered

00:16:28.040 | dangerous to social cohesion,

00:16:34.760 | then it's not a liberal arts college, no.

00:16:37.600 | The theory that I used in The Shadow University--

00:16:43.560 | - A book you've written, The Shadow University.

00:16:46.760 | - 1998.

00:16:48.040 | - 1998.

00:16:49.880 | You were ahead of a lot of these things, by the way.

00:16:51.800 | - I'm afraid that as a pessimist,

00:16:54.720 | I always saw the bad side of things.

00:16:57.280 | - Betrayal of Liberty on America's Campuses,

00:16:59.600 | The Shadow University, a book you co-authored

00:17:02.320 | with Alan Charles.

00:17:03.560 | - With one of my Princeton classmates, Alan Charles Coors,

00:17:06.440 | who's now an emeritus professor of Enlightenment history

00:17:10.080 | at the University of Pennsylvania.

00:17:12.640 | I only taught for one semester,

00:17:14.280 | and I can go into that later,

00:17:16.240 | the reason that I did not continue to teach in colleges.

00:17:20.040 | It was Harvard Law School I taught a course in the mid-1980s.

00:17:25.180 | But in any event, the college campuses

00:17:29.640 | are one of the most important for free speech,

00:17:34.200 | because this is where people get education.

00:17:36.840 | And if you don't really get a good education,

00:17:39.400 | if certain points of view are not allowed to be expressed,

00:17:42.560 | because education comes from the clash of ideas,

00:17:46.800 | and you then have to decide,

00:17:48.320 | this is how you become a thinking adult.

00:17:51.700 | You have to decide which ideas make more sense to you,

00:17:56.120 | which ones you're gonna follow.

00:17:58.680 | The college experience is transformative.

00:18:01.360 | And if there is censorship on campuses,

00:18:05.800 | it's highly destructive of the educational enterprise,

00:18:10.800 | and ultimately to the entire society.

00:18:14.880 | We have in the sciences, we have a scientific method.

00:18:19.880 | Scientific method is you try experiments,

00:18:24.840 | and you see which ones work,

00:18:26.700 | and then you develop theories

00:18:28.220 | based upon the results of experiments.

00:18:30.780 | Well, this is not much different

00:18:32.060 | from every other aspect of life.

00:18:34.380 | You have to entertain different views on different subjects.

00:18:38.020 | You hear all the views, and you make a decision

00:18:40.220 | as to which one's accurate, which one's not.

00:18:42.960 | So the scientific method I apply to non-science,

00:18:47.780 | to history, to journalism, to all of these things.

00:18:53.480 | - So that scientific method includes ideas,

00:18:56.440 | hateful ideas also?

00:18:57.600 | - Correct, if you don't allow hateful ideas.

00:19:00.280 | I mean, when scientists do experiments,

00:19:03.500 | nobody says to them, oh, you know,

00:19:05.800 | don't do that experiment, because it would be very bad

00:19:08.840 | if that turns out to be accurate, that outcome.

00:19:12.360 | That's not the way it works.

00:19:13.760 | Every point of view is thrown into the marketplace,

00:19:20.160 | whether it's science, or whether it's,

00:19:23.320 | you know, non-science.

00:19:25.120 | - And that includes the kind of ideas

00:19:28.200 | and the kind of discourse that might actually

00:19:30.400 | lead to an increase in hate on campuses?

00:19:33.280 | - The First Amendment prohibits speech

00:19:37.760 | which is liable to produce imminent, imminent violence.

00:19:42.760 | So for example, you know, the exception is yelling falsely,

00:19:51.560 | falsely yelling fire in a crowded movie theater.

00:19:54.680 | A lot of people misstate it.

00:19:56.360 | They say, oh, the exception is yelling fire

00:19:59.400 | in a movie theater.

00:20:00.240 | Well, if there's really a fire,

00:20:01.120 | you're performing a real important function

00:20:03.760 | by yelling fire. - You don't mention that part.

00:20:05.460 | - But it's falsely yelling fire.

00:20:07.720 | You start a riot, people would be crushed trying to get out.

00:20:11.680 | So there are these, that's one of the exceptions,

00:20:15.200 | the First Amendment, as the Supreme Court has defined it.

00:20:20.000 | There are very few exceptions.

00:20:21.860 | And defamation is an exception.

00:20:25.000 | I'm not a fan of that exception, frankly.

00:20:28.880 | But if you say something about somebody

00:20:32.880 | that has serious implications in their life,

00:20:37.320 | in their ability to earn a living,

00:20:39.480 | if you say, accuse somebody of being a pedophile

00:20:42.400 | when it's not true, that person can sue you.

00:20:47.160 | My own view is I think that's an unfortunate exception,

00:20:50.040 | but I'm not on the Supreme Court.

00:20:52.320 | I think that I'm with, a friend of mine was Nat Hentoff.

00:20:59.040 | Nat Hentoff, who wrote for decades

00:21:02.940 | for the Village Voice in New York.

00:21:04.840 | He was a friend of mine.

00:21:08.480 | He was a free speech absolutist.

00:21:11.120 | And he wrote a fabulous book called

00:21:13.760 | Free Speech for Me but Not for Thee.

00:21:17.160 | And he was an absolutist, and I'm with Nat Hentoff.

00:21:21.920 | - Even on the defamation aspect.

00:21:23.360 | I mean, I agree with you in some sense,

00:21:25.320 | just practically speaking.

00:21:27.240 | It seems like that the way, the best way

00:21:32.080 | in the public sphere to defend against defamation

00:21:35.000 | is with more speech.

00:21:37.240 | - Correct.

00:21:38.120 | - And through authenticity, through authentic communication

00:21:42.200 | of the truth as you see it.

00:21:45.360 | - Yeah, you know, at times, the Boston Globe

00:21:48.120 | has said something about me that hasn't been accurate.

00:21:50.840 | They have invariably published my letter to the editor.

00:21:54.000 | I'm also not bashful about getting in touch

00:21:59.000 | with the reporter.

00:21:59.840 | At the end of every column,

00:22:01.120 | they give the reporter's email address.

00:22:03.460 | And I know people say that I have more access

00:22:09.180 | to the media than most people.

00:22:12.360 | But all that means is I get the fame more than most people.

00:22:15.960 | - Can we also comment on, from the individual,

00:22:19.600 | consumer of speech?

00:22:21.200 | There's a kind of sense that freedom of speech

00:22:26.400 | means you should be forced to read all of it.

00:22:30.120 | Freedom of speech versus freedom of reach.

00:22:33.040 | We as consumers of speech, do we have the right

00:22:35.800 | to select what we read?

00:22:37.360 | - We do.

00:22:38.360 | And nobody can force us to sit in a room

00:22:41.760 | and listen to a radio program

00:22:43.320 | that we don't wanna listen to.

00:22:45.080 | Nobody can force us to read a book

00:22:46.920 | that we don't wanna read.

00:22:48.160 | The whole notion of freedom of speech

00:22:51.800 | means that people have autonomy on their choices.

00:22:56.800 | - In order to form a complete mind

00:22:58.760 | and complete human being, there's a kind of tension

00:23:01.760 | of that autonomy versus consuming

00:23:06.520 | as many varied perspectives as possible,

00:23:08.320 | which is underlying the ethic of free speech.

00:23:11.600 | So on college campuses, it seems like a good way

00:23:16.120 | to develop the mind is to get as many perspectives

00:23:18.720 | as possible, even if you don't really want to.

00:23:22.160 | - Well, that is the theory.

00:23:25.360 | Academic freedom is supposed to be

00:23:30.240 | the highest degree of free speech.

00:23:32.320 | You should be able to entertain all kinds of hateful,

00:23:38.720 | threatening ideas, and the way I put it is,

00:23:42.600 | there's something wrong when you can say something

00:23:46.640 | with complete abandon without any fear in Harvard Square,

00:23:51.200 | whereas on the other side of the fence,

00:23:52.800 | you can't say it in Harvard Yard.

00:23:54.560 | It should be the opposite.

00:23:56.000 | And what happens is universities,

00:24:00.520 | from the best to the worst, from the most famous

00:24:03.760 | to the least well-known, have been taken over

00:24:06.640 | by administrators.

00:24:08.520 | Administrators do not really subsume academic values.

00:24:13.560 | They know nothing about the Constitution.

00:24:15.440 | They know nothing about free speech.

00:24:16.840 | They know nothing about academic freedom.

00:24:19.240 | They feel that their job is to keep order.

00:24:21.600 | And so they develop speech codes, kangaroo courts,

00:24:27.600 | to enforce the speech codes,

00:24:29.340 | and these are very dire developments.

00:24:32.680 | I wrote about them in the Shadow University in '98.

00:24:36.640 | And tried to deal with them in 1999 when I started FIRE,

00:24:41.640 | co-started FIRE, and I would FIRE,

00:24:46.880 | the reason I'm running currently for the Harvard Board

00:24:51.360 | of Overseers is what I'd like to do is convince

00:24:54.360 | the Harvard Corporation, so-called president and fellows

00:24:58.240 | of Harvard College, the chief governing board

00:25:01.080 | of the university with the real power,

00:25:04.280 | the Board of Overseers is a secondary body,

00:25:06.920 | but quite influential, to FIRE 95% of the administrators.

00:25:11.920 | It would have a salutary effect on the academics

00:25:17.600 | of the university, it would have a salutary effect

00:25:19.760 | on free speech and academic freedom.

00:25:21.960 | It would cut tuitions by about 40%,

00:25:24.760 | and it would create a whole different atmosphere

00:25:28.940 | on the campus, and the same could be said of MIT

00:25:31.880 | or any other place.

00:25:33.920 | I think administrators are a very bad influence

00:25:38.920 | on American higher education.

00:25:44.240 | - Can you sort of elaborate the intuition

00:25:46.960 | of why this thing that you call administrative bloat

00:25:51.400 | is such a bad thing for a university?

00:25:53.200 | - Well, first of all, just in terms of the cost

00:25:57.360 | of maintaining, there are more administrators

00:26:00.520 | in American higher education than there are faculty members.

00:26:04.200 | The cost is enormous.

00:26:06.240 | Number two, they are inimical to the teaching enterprise,

00:26:11.240 | and they feel that their job is to control things,

00:26:17.680 | to make sure there are no problems,

00:26:19.760 | that nobody's feelings are hurt.

00:26:21.400 | Being called before a dean because you said something

00:26:29.860 | that insulted somebody is something that shouldn't happen

00:26:33.000 | in American higher education, yet it happens

00:26:34.920 | because you have these administrators

00:26:36.440 | who think it's their job to protect people

00:26:39.720 | from being insulted.

00:26:40.760 | You insult a black student, you insult a woman.

00:26:44.600 | There's a disciplinary hearing.

00:26:46.920 | Well, there shouldn't be.

00:26:48.160 | Black people are accustomed to being insulted.

00:26:54.760 | Jews are accustomed to being insulted.

00:26:57.560 | Women are accustomed to being insulted,

00:26:59.860 | and it's very good to know who doesn't like you.

00:27:03.900 | It's useful.

00:27:04.940 | It is essential information to know who doesn't like you.

00:27:09.940 | If everybody is forced to say I love you

00:27:12.020 | and nobody can say I hate you,

00:27:13.740 | you get a false view of what life is all about.

00:27:16.660 | - Outside of the university.

00:27:17.940 | - Outside the university.

00:27:19.020 | I mean, you do graduate eventually.

00:27:21.540 | - And that's ultimately the mission of the university

00:27:26.180 | is to prepare you to make you into a great human being,

00:27:29.080 | into a great leader that can take on

00:27:30.620 | the problems of the world.

00:27:31.540 | - Correct, and you don't do it

00:27:33.140 | by treating you like a little flower.

00:27:36.500 | - But what role does the university

00:27:38.060 | have to protect students?

00:27:40.080 | To women, African Americans, anybody, Jews,

00:27:44.420 | anybody who can be a victim of hate speech?

00:27:47.420 | - They protect you from physical assault.

00:27:50.660 | If somebody physically assaults you,

00:27:53.140 | then they get punished,

00:27:56.260 | but they shouldn't protect you against insult

00:28:00.580 | because that is a violation of academic freedom,

00:28:03.220 | the freedom of the insulter to insult you.

00:28:05.980 | And also, as I said, it's very useful

00:28:08.940 | to know who doesn't like you.

00:28:10.620 | It's useful for the so-called victim.

00:28:13.340 | I think it's essential.

00:28:14.620 | I wanna know who doesn't like me.

00:28:17.460 | It's as important to me as knowing who likes me.

00:28:20.940 | - But do you also believe in this open space of discourse

00:28:25.380 | that the insulter will eventually lose?

00:28:28.140 | - I think that's true.

00:28:29.260 | I think the insulter eventually

00:28:31.980 | will wear out his or her welcome.

00:28:33.800 | I do, but I like to know who the insulter is.

00:28:38.340 | - 'Cause it gives you a deeper understanding

00:28:41.300 | of human nature.

00:28:42.180 | - Yeah, and usually, by the way,

00:28:44.580 | my experience has been that the insulters

00:28:46.780 | have generally not been as smart

00:28:48.340 | as the people they've insulted.

00:28:50.500 | And that's probably one of the reasons they insult them

00:28:53.220 | because they feel inferior.

00:28:55.700 | - Yeah.

00:28:56.540 | - I mean, I'm not trying to be a psychoanalyst here,

00:28:59.620 | but a lot of the people who are the haters

00:29:02.140 | are pretty low down in the intellectual scale.

00:29:06.600 | - Anyway, 95% of administration,

00:29:10.240 | you would fire, you're calling to fire 95%

00:29:15.060 | of the administration. - Correct.

00:29:16.500 | - People should know.

00:29:17.660 | I think people that don't really think about the structure,

00:29:22.380 | the way the universities work,

00:29:24.180 | are not familiar, I think,

00:29:26.820 | with the fact that administration,

00:29:28.620 | there's a huge bloat of administration.

00:29:31.100 | You know, when you think about

00:29:32.260 | what makes a great university,

00:29:33.460 | it's about the students, it's about the faculty,

00:29:35.380 | it's about the people that do research,

00:29:36.980 | if it's a research university.

00:29:38.500 | They don't think about the bureaucracy

00:29:41.440 | of meetings and committees and rules

00:29:43.940 | and paperwork and all that,

00:29:46.140 | and all the people that are involved

00:29:47.740 | with pushing that kind of paper.

00:29:49.300 | And there's a huge cost to that,

00:29:51.060 | but it also slows down and suppresses

00:29:55.100 | the beautiful variety that makes the university great,

00:29:58.740 | which is the teaching, the student life,

00:30:01.740 | the protests, the clubs,

00:30:05.940 | all the fun that you can have in a university,

00:30:07.740 | all the varied kind of exploration,

00:30:09.560 | which you can't really do once you graduate.

00:30:11.500 | - Correct.

00:30:12.340 | - It's the place, the university's a place

00:30:13.540 | to really explore.

00:30:15.540 | - In every single way.

00:30:16.660 | So let me just talk about this important thing,

00:30:20.460 | because I'm very fortunate to have contacted you,

00:30:24.260 | almost by accident, in a very important moment in your life.

00:30:27.620 | You're running for the Harvard Board of Overseers.

00:30:32.620 | What is this board, how much power does it have,

00:30:36.580 | and what would you do if elected?

00:30:38.380 | - Okay, first of all, I have a prediction.

00:30:41.380 | - Yes.

00:30:42.220 | - That in about five years,

00:30:43.140 | they're gonna probably change the name

00:30:44.460 | because overseers reminds people of the slavery era.

00:30:48.380 | - Yes.

00:30:49.220 | - And we're in such a politically correct era now

00:30:52.100 | that the English language is being restricted,

00:30:54.980 | corrupted is the way I put it,

00:30:57.140 | because certain words are forbidden.

00:31:01.140 | We have some problems in this country,

00:31:03.340 | and I think part of the problem is the educational system

00:31:07.340 | has lost the sense of what academic freedom

00:31:09.700 | and free speech were all about.

00:31:13.340 | And I think it's essential that the educational system

00:31:18.260 | begin to take more seriously

00:31:20.580 | what free speech and academic freedom really are.

00:31:24.220 | That's why I'm running for the Harvard Board of Overseers.

00:31:27.140 | - So let me just linger on the role of the administration

00:31:32.140 | in protecting free speech.

00:31:34.540 | So what often happens, I think you've written about this,

00:31:37.020 | is there's going to be a few,

00:31:39.180 | maybe a small number of hypersensitive students

00:31:41.380 | and faculty that protest.

00:31:43.100 | So how does Harvard administration resist the influence

00:31:47.980 | of those hypersensitive protesters in protecting speech

00:31:52.980 | and protecting even hate speech?

00:31:55.620 | - Harvard has done fairly well

00:31:58.340 | under the presidency of Lawrence Bacow.

00:32:01.780 | I have had a couple of meetings with Bacow.

00:32:05.780 | I like Bacow.

00:32:09.220 | I have donated to Harvard a print of my late wife,

00:32:14.220 | took a picture of Bob Dylan and Allen Ginsberg

00:32:17.380 | when the Rolling Thunder Review got to Harvard Square,

00:32:21.580 | and it's sort of an iconic photograph.

00:32:24.780 | She called it the music lesson 'cause it's got Dylan

00:32:27.940 | teaching Ginsberg how to play the guitar.

00:32:30.940 | And I donated one of those to Harvard.

00:32:33.980 | It's hanging in Bacow's office.

00:32:37.580 | The new president, Claudine Gay,

00:32:40.700 | is not known for respecting academic freedom

00:32:43.500 | and free speech.

00:32:45.220 | People have said to me, "Well, give her a chance."

00:32:46.940 | Well, I'm willing to give her a chance,

00:32:49.140 | but she does have a record.

00:32:51.140 | And she's a bureaucrat.

00:32:53.060 | I don't think she believes in free speech

00:32:55.780 | and academic freedom.

00:32:57.300 | I think she's a progressive, not a liberal.

00:32:59.740 | I'm not happy with the appointment of Claudine Gay

00:33:07.020 | and it has made more essential my attempt

00:33:10.780 | to get on the Board of Overseers.

00:33:13.300 | - So let's talk about the Board of Overseers

00:33:15.820 | and your run for it, the specifics, actually.

00:33:19.940 | It would be nice because I think you're a write-in candidate

00:33:24.940 | and the election is over on May 16th.

00:33:28.780 | - Yes.

00:33:30.660 | - And I think there are specifics.

00:33:32.320 | I'll probably give them in the intro.

00:33:34.180 | I'll give links to people,

00:33:35.340 | but the specifics are complicated.

00:33:37.500 | Let me just mention that you have to be Harvard alumni,

00:33:42.500 | so graduated from Harvard.

00:33:45.060 | - You have to, in order to run and in order to vote.

00:33:47.300 | - In order to vote.

00:33:48.340 | And the process, I imagine, is not trivial,

00:33:50.980 | but this is done online and if you're an alumni,

00:33:55.980 | you should have received an email

00:33:57.900 | from a particular email address,

00:33:59.700 | harvard@mgelectionservicescourt.com,

00:34:03.500 | and presumably there's a way to get some validation number

00:34:07.740 | from that email and then you go online,

00:34:09.980 | you enter that validation number and you vote.

00:34:12.340 | And to vote for Harvey, you have to enter his name

00:34:16.300 | correctly, Harvey Silverglate, and spell it correctly.

00:34:21.620 | Obviously, I'm imagining this because I'm MIT, not Harvard,

00:34:26.820 | so I'm imagining the process is not trivial.

00:34:29.780 | You have to click on things,

00:34:30.940 | you have to follow instructions that are not trivial.

00:34:35.940 | And I'll also provide an email if the process is painful,

00:34:41.940 | it doesn't work for you, that you can email.

00:34:43.900 | Email harvard@mit.edu and so on.

00:34:48.300 | I'll provide all the links.

00:34:49.660 | But is there something else you can say

00:34:51.740 | about the voting process, what you're running on?

00:34:55.460 | - This is my second run.

00:34:58.460 | The first time I got enough signatures to get on the ballot,

00:35:03.220 | then the Harvard Alumni Association sent out a letter

00:35:08.220 | to all living Harvard alums, recommending that they vote

00:35:16.140 | for the officially nominated candidates

00:35:20.660 | that excluded two petition candidates of whom I was one.

00:35:26.260 | And I wrote to the Alumni Association and I said,

00:35:31.260 | "You have now sent out the curriculum VTIs

00:35:35.780 | and the policy positions

00:35:37.660 | of all the officially nominated candidates.

00:35:41.020 | There are two petition candidates on the ballot.

00:35:44.380 | I would like to be able to send out my positions

00:35:48.380 | to the voters."

00:35:52.660 | They wrote me back saying, "Our policy is to only send out

00:35:57.620 | the policy positions and the platforms

00:36:00.820 | of officially nominated candidates.

00:36:02.580 | Can you believe that?"

00:36:04.580 | Well, this is a liberal arts college, right?

00:36:07.720 | Where from the clash of ideas, truth emerges.

00:36:12.460 | Well, really?

00:36:13.500 | This is what I call Harvard's not so subtle means

00:36:18.940 | of candidate suppression, not voter suppression,

00:36:21.860 | candidate suppression.

00:36:23.300 | And everybody can vote, but not everybody can run.

00:36:28.840 | It ill becomes a liberal arts college

00:36:34.740 | where the clash of ideas will produce the truth.

00:36:38.100 | Well, what about the clash of ideas

00:36:39.340 | on the board of overseers?

00:36:41.820 | The board of overseers is important.

00:36:43.580 | It doesn't have the same power and authority

00:36:46.580 | as the Harvard Corporation,

00:36:48.060 | the so-called president and fellows of Harvard College,

00:36:51.700 | but it's very influential and very important.

00:36:55.740 | And it would be a great perch for me

00:36:57.460 | to try to exert influence for the university

00:37:00.900 | to get back to where it was

00:37:03.360 | before it was taken over by the administrators.

00:37:05.820 | - Well, I'm pretty sure that most of Harvard alumni,

00:37:09.220 | most of the students currently going to Harvard,

00:37:11.380 | most of the faculty at Harvard probably stand behind

00:37:14.700 | the ideas and the ideals that you stand behind.

00:37:17.660 | - Yep.

00:37:18.700 | - The people that love Harvard and what it stands for.

00:37:21.520 | - See, the alumni were educated in an era

00:37:23.820 | where these concepts were taken more seriously

00:37:27.860 | and before the administrators took over.

00:37:32.460 | So I do think if I get my message out,

00:37:34.460 | I'm gonna win the seat.

00:37:35.980 | And if I win the seat, I will have a great perch

00:37:39.900 | for trying to convince the real power that be,

00:37:44.300 | which is the Harvard Corporation,

00:37:46.440 | to do the things that I'm suggesting.

00:37:48.820 | Get rid of 95% of the administrators,

00:37:51.260 | get rid of the speech codes, reduce tuition by 40%.

00:37:55.500 | All of these salutary benefits.

00:37:58.520 | Can you imagine if Harvard became

00:38:01.380 | the most affordable college in the United States?

00:38:03.940 | - Well, the affordability is another aspect,

00:38:07.500 | but I think before that, just the freedom of expression,

00:38:12.040 | freedom of speech, freedom of thought

00:38:14.060 | at America's greatest universities,

00:38:15.940 | I think is something that everybody would agree on.

00:38:18.940 | It would have a tremendous effect on the whole country.

00:38:23.940 | - And is there something to say about the details

00:38:29.740 | of how difficult it is for alumni to vote?

00:38:33.740 | You have experience with this?

00:38:35.660 | - You could vote online or you can vote by paper ballot.

00:38:39.140 | You could request a paper ballot.

00:38:40.960 | And all I could say is that the hard part

00:38:44.900 | is getting the message out.

00:38:47.340 | My name doesn't appear on the ballot

00:38:49.300 | 'cause I couldn't get enough signatures.

00:38:52.060 | - Well, Harvey, Harvey Silverglate.

00:38:55.260 | - S-I-L-V-E-R-G-L-A-T.

00:38:58.300 | You know, when my grandparents arrived from Russia,

00:39:01.940 | the name in Russian was something like Zilberglit.

00:39:08.300 | And the immigration officer had several choices.

00:39:12.020 | He could have said Silvergate.

00:39:14.300 | Silver and gate are real English words.

00:39:18.140 | He could have said Silverglade, G-L-A-D-E.

00:39:21.940 | Those are real English words.

00:39:23.320 | That's how my name is often dispelled,

00:39:25.380 | either Silvergate or Silverglade.

00:39:28.140 | Silverglate is a nonsense syllable.

00:39:31.540 | And why the immigration officer chose

00:39:34.820 | to transliterate Zilberglit as Silverglade,

00:39:39.440 | I'll never understand.

00:39:41.220 | And it is the cause of endless mistakes in my name.

00:39:45.820 | - Well, the fundamental absurdity of life

00:39:49.700 | is also the source of its beauty.

00:39:51.580 | - Yes.

00:39:52.420 | - Anyway, we shall spell it out,

00:39:55.020 | and we shall get, yell loud and wide

00:40:00.020 | that everybody who has ever graduated from Harvard

00:40:02.740 | should vote for you if they believe in the ideals

00:40:05.420 | of the great American universities,

00:40:06.900 | which I think most people do.

00:40:10.540 | - Let me also ask about diversity,

00:40:14.020 | inclusion, and equity programs.

00:40:15.540 | You've had a few harsh words to say about those.

00:40:20.420 | The idea of diversity, I think, is a beautiful idea.

00:40:23.780 | You said that Harvard's idea of diversity

00:40:25.620 | is for everyone to look different and think alike.

00:40:28.820 | - Correct.

00:40:29.660 | - Can you elaborate?

00:40:30.480 | - And be comfortable.

00:40:32.020 | - And be comfortable.

00:40:32.860 | - Yeah.

00:40:33.700 | First of all, it is impossible,

00:40:35.740 | if liberal arts education is taken seriously,

00:40:38.260 | it's impossible for students to feel comfortable.

00:40:41.620 | Why?

00:40:42.780 | Because one of the roles of college

00:40:44.460 | is to challenge all the beliefs that they grew up with,

00:40:47.980 | which mostly are the beliefs inculcated by parents

00:40:51.660 | and by elementary school teachers.

00:40:53.580 | And the idea is to be able to challenge those thoughts,

00:40:59.500 | those ideas.

00:41:01.580 | And if you don't have free speech and academic freedom,

00:41:04.740 | those views get reified.

00:41:07.260 | They do not get challenged.

00:41:08.980 | So it violates the fundamental role

00:41:14.860 | of higher educational institutions

00:41:17.780 | to have any restrictions at all.

00:41:19.840 | That's number one.

00:41:22.400 | Number two, as I think I said earlier,

00:41:27.100 | if people, if students are not allowed

00:41:29.540 | to be frank with one another,

00:41:31.460 | they don't really learn about one another.

00:41:34.700 | And I've given a lot of lectures

00:41:39.700 | in which I said, and I think students now understand it,

00:41:45.100 | I'm much more interested in hearing

00:41:48.420 | from the people who hate me than the people who love me.

00:41:51.340 | I'm much more interested in knowing

00:41:53.300 | who disagrees with me than people who agree with me.

00:41:55.900 | That's how I learn, and that's how they learn,

00:42:01.220 | the clash of ideas,

00:42:03.740 | which is the theory behind the First Amendment.

00:42:06.100 | That truth will somehow emerge, or if not truth,

00:42:10.180 | at least a better truth, a truer truth,

00:42:14.060 | a more useful truth, if ideas are allowed to clash.

00:42:19.060 | - Especially in the structure of a university

00:42:21.140 | where, at least I would say there's some set of rules,

00:42:24.220 | some set of civility.

00:42:25.920 | I think I would rather read Mein Kampf

00:42:29.340 | to understand people that hate.

00:42:31.480 | There is also a quality to disagreement

00:42:34.860 | that we should strive for,

00:42:36.180 | and I think a university is a place

00:42:38.100 | where when disagreement and even hate is allowed,

00:42:41.740 | it's done in a high-effort way.

00:42:44.640 | - You know, somebody asked me once

00:42:45.940 | about what books I would,

00:42:48.900 | what I have as required reading in literature courses,

00:42:52.980 | and I listed Mein Kampf, and they were horrified.

00:42:56.900 | And I said, well, it's one of the most important books

00:42:58.980 | of the 20th century.

00:43:01.020 | I mean, six million Jews died,

00:43:03.380 | an enormous number of other people died

00:43:06.020 | because one guy wrote a book called Mein Kampf

00:43:08.420 | and took it seriously.

00:43:10.460 | It's one of the most important books ever written.

00:43:12.420 | How can an educated person not have at least

00:43:16.820 | breezed through Mein Kampf?

00:43:19.540 | - It's not a great read, though.

00:43:22.220 | - It's not a great read.

00:43:23.460 | He was not a great writer, but you do get a sense

00:43:27.500 | for the sociopath that was Adolf Hitler.

00:43:30.480 | - Yes, because he really acted on the words that he wrote.

00:43:33.880 | - Yeah.

00:43:35.200 | - And it was there, and if people took that work seriously--

00:43:38.440 | - Correct.

00:43:39.280 | - They would have understood.

00:43:40.760 | - It's one of the most important books of the 20th century,

00:43:43.320 | and it's politically incorrect to read it.

00:43:46.960 | It's crazy.

00:43:48.680 | - But can you speak to the efforts

00:43:52.320 | to increase diversity in universities

00:43:57.440 | which I think is embodied in this D-I-E effort

00:44:00.880 | of diversity, inclusion, and equity programs?

00:44:04.160 | Where do they go right?

00:44:06.080 | Where do they go wrong?

00:44:07.440 | - Okay, let me tell you, first of all,

00:44:09.400 | this may surprise a lot of people.

00:44:11.440 | I am opposed to affirmative action,

00:44:15.240 | and I think that what it does

00:44:21.600 | is it labels people by their race,

00:44:27.020 | by their religion, and by their national origin.

00:44:31.000 | Precisely what we don't want people to do

00:44:33.720 | is be pigeonholed in those categories.

00:44:37.560 | The reason that affirmative action has become

00:44:41.520 | the way that universities decide on who gets admitted

00:44:46.160 | is because historically,

00:44:48.160 | people in what's called marginalized groups,

00:44:51.880 | blacks, gays, Hispanics,

00:44:56.560 | have been discriminated against in the admissions process.

00:45:00.460 | Now, what I have suggested

00:45:05.520 | is that instead of affirmative action,

00:45:07.640 | and by the way, here's a prediction.

00:45:10.360 | The Supreme Court is going to abolish affirmative action.

00:45:13.160 | There's a case pending, it's a Harvard case.

00:45:15.480 | There are two cases joined together,

00:45:20.660 | one of a public university and one of a private university.

00:45:23.920 | The private university is Harvard.

00:45:26.540 | I predict that the Supreme Court will vote six to three

00:45:30.260 | to abolish affirmative action.

00:45:31.880 | It is, on its face,

00:45:35.700 | it is a violation of equal protection of the law.

00:45:39.340 | Some groups are favored because of race or ethnicity.

00:45:44.340 | It is a classic violation of equal protection clause.

00:45:49.180 | When affirmative action was approved,

00:45:53.140 | the deciding vote was Justice Sandra Day O'Connor.

00:45:56.860 | She wrote a very famous opinion in which she said,

00:46:00.480 | "I hesitate to vote to keep up,

00:46:04.900 | "to affirm the notion of affirmative action

00:46:07.740 | "'cause it's such an obvious violation of equal protection,

00:46:11.180 | "but we have an urgent problem in the society.

00:46:14.120 | "We are not educating our members

00:46:18.660 | "of racial and ethnic minorities,

00:46:21.740 | "and we have to try to get them into our colleges."

00:46:25.520 | So I think it should be approved for 25 years,

00:46:30.200 | and it should, in 25 years,

00:46:36.820 | it should have performed its role.

00:46:39.580 | Well, it hasn't, and the 25 years is coming up.

00:46:44.100 | I think it's three or four years left.

00:46:47.340 | The Supreme Court is going to abolish it.

00:46:49.240 | You can take my word for that.

00:46:51.700 | 'Cause it's such an obvious violation of equal protection.

00:46:55.420 | Why did affirmative action come into play?

00:46:59.400 | Because the secondary and elementary schools are so bad.

00:47:03.780 | Public secondary and elementary schools are so bad.

00:47:07.480 | Why are they so bad?

00:47:08.620 | Partly because of the control of the teachers union,

00:47:12.380 | as Randy Weingarten runs the public school system

00:47:16.020 | in the United States.

00:47:18.140 | And what I have suggested is that the effort should be to,

00:47:23.140 | this is an emergency, it's a national emergency,

00:47:29.820 | to improve the quality of elementary

00:47:34.820 | and secondary education.

00:47:37.560 | And one way to do it is to hire teachers

00:47:41.940 | who are fabulous teachers,

00:47:43.660 | rather than necessarily members of the union.

00:47:47.380 | I have come to oppose public workers unions.

00:47:52.380 | I am a very strong supporter of unions in the private sector.

00:47:59.220 | Why do I think there's such a difference between unions

00:48:03.900 | in the public sector and the private sector?

00:48:06.820 | In the private sector, management is arguing,

00:48:11.060 | bargaining with its own money

00:48:13.380 | and with the money of shareholders.

00:48:15.980 | In the public sector, there's only one side.

00:48:19.560 | There is the teachers union,

00:48:21.300 | and then there's a school committee

00:48:22.600 | that is dealing with the taxpayers' money, not their own.

00:48:26.260 | And so it's a very skewed power balance.

00:48:31.260 | So as supportive as I am of private sector unions,

00:48:36.660 | I am in opposition of public sector unions.

00:48:40.380 | They're very destructive.

00:48:42.380 | And I think without teachers union,

00:48:46.020 | teachers who are really skilled will be able to get jobs.

00:48:50.060 | They would not have to worry about the seniority

00:48:52.420 | of teachers who long since have given up

00:48:55.100 | really creative teaching.

00:48:57.840 | And we have to improve the public educational system.

00:49:02.240 | I had, my late wife and I,

00:49:06.860 | had a classmate,

00:49:11.220 | we have a son who's now 44

00:49:12.940 | who went to the public schools in Cambridge.

00:49:15.140 | He has a friend, first name Eugene,

00:49:20.980 | who was black kid from Roxbury,

00:49:22.860 | whose mother understood that the schools in Roxbury

00:49:26.180 | were terrible, the schools in Cambridge were pretty good.

00:49:29.780 | He lived in our house,

00:49:31.460 | Monday to Friday, and he went to school with Isaac

00:49:36.780 | in the Cambridge public schools.

00:49:40.020 | Elsa and I would show up to school committee meetings

00:49:42.740 | when there was bargaining between the teachers union

00:49:46.460 | and the school committee.

00:49:47.800 | The teachers union objected to our being there.

00:49:52.940 | We argued we're taxpayers.

00:49:56.180 | We have a kid in the school,

00:49:58.580 | and we have his best friend lives with us

00:50:03.160 | and goes to school with him.

00:50:04.580 | We have a real interest.

00:50:07.460 | And the school committee walked out

00:50:11.740 | of the bargaining session.

00:50:13.580 | The city council then reconsidered its vote,

00:50:16.220 | and they voted that citizens,

00:50:19.260 | taxpayers, parents of kids in the school

00:50:23.460 | could not show up to these negotiation sessions.

00:50:28.460 | I thought that was absolutely outrageous.

00:50:32.000 | But I understood why, because these contracts are crazy.

00:50:37.100 | No sane municipality should enter

00:50:41.740 | into some of these contracts.

00:50:43.340 | And so I have become an opponent

00:50:49.540 | of the National Teachers Association,

00:50:52.940 | the Cambridge Teachers Association.

00:50:56.780 | I don't think there should be unions for public employees,

00:51:01.180 | 'cause there's no real bargaining going on.

00:51:04.420 | And I think that the public school system

00:51:07.620 | will never be improved as long as the teachers are unionized.

00:51:12.620 | - So that, to you, is at the core of the problem

00:51:16.300 | that results in the kind of inequality of opportunity

00:51:21.300 | that affirmative action is designed to solve.

00:51:24.580 | - Correct.

00:51:25.420 | If the educational system in the elementary

00:51:27.900 | and high school levels is improved,

00:51:30.540 | we wouldn't need affirmative action.

00:51:32.700 | These kids would get good educations.

00:51:35.500 | - So from all backgrounds, poor kids in the United States

00:51:39.820 | will get good education if public unions are abolished.

00:51:44.820 | - Correct.

00:51:46.120 | - And but do you--

00:51:47.860 | - And incidentally, the Postal Service

00:51:49.540 | would probably work better too.

00:51:51.100 | - That's a whole other conversation.

00:51:54.700 | But do you, at the core of the problem

00:51:56.780 | of the inequality in universities,

00:52:00.980 | that diversity, inclusion, and equity programs

00:52:03.900 | are trying to solve is the public education system

00:52:07.140 | of secondary education.

00:52:08.700 | - Yes, correct.

00:52:09.620 | Elementary and secondary.

00:52:10.900 | - Elementary and secondary education.

00:52:12.900 | Well then, is there use, what is the benefit,

00:52:16.660 | what is the drawback of DIE,

00:52:20.740 | diversity, inclusion, and equity programs

00:52:22.700 | at universities like Harvard?

00:52:24.300 | - It's an affirmative action, basically.

00:52:27.260 | And what it does is it allows the system

00:52:31.140 | of elementary and secondary education to be bad

00:52:35.180 | because they could say, oh, we got our kids into Harvard.

00:52:38.280 | Yes, but you haven't educated them.

00:52:40.140 | And it covers up the wound.

00:52:43.780 | And I think we will never improve

00:52:47.260 | as long as we're able to cover up the wound.

00:52:49.260 | And as I said, affirmative action is gonna be abolished

00:52:51.940 | by the Supreme Court.

00:52:53.740 | It's a clear violation of equal protection,

00:52:56.340 | which is what's Sandra Day O'Connor understood,

00:52:59.740 | but ignored intentionally, but as an experiment.

00:53:04.540 | And I believe it's gonna be abolished,

00:53:08.140 | and that's gonna force the elementary

00:53:12.340 | and high schools to get serious.

00:53:15.300 | - Do you see the same issues that you discuss now

00:53:17.300 | at Harvard, at MIT?

00:53:19.900 | We're here in Boston, so I have to talk

00:53:21.420 | about the great universities here in Boston.

00:53:23.620 | You've written about MIT.

00:53:25.380 | I'm, it's a university I love.

00:53:27.500 | I'm a research scientist there.

00:53:29.780 | Do you see the same kind of issues there?

00:53:31.460 | - Yes, I do.

00:53:32.500 | - Do you remember, can you explain the case

00:53:34.780 | of Dorian Abbott Lecture that was canceled at MIT?

00:53:38.380 | - Yeah, well, you know, this is not the only,

00:53:42.540 | it's not the only incident.

00:53:45.060 | There have been incidents all around the country

00:53:47.460 | of academics, professors who have views

00:53:52.180 | that don't comport with the, as the great Lillian Hellman,

00:53:56.460 | another friend of my late wife, said they,

00:53:59.860 | she said she refused to cut her garments

00:54:04.060 | in order to fit the fashions of the day.

00:54:06.500 | Dorian Abbott didn't cut his suit

00:54:10.500 | to fit the fashions of the day, his intellectual suit.

00:54:14.380 | And so he was, this has happened at Princeton,

00:54:17.580 | this has happened at Harvard, this has happened at MIT.

00:54:21.140 | The great universities in the country have decided

00:54:25.380 | that the clash of ideas is not such a good idea

00:54:28.340 | because some people's feelings will be hurt.

00:54:31.640 | Well, this is, there was quite a revolt against it.

00:54:36.140 | Fire sounded the alarm.

00:54:40.620 | And then in the end, the universities were,

00:54:43.580 | I believe Abbott was invited to come back.

00:54:45.580 | I think he turned them down.

00:54:48.940 | He shouldn't have turned them down, but he did.

00:54:51.580 | And when the light is cast upon these situations,

00:54:58.180 | the universities back down 'cause they're so embarrassed.

00:55:01.100 | And the newspapers, because newspapers depend

00:55:04.780 | on the First Amendment in order to exist,

00:55:08.140 | newspapers tend to give pretty good publicity

00:55:10.340 | to these cases of censorship.

00:55:11.820 | - So they grill the universities.

00:55:13.620 | - Yes.

00:55:14.460 | - So they really emphasize, they catalyze the embarrassment.

00:55:18.060 | - Yes.

00:55:18.900 | - So is that one of the ways,

00:55:19.860 | is that the best way to fight all of this?

00:55:21.620 | - Yes, sunshine is the best disinfectant.

00:55:24.060 | - You've written about MIT's connection to Jeffrey Epstein.

00:55:27.660 | - Yes.

00:55:28.500 | - He was well-connected at MIT and at Harvard.

00:55:31.200 | What lessons do you draw about human nature,

00:55:36.020 | about universities, about all of this from this saga?

00:55:39.460 | - Let me say this.

00:55:40.520 | I believe that universities, if somebody wants to,

00:55:45.220 | for example, donate to a university and donates

00:55:49.180 | on the requirement that the building be named after them,

00:55:53.900 | if the university is taking donations

00:55:57.020 | and the person is funding a building,

00:55:59.820 | and wants the building named after them,

00:56:03.060 | the building should be named after him, him, or them.

00:56:06.280 | Harvard is facing this now with the Sackler building

00:56:09.240 | because the Sacklers have become now a persona non grata

00:56:13.580 | because of their role in producing the opioids

00:56:16.580 | that caused the huge scandalous opioid addiction.

00:56:21.580 | There are people who want to remove the name Sackler

00:56:25.300 | from the Sackler Art Museum at Harvard.

00:56:27.260 | Larry Bacow, the president of Harvard,

00:56:30.900 | to his credit has refused to do that.

00:56:35.620 | And if it reminds people that the money was earned

00:56:42.100 | through selling opioids, that's good.

00:56:45.660 | That's good that people understand

00:56:47.340 | that that's where the Sacklers got their money.

00:56:49.200 | They should be reminded.

00:56:51.140 | In my undergraduate alma mater, Princeton,

00:56:56.140 | there's a movement to remove the name Woodrow Wilson

00:57:00.740 | because Woodrow Wilson was president of Princeton

00:57:02.860 | before he became governor of New Jersey,

00:57:04.780 | before he became president of the United States.

00:57:07.020 | How he got to be governor of New Jersey

00:57:08.660 | was he was so insufferable that the trustees of Princeton

00:57:11.940 | got him the nomination to run for governor of New Jersey.

00:57:15.260 | They had said, "We gotta get this guy out of here."

00:57:17.820 | And not 'cause he was anti-black and anti-Semitic

00:57:23.140 | as the trustees were as well,

00:57:24.620 | but because he just was insufferable.

00:57:26.980 | He drove the faculty crazy and they got him out.

00:57:30.920 | And so Princeton was thinking of changing the name.

00:57:36.980 | I wrote a letter to President Eisgruber at Princeton

00:57:39.780 | saying, "This is part of the university's history.

00:57:43.880 | "You wanna rewrite history falsely?

00:57:48.760 | "Woodrow Wilson was the president of this institution.

00:57:51.540 | "He was one of your predecessors.

00:57:53.460 | "He never answered me either."

00:57:55.160 | I think these people, they know they have no answer.

00:57:59.900 | The reason I didn't get a response

00:58:01.780 | from President Eisgruber is the same as the reason

00:58:04.820 | I didn't get a response from the headmaster

00:58:06.940 | of Milton Academy.

00:58:08.500 | They understand that what they're doing is violative

00:58:12.460 | of the fundamental precepts of academic institutions.

00:58:16.340 | They're ashamed that they feel they have no choice

00:58:19.580 | because they feel that they would be criticized

00:58:22.540 | for racism, homophobia, blah, blah, blah, blah, blah, blah.

00:58:26.300 | - Criticized by how many people?

00:58:28.260 | - Well, they feel that they would be criticized

00:58:30.900 | by students and parents and donors.

00:58:33.820 | I disagree with that.

00:58:34.900 | I actually think there are more people out there

00:58:37.260 | that agree with me than agree with them.

00:58:40.020 | - Yeah, by a large margin.

00:58:41.460 | - By a large margin in what I call the real world,

00:58:44.820 | which is the world outside the campus.

00:58:47.380 | But academics are afraid they'd be criticized.

00:58:50.700 | They're incredibly thin-skinned.

00:58:52.180 | When I say academics, I mean academic administrators.

00:58:54.860 | They're very thin-skinned, politically correct,

00:58:57.380 | holier-than-thou.

00:58:58.760 | As I said, I would fire 95% of them

00:59:03.380 | and I would be more careful in who I elected

00:59:07.660 | to lead these institutions.

00:59:09.820 | I said, "Pulling gay is probably gonna be

00:59:11.700 | "a disaster at Harvard."

00:59:13.980 | - So it takes guts, it takes courage

00:59:16.460 | to be in the administration when the task

00:59:20.460 | of protecting the freedom of speech is there.

00:59:22.460 | And also, which in part requires you to admit

00:59:27.460 | and to uphold the mistakes you have done in the past.

00:59:31.300 | - Correct.

00:59:32.140 | - Not to hide them.

00:59:33.140 | - Correct.

00:59:33.980 | - And that to you, I mean, Jeffrey Epstein,

00:59:36.980 | for Harvard and for MIT, is a very recent mistake.

00:59:39.980 | - Well, there's a debate whether it's a mistake.

00:59:42.820 | They took money from him.

00:59:44.500 | - Yes.

00:59:45.340 | - Okay.

00:59:46.380 | Is it a mistake to take money from bad people?

00:59:48.800 | Do you have to do a morals test of a potential donor?

00:59:54.060 | I don't think so.

00:59:56.500 | - It's complicated because--

00:59:59.540 | - If there are no conditions attached to it,

01:00:01.820 | I think it's emotionally complicated.

01:00:03.860 | I don't think that it is rationally complicated.

01:00:06.900 | It's emotionally complicated.

01:00:10.380 | It's particularly complicated if they want naming rights.

01:00:13.600 | - Yes.

01:00:15.420 | - You know, the Jeffrey Epstein Biological Laboratory,

01:00:19.260 | that would be a problem for most universities.

01:00:23.840 | I don't think that naming rights have to be given

01:00:29.100 | to somebody that you don't think is worthy

01:00:31.860 | of having their name.

01:00:32.740 | I think the university has the right to say,

01:00:34.700 | "No, we'll take your money,

01:00:36.320 | "but we will not name the building after you."

01:00:39.020 | I think they have a right to do that.

01:00:41.060 | - There's some degree in which you whitewash the name,

01:00:43.900 | though, if you, not with naming rights, but--

01:00:48.900 | - You take the money?

01:00:50.060 | - If you take the money, it allows the person

01:00:52.660 | in public discourse to say that they're collaborating,

01:00:57.380 | they're working together with Harvard and with MIT.

01:00:59.540 | - Well, I have a problem with universities

01:01:02.220 | making morals tests of donors,

01:01:06.340 | because not every donor is as bad as Epstein,

01:01:09.740 | but some of the donors made their money in industry

01:01:13.340 | by being rapacious, by paying low wages,

01:01:18.340 | by exploiting people.

01:01:21.380 | - You can make the case that accepting money

01:01:25.500 | from the Department of Defense, from DARPA,

01:01:28.020 | from the United States organizations

01:01:29.820 | that contributed to waging war

01:01:32.700 | and killing hundreds of thousands of civilians

01:01:34.780 | over the past few decades.

01:01:36.060 | - Correct.

01:01:37.100 | - Folks like the tenured professor Noam Chomsky

01:01:39.860 | will make the case that that is far more evil

01:01:42.380 | than accepting money from Jeffrey Epstein.

01:01:45.500 | - Yes.

01:01:46.340 | - Still, Jeffrey Epstein is a known pedophile.

01:01:51.420 | - Yes.

01:01:53.580 | - So that's why I say I would not give him naming rights.

01:01:57.740 | I think the university has the autonomy

01:01:59.700 | to not give naming rights,

01:02:02.200 | but I think that giving morals tests to donors

01:02:05.260 | is a Pandora's box.

01:02:08.260 | - What do you think about the aftermath

01:02:09.860 | of the Jeffrey Epstein saga?

01:02:11.460 | It feels like, I'm not familiar with Harvard's response,

01:02:15.300 | but MIT's response seemed to fire a few scapegoats,

01:02:21.020 | and it didn't seem like a genuine response

01:02:23.500 | to the evils that human beings are capable of,

01:02:29.300 | sort of rising to the surface,

01:02:33.100 | the description in a fully transparent way

01:02:35.380 | of all the interactions that happened with Jeffrey Epstein

01:02:38.100 | and what that means.

01:02:39.440 | Yeah, what that means about the role of money

01:02:43.380 | in universities, what that means about just

01:02:45.340 | human beings in power.

01:02:46.580 | - Money is essential to run a university.

01:02:50.880 | One of the reasons it's essential is because

01:02:52.820 | the university is artificially,

01:02:56.300 | artificially requires huge amounts of money,

01:03:00.460 | and that's partly because of the administrative army

01:03:03.140 | that they support.

01:03:07.180 | And they would be less dependent

01:03:10.080 | on the Jeffrey Epsteins of the world

01:03:12.100 | if they didn't have,

01:03:13.300 | so it's sort of all part of the same circle.

01:03:17.900 | - But there's a tension here.

01:03:19.900 | You're saying we shouldn't be putting a morals test

01:03:22.820 | on money, but actually if you make,

01:03:25.140 | if you expand the amount of money needed

01:03:28.460 | to run the university, you're going to make

01:03:30.500 | less and less, more and more unethical decisions

01:03:33.660 | in terms of accepting-- - Correct.

01:03:34.500 | And since then, I am flexible enough to say

01:03:37.420 | that I don't think I would name a building

01:03:39.100 | after somebody who is truly evil.

01:03:40.700 | I think the university has the right

01:03:44.580 | to limit the naming rights for a donor.

01:03:49.680 | If I was an absolutist, I would not even say that.

01:03:53.920 | I'm not an absolutist.

01:03:55.360 | I have my limits, and that's one of them.

01:04:00.020 | The Jeffrey Epstein Biological Laboratory,

01:04:03.720 | it's a little bit much.

01:04:04.960 | - It feels like there should be a requirement on,

01:04:09.080 | there should be moral requirements

01:04:11.720 | on who to accept money from,

01:04:13.520 | but the question is, the concern you have

01:04:15.440 | is about who gets to decide,

01:04:18.000 | and what's the alternative?

01:04:19.840 | - Correct, I think there is no alternative.

01:04:22.360 | I think that turning down donation

01:04:25.680 | because you don't approve of the conduct

01:04:29.120 | of the donor is a Pandora's box.

01:04:31.980 | - But I'm just sickened by the fact

01:04:37.840 | that an evil human being was allowed to walk

01:04:40.640 | in the halls of a university I love.

01:04:42.720 | So what do we do with that?

01:04:46.080 | - Well, are you telling me

01:04:47.760 | that none of the students are evil?

01:04:49.040 | Are you telling me none of the faculty members are evil?

01:04:51.040 | Are you telling me none of the administrators are evil?

01:04:53.840 | - But that doesn't, sure, sure.

01:04:58.520 | So scapegoating, saying that Jeffrey Epstein is evil

01:05:02.440 | can help us forget, can aid us in forgetting

01:05:05.800 | that there is other evil in the world,

01:05:07.760 | and some of it might be roaming still,

01:05:11.640 | the halls of MIT and Harvard.

01:05:13.600 | - Hey, listen, I won't tell you the name,

01:05:15.860 | but I represented somebody in the MIT administration

01:05:19.200 | a few years ago who was charged

01:05:22.400 | with sexual improprieties against students.

01:05:26.260 | And as a lawyer, I represented that person.

01:05:30.380 | People said, "How could you represent?"

01:05:34.120 | Some of the people I represented, bad people.

01:05:36.640 | Say, "How can you represent?"

01:05:38.360 | I said, "Well, if I was a cardiologist

01:05:40.880 | "and this person had a heart attack on the street

01:05:42.840 | "and I didn't deliver CPR,

01:05:44.880 | "I would have my license taken away."

01:05:47.660 | I'm a lawyer.

01:05:49.000 | The only difference between my obligation

01:05:50.880 | and the doctor's obligation is the Constitution

01:05:53.680 | gives people the right to assistance of counsel.

01:05:55.840 | They don't have, the Constitution says nothing

01:05:57.960 | about the assistance of cardiologists.

01:06:00.420 | I have a very high duty to represent unpopular people.

01:06:04.580 | Well, I think I apply the same test to the college donors.

01:06:09.120 | The university should not have a morals test.

01:06:14.160 | Who's money to take?

01:06:15.340 | I do draw a line about naming rights of buildings.

01:06:21.000 | And I say that's an inconsistency with my absolutism.

01:06:26.760 | But I just, emotionally, I just can't deal with having,

01:06:29.960 | you know, as I said,

01:06:30.960 | the Jeffrey Epstein Biological Laboratory.

01:06:33.360 | - Well, for me, emotionally,

01:06:35.640 | there's nothing that sickens me more in the university

01:06:38.440 | than the abuse of power.

01:06:40.720 | - Right, and there's an awful lot of people

01:06:42.640 | who abuse power at a university.

01:06:44.560 | - And especially when it comes to abuse power of students.

01:06:47.960 | So sexual harassment,

01:06:49.400 | so in the realm of sexual abuse of power,

01:06:52.800 | and all kinds of other abuses of power.

01:06:54.720 | - Well, it is a crime to use one's power position

01:06:58.440 | in order to take sexual advantage of a student.

01:07:00.720 | It's a crime.

01:07:01.640 | This is not a close question.

01:07:05.020 | - Yeah, but there's a legal crime

01:07:08.440 | and there's a deeply ethical crime,

01:07:12.000 | and there's an emotional response that I have.

01:07:15.080 | You are a good lawyer and perhaps a good man

01:07:19.240 | to want to defend some folks who are evil in this world.

01:07:23.360 | I don't think I have that emotional fortitude.

01:07:26.120 | - Well, then you shouldn't be a criminal defense lawyer

01:07:27.920 | or a cardiologist.

01:07:29.260 | - I think you're right.

01:07:31.360 | I'm still deeply sickened by Jeffrey Epstein

01:07:36.400 | and the faculty, the administration,

01:07:39.400 | that still might be in these great American universities

01:07:42.080 | that are abusing their power in small ways and big ways.

01:07:45.400 | But that's human nature.

01:07:47.040 | You get a little bit of power

01:07:48.640 | and you're a bad man or a bad woman

01:07:51.240 | and you take advantage of it.

01:07:52.560 | - Yep.

01:07:53.440 | - We see that in the smallest of ways

01:07:54.960 | and in the biggest of ways

01:07:56.240 | in institutions and regimes all across the world.

01:08:01.440 | (sighs)

01:08:04.080 | Boy, Harvey, it's a complicated situation.

01:08:07.160 | - Well, it's a complicated world

01:08:08.800 | and it's complicated to be a human being

01:08:11.320 | and this is nothing new.

01:08:12.920 | - And we should talk about it without restriction.

01:08:16.040 | All right, just to linger on liberal arts,

01:08:19.440 | in 2014 and probably still today,

01:08:22.800 | you wrote that liberals are killing the liberal arts.

01:08:25.560 | - Yes.

01:08:26.400 | - So can you explain?

01:08:27.560 | - Yes, the problem with, I'm a political liberal.

01:08:30.220 | The problem with the political left

01:08:36.400 | is that it has divided

01:08:39.400 | between what's called progressives and liberals.

01:08:43.780 | Liberals are people of the left

01:08:47.120 | who believe in the First Amendment,

01:08:50.040 | an absolute First Amendment,

01:08:52.280 | and in due process of law.

01:08:54.040 | And the problem with what progressives now

01:09:00.000 | in the pursuit of equality,

01:09:04.880 | what they view as equality,

01:09:06.840 | they're willing to bend those rules.

01:09:10.000 | And this movement actually started in Brandeis.

01:09:13.280 | The critical, it's the critical race theory.

01:09:18.880 | It started, Herbert Marcuse was a professor at Brandeis

01:09:23.920 | and he came up with this theory.

01:09:26.500 | The theory was this, this is right out of Orwell.

01:09:30.360 | In order to create true equality in a society

01:09:33.840 | where you have some downtrodden

01:09:35.520 | and some who are the uber-mention,

01:09:37.940 | in order to create real equality,

01:09:43.240 | you have to reduce the rights of the upper classes

01:09:48.080 | and artificially increase the rights of the lower classes.

01:09:53.080 | And that will produce,

01:09:56.920 | out of unequal treatment,

01:10:02.280 | true equality will be attained.

01:10:06.200 | This is nonsense.

01:10:07.720 | The idea of discrimination

01:10:13.360 | producing true equality is nonsense.

01:10:16.900 | My view is, as I've said earlier in our discussion,

01:10:21.740 | that the way to increase the opportunities

01:10:28.500 | for the lower classes is to give them real educations.

01:10:33.500 | And until we do that, it's not gonna happen.

01:10:38.340 | And in order to do that,

01:10:39.660 | we have to overcome the problem of the teachers' unions

01:10:44.660 | at the elementary and secondary school levels.

01:10:48.900 | Until we're willing to do that honestly

01:10:52.320 | and improve those schools,

01:10:55.560 | we're gonna have a problem of large number

01:10:58.800 | of uneducated people who need a boost

01:11:02.360 | because we haven't given them proper educations.

01:11:05.080 | - What do you think about some

01:11:06.760 | of the more controversial faculty in the world?

01:11:08.720 | So an example, somebody I've spoken with many times

01:11:12.000 | on mic and offline is Jordan Peterson.

01:11:14.240 | I'm not sure if you're familiar with his work.

01:11:15.880 | - Yes.

01:11:16.720 | - But he is an outspoken critic

01:11:18.000 | of a proponent of free speech on campus

01:11:20.840 | and he's been attacked quite a bit.

01:11:22.960 | He's a controversial figure.

01:11:25.440 | What's the role of the university

01:11:27.000 | to protect the Jordan Petersons of the world?

01:11:29.200 | - I think the university has an absolute,

01:11:32.000 | absolute, not relative, not border,

01:11:34.400 | that absolute role, obligation

01:11:37.160 | to protect the academic freedom

01:11:39.440 | of even the most controversial faculty members.

01:11:43.220 | And you can imagine, out on a university campus,

01:11:48.200 | you have more people who are outliers

01:11:50.960 | than you do in the general population.

01:11:54.140 | And--

01:11:54.980 | - That's the hope at least.

01:11:57.820 | - Hopefully, yeah.

01:11:59.340 | And those outliers have to be protected.

01:12:03.240 | They can't be pressured, they can't be fired,

01:12:06.500 | they can't be disabled from spewing their views,

01:12:11.500 | whether they're considered racist,

01:12:13.020 | whether they're considered to be,

01:12:14.700 | promote an idea of human society

01:12:19.420 | that's considered obnoxious.

01:12:22.860 | It doesn't matter.

01:12:23.860 | If you can't have freedom of thought

01:12:28.040 | on the college campuses, where can you?

01:12:31.580 | Them we're lost, as a society we're lost.

01:12:34.180 | And as an educational institution,

01:12:36.680 | educational institutions no longer will educate,

01:12:40.080 | they will indoctrinate.

01:12:42.060 | That we have to avoid at all costs.

01:12:44.140 | - And we should also remember that the outlier

01:12:46.600 | might also be the only bearer of truth.

01:12:49.880 | So in Nazi Germany speaking against the fascism,

01:12:53.380 | fascist regime, in communist Soviet Union

01:12:56.620 | speaking against communism,

01:12:58.440 | they might hold the key to solving

01:13:02.440 | the ailments of that society.

01:13:03.600 | - Absolutely.

01:13:04.920 | And some of the most important discoveries

01:13:07.040 | in science, for example, were mocked at the beginning.

01:13:12.040 | I mean, think of poor Charlie Darwin.

01:13:16.680 | Charlie, I see he is on nickname levels with you.

01:13:21.680 | Well, 'cause we're talking about these big topics

01:13:24.240 | of sexism, racism, and hate.

01:13:26.480 | We should not forget about the smaller topics,

01:13:28.400 | which might even have the much bigger impact,

01:13:30.320 | which is what you're speaking to,

01:13:32.680 | which is outlier ideas in science.

01:13:37.680 | So basically welcoming controversial ideas in science.

01:13:43.120 | And by controversial, I mean,

01:13:44.920 | just stuff that most of the community doesn't agree on.

01:13:48.800 | It doesn't actually harm anyone at all.

01:13:50.800 | But even then, there's always pressure.

01:13:53.080 | One of the things I'm really concerned about

01:13:54.720 | is how little power young faculty have.

01:13:58.180 | That there's a kind of hierarchy, seniority,

01:14:01.080 | that universities have, empowered by the administration.

01:14:05.500 | Where the young faculty that come in,

01:14:07.960 | they're kind of--

01:14:09.840 | - Pre-tenure.

01:14:11.760 | - Yeah, there's a process in chasing tenure

01:14:16.080 | where you're kind of supposed to behave.

01:14:18.640 | And there's an incentive to kind of fit in

01:14:21.880 | and to not be an outcast.

01:14:23.720 | And that's a really huge problem

01:14:25.360 | because oftentimes the youth is when the craziest,

01:14:30.360 | the biggest ideas, the revolutionary ideas come.

01:14:32.680 | And if you're forced to behave and fit in and not speak out,

01:14:37.440 | then even in the realm of science,

01:14:39.760 | the innovation is stifled.

01:14:41.360 | - Well, now you trigger my,

01:14:44.520 | having to tell you this story.

01:14:45.960 | - You're triggered, this is good.

01:14:47.600 | - In the mid-1980s, I decided to take a four-month sabbatical

01:14:52.680 | for my law practice.

01:14:53.960 | Professor James Vorenberg, who was at the time

01:14:58.200 | Dean of the Harvard Law School, heard about it.

01:15:01.360 | Heard about it from his wife, Elizabeth "Betty" Vorenberg,

01:15:05.480 | whom I was very friendly with

01:15:06.760 | because we were both on the ACLU,

01:15:08.960 | the ACLU of Massachusetts Board at the time.

01:15:11.640 | And so Betty told Jim that Harvey was taking a sabbatical.

01:15:17.680 | Jim called Harvey and asked Harvey if he would like

01:15:23.040 | to teach a course at the Harvard Law School

01:15:25.720 | because there was nobody who had,

01:15:28.440 | teaching criminal law from the perspective of somebody

01:15:32.960 | who actually was in court, litigated.

01:15:35.920 | It was all theoretical.

01:15:38.240 | I said, "Sure, I'll do it."

01:15:40.520 | So I taught a semester at Harvard Law School.

01:15:44.160 | The student evaluations were fabulous.

01:15:46.440 | Why?

01:15:47.280 | Because it was really interesting.

01:15:48.200 | They were hearing a lawyer who was talking about real cases.

01:15:51.240 | I actually brought in a few of my clients

01:15:53.960 | in some of the classes.

01:15:55.920 | And so Jim called me and said,

01:15:58.600 | "Harvey, the students love this course.

01:16:01.200 | "I'd like to offer you a tenure-track position

01:16:04.520 | "at the law school.

01:16:05.360 | "You'd have to give up your law practice."

01:16:06.720 | I turned him down.

01:16:08.520 | He said, "Did you just say no?"

01:16:11.240 | I said, "Yes, I said no."

01:16:13.600 | He said, "How come?"

01:16:14.560 | He says, "Nobody has ever, in my administration,

01:16:18.360 | "has ever turned down a tenure-track offer

01:16:20.720 | "at Harvard Law School."

01:16:22.600 | I said, "Because I could see that I'm not a good fit,

01:16:27.000 | "that the administrators overrun the place,

01:16:32.000 | "that faculty members, especially untenured,

01:16:34.920 | "who are afraid to say things,

01:16:37.160 | "that might not help them in the tenure quest.

01:16:40.560 | "It's not a good fit for me."

01:16:45.320 | You saw this in the mid-1980s already.

01:16:47.880 | Yes, about 1985.

01:16:49.680 | I went back to my law practice.

01:16:53.880 | I did not wanna get into this meat grinder that I saw.

01:16:58.880 | Actually, I started to see it before the turn of the century

01:17:04.120 | 'cause I co-authored "The Shadow University" in '98,

01:17:07.200 | and then co-founded FIRE in '99.

01:17:11.440 | I'm an early student of this phenomenon.

01:17:14.820 | - What are some other aspects of the book,

01:17:17.760 | "The Shadow University," that we may have not covered?

01:17:21.520 | - Well, let me tell you a story.

01:17:23.440 | I believe I tell it, "The Shadow University,"

01:17:25.360 | 'cause it was part of-- - Go.

01:17:26.680 | I'm loving these stories, Harvey.

01:17:28.480 | - The stories are fabulous.

01:17:30.400 | Let me tell you a story of,

01:17:34.080 | I did a tour of the country visiting campuses.

01:17:37.700 | I visited a college called Hamline University.

01:17:42.520 | I believe it was in Indiana or Illinois,

01:17:45.120 | somewhere in the Midwest.

01:17:46.400 | And I attended a freshman orientation.

01:17:50.640 | Now, listen to this.

01:17:51.800 | This was a freshman orientation.

01:17:55.640 | The administrators, the deans and the deanettes

01:18:00.280 | and the deputy assistant deans and deanettes,

01:18:03.720 | third deputy assistant deans and deanettes,

01:18:06.520 | lined the students up according to their skin hues.

01:18:10.360 | - Oh, boy.

01:18:11.440 | - The blonde, blue-eyed white folks were at one end.

01:18:16.200 | The darkest, you know,

01:18:19.920 | African-Americans whose bloodlines had not yet

01:18:25.720 | mixed with any of the whites on the other end.

01:18:29.960 | And the exercise was you had to tell

01:18:33.200 | how your race affected your success in life

01:18:37.440 | up until that point.

01:18:38.740 | I thought it was the most demeaning thing

01:18:44.840 | that one could imagine, demeaning.

01:18:48.640 | I thought to myself,

01:18:50.240 | they could do the same about sexual orientation.

01:18:53.040 | They could do the same about religion.

01:18:55.040 | They could do the same about national origin.

01:18:57.080 | It would be demeaning no matter what.

01:19:00.920 | And the students actually verbalized

01:19:05.920 | how their race had either been a plus or a minus.

01:19:10.520 | - They did.

01:19:11.360 | - They did.

01:19:12.600 | And I thought it was so demeaning,

01:19:14.320 | it just confirmed all of my distaste

01:19:18.640 | for this kind of approach.

01:19:22.320 | - Let me ask you from the interviewer seat.

01:19:24.160 | So I get to do this podcast,

01:19:28.400 | and I often have to think about giving a large platform

01:19:32.520 | and having a conversation with very controversial figures.

01:19:37.200 | And the level of controversy has been slowly increasing.

01:19:41.760 | What's the role of this medium to you?

01:19:46.760 | This medium of speech between two people

01:19:50.280 | and me speaking with a controversial figure,

01:19:52.160 | me or some other interviewer.

01:19:54.200 | What's the role of giving platform to controversial figures?

01:19:57.920 | Say members of the KKK or dictators,

01:20:02.520 | people who are seen as evil?

01:20:05.800 | - Well, we want to face the world with reality.

01:20:09.640 | And the reality is that there are some unpleasantnesses

01:20:14.520 | in the world.

01:20:16.120 | Running from genocide right through

01:20:18.640 | to ordinary discrimination, to offensiveness.

01:20:23.640 | It's the real world as we know it exists.

01:20:26.880 | Are we afraid to say it?

01:20:28.400 | Do we want to make people think that we live in a world

01:20:31.920 | where those words are not used?

01:20:34.000 | Where those animosities don't exist?

01:20:36.560 | The answer is no.

01:20:39.200 | - But you can whitewash,

01:20:40.320 | you can normalize the use of those words,

01:20:42.000 | and you can whitewash the acceptability of certain leaders.

01:20:45.800 | So for example, interviewing Hitler in 1938, 1935, 1936,

01:20:50.800 | 1937, '38, those are all different dynamics there.

01:20:54.040 | But you can normalize this person,

01:20:57.000 | and in so doing create enormous harm.

01:21:00.400 | - Well see, I don't see it as normalizing.

01:21:02.400 | I see it as exposing.

01:21:04.600 | If more people had taken Mankin seriously,

01:21:07.720 | Franklin Roosevelt would have acted much sooner.

01:21:12.600 | He only got us into the war,

01:21:15.520 | as Congress gets into the war,

01:21:17.640 | when the Japanese made the mistake of attacking Pearl Harbor.

01:21:22.600 | But there were some people in the State Department,

01:21:25.840 | there were some people in the administration

01:21:27.640 | who were trying to get Roosevelt

01:21:31.120 | to see what Hitler was really like,

01:21:33.960 | and he was blind to it.

01:21:36.040 | And this was one of the greatest presidents

01:21:37.680 | the United States ever had.

01:21:39.560 | He was blind to it until the Japanese attacked Pearl Harbor.

01:21:44.560 | So I think that words, unpleasant ideas,

01:21:50.920 | as expressed by Rhodes,

01:21:52.720 | are essential for communicating fact and truth and reality.

01:21:57.720 | And that's why I think that we should not

01:22:01.680 | whitewash language, we should not whitewash the fact

01:22:05.600 | that Jeffrey Epstein was pretty close to MIT.

01:22:09.200 | - And Harvard.

01:22:10.040 | - And Harvard.

01:22:10.880 | And reality actually means something.

01:22:17.320 | - Yeah, but from the role of the interviewer,

01:22:18.920 | that's something I have to think a lot about.

01:22:21.560 | Whether interviewing Hitler, you said exposing.

01:22:24.440 | I think it's hard to know what Hitler's like in a room,

01:22:29.800 | but it's also hard to know,

01:22:32.080 | I've never met Jeffrey Epstein,

01:22:33.400 | it's hard to know what Jeffrey Epstein's like in a room.

01:22:36.720 | But I imagine to some degree they're charismatic figures.

01:22:40.160 | So exposing them in the interview setting

01:22:43.000 | is not an easy task.

01:22:44.920 | - Well, interviewing is not an easy job.

01:22:49.160 | It's not a good idea to have an interviewer be an idiot.

01:22:54.440 | (laughing)

01:22:59.080 | - I know exactly what you're saying

01:23:00.440 | and I know why you're looking at me directly as you say it.

01:23:03.320 | I appreciate that, Harvey.

01:23:04.820 | All right, let me ask about your friend,

01:23:08.600 | your colleague, Alan Dershowitz.

01:23:12.360 | And I'll also ask about your review

01:23:14.240 | of his most recent book.

01:23:15.480 | But before then, it'd be interesting

01:23:17.400 | to ask what you think of him as a human being, as a lawyer.

01:23:21.620 | He's quite an interesting case.

01:23:24.040 | He's represented some of the most

01:23:25.240 | controversial figures in history.

01:23:26.600 | - Including Jeffrey Epstein.

01:23:27.800 | - Including Jeffrey Epstein, Mike Tyson,

01:23:30.120 | Julian Assange, Jim Baker,

01:23:32.600 | and Jeffrey Epstein and even Donald Trump.

01:23:36.360 | So he's an interesting figure.

01:23:38.080 | What do you think about that?

01:23:38.920 | - Clarence Van Buelow.

01:23:40.040 | - What do you think?

01:23:42.480 | What do you think about him as a human being,

01:23:44.680 | as a lawyer, what he represents

01:23:46.680 | in terms of values and ideals?

01:23:48.920 | - Well, he's a criminal defense lawyer.

01:23:51.240 | And the job of a criminal defense lawyer

01:23:53.800 | is to represent accused criminals.

01:23:56.380 | He is a lifelong Democrat.

01:24:01.100 | He didn't represent Trump

01:24:03.040 | because he agrees with him politically.

01:24:05.200 | - Voted for Hillary, I believe you wrote.

01:24:06.760 | - He voted for Hillary, yes.

01:24:08.780 | That's what he says and I absolutely believe it.

01:24:10.600 | He's a liberal Democrat.

01:24:12.780 | But he's a criminal defense lawyer as well as a professor.

01:24:17.960 | And I've represented some very nasty people in my career.

01:24:22.960 | I wouldn't go out for coffee with them,

01:24:28.040 | but they have constitutional rights to representation.

01:24:31.520 | - And you take that very seriously.

01:24:33.840 | - Yes, you notice something that people

01:24:35.840 | don't understand about Dershowitz.

01:24:38.920 | He was asked by Trump to represent him

01:24:41.600 | in the second impeachment as well.

01:24:43.960 | He turned him down.

01:24:45.840 | Why do you think he turned him down?

01:24:47.600 | - So people should know he represented Trump

01:24:49.600 | in the first impeachment trial.

01:24:50.560 | - He represented him only in the first.

01:24:53.000 | And he was successful in when Trump was impeached

01:24:55.400 | the second time he asked Allen to represent him.

01:24:57.760 | Allen has had a lifelong policy

01:25:01.520 | of only representing somebody once, never twice.

01:25:05.480 | Why?

01:25:06.880 | Because he never wanted to be house counsel to the mafia.

01:25:09.720 | And so he early on had this position.

01:25:15.640 | He only represents somebody once.

01:25:18.040 | The mafia wants a lawyer who's an in-house counsel

01:25:22.240 | who represents them in all their cases.

01:25:24.460 | So that's the reason.

01:25:27.080 | And Allen never publicly explained it.

01:25:28.960 | I know it's a fact 'cause I've known him

01:25:31.120 | from the day that we met at Harvard Law School, 1964.

01:25:34.040 | He was a first year professor.

01:25:36.080 | I was a first year student.

01:25:37.640 | We both had Brooklyn accents and we hit it off.

01:25:40.440 | We've been close friends ever since.

01:25:43.520 | - So there's some kind of unethical line that's crossed

01:25:45.800 | when you continuously represent a client.

01:25:49.320 | - Yeah, he thought it was not so much an ethical line.

01:25:52.640 | You have a right to represent mafia people.

01:25:55.280 | But he didn't wanna be house counsel.

01:25:56.920 | He didn't wanna be, you know,

01:25:59.120 | have them ask him for advice in advance

01:26:01.640 | of what they were doing.

01:26:03.280 | He was willing to represent somebody once,

01:26:06.080 | no matter how awful.

01:26:07.720 | Klaus von Bulow was accused of killing his wife.

01:26:11.220 | These are pretty nasty people.

01:26:12.980 | But he didn't wanna be house counsel to any of them.

01:26:19.640 | - So you wrote a review of Alan Dershowitz's new book

01:26:24.120 | on Donald Trump.

01:26:25.440 | The title of that book is "Get Trump,

01:26:27.240 | "The Threat to Civil Liberties Due Process

01:26:29.520 | "and Our Constitutional Rule of Law."

01:26:32.320 | Can you summarize this book and your review of it?

01:26:35.200 | - Yes, by the way, I co-authored it

01:26:36.800 | with my research assistant, who's sitting right here.

01:26:39.720 | - Emily. - Yes.

01:26:40.960 | And I thought that the book was another example

01:26:47.360 | of the fact that everybody's entitled to a defense

01:26:51.840 | and that Alan's being involved with Trump

01:26:56.120 | was purely professional.

01:26:57.360 | It was not political.

01:26:58.560 | It was not philosophical.

01:27:01.120 | And I thought that the fact that he was being criticized,

01:27:06.000 | he was being shunned because of his connection to Trump,

01:27:10.280 | I found very interesting that this is a guy

01:27:13.840 | who represented such, I call them distasteful figures,

01:27:18.840 | as Klaus von Bulow, as Mike Tyson, as OJ Simpson,

01:27:31.080 | as Sheldon Siegel.

01:27:32.400 | And when he was considered to be a skillful lawyer,

01:27:39.320 | made his reputation.

01:27:41.960 | And then he represents Donald Trump,

01:27:45.200 | who to my knowledge never killed anybody.

01:27:47.500 | And he's suddenly shunned.

01:27:52.480 | I thought the hypocrisy of it, the political preening,

01:27:57.240 | it was very distasteful to me.

01:28:00.760 | And it was not only 'cause he was my friend.

01:28:04.320 | If he wasn't my friend, I think I'd have the same view.

01:28:07.080 | The holier-than-thou nonsense, the hypocrisy of it.

01:28:13.720 | They wouldn't talk to him on Malthus Vian, though.

01:28:18.160 | Alan and I are different.

01:28:19.640 | I'm not so sensitive.

01:28:21.160 | Someone doesn't wanna talk to me, no problem,

01:28:25.080 | no problem at all.

01:28:27.680 | But Alan is, considering how controversial

01:28:31.960 | his life has been--

01:28:33.440 | - He's somewhat sensitive.

01:28:34.520 | - He's somewhat sensitive.

01:28:35.640 | And I'm telling Alan, Alan, don't let it get to you.

01:28:40.360 | - I can relate, I can definitely relate.

01:28:42.280 | Taking on some controversial conversations

01:28:44.160 | still wear my heart on my sleeve, it hurts.

01:28:45.960 | All of it hurts.

01:28:47.280 | But maybe the pain makes you a better student

01:28:50.720 | of human nature.

01:28:52.080 | Maybe that's the case for him.

01:28:53.460 | Nevertheless, the book makes a complicated

01:28:57.420 | and I think an interesting point.

01:28:59.100 | He opens the book with,

01:29:02.420 | "Now that Donald Trump has announced his candidacy

01:29:04.860 | "for re-election as president,

01:29:06.920 | "the unremitting efforts by his political opponents

01:29:09.820 | "to, quote, get him, to stop him from running,

01:29:13.300 | "at any cost, will only increase.

01:29:15.340 | "These efforts may pose the most significant threat

01:29:18.160 | "to civil liberty since McCarthyism."

01:29:20.580 | So is he right?

01:29:21.580 | - He's absolutely right.

01:29:23.180 | Because these attempted, for example,

01:29:26.780 | the prosecution, the one prosecution that has been brought,

01:29:30.300 | now Alvin Bragg in the Manhattan.

01:29:33.960 | I have looked at that and I don't believe

01:29:35.860 | that Trump has committed a crime.

01:29:37.980 | And yet Bragg was pressured to bring that.

01:29:41.660 | People in his office were threatening

01:29:43.140 | to quit if he didn't indict.

01:29:44.980 | Wholly improper, wholly unethical.

01:29:47.440 | And he's gonna lose the case.

01:29:50.540 | Has Trump committed crimes?

01:29:52.140 | Yes, mostly they're tax crimes.

01:29:54.680 | He has cheated on taxes his whole career,

01:30:00.140 | as far as I could tell.

01:30:01.940 | He could easily be indicted for state and federal taxes,

01:30:06.860 | but they're not as sexy.

01:30:09.500 | And I think that he's become a target

01:30:13.940 | by ambitious politicians, ambitious prosecutors.

01:30:20.340 | He has gotten some sympathy, which he doesn't deserve.

01:30:24.460 | And a lot of it is, you'll pardon the phrase,

01:30:28.220 | political correctness.

01:30:30.140 | The better people are not supposed to be Trumpers.

01:30:33.840 | I had an interesting experience about Trump.

01:30:38.980 | I had two interesting experiences.

01:30:41.340 | The more recent one was I was in the house

01:30:44.020 | of Lawrence Summers, the former president of Harvard,

01:30:49.700 | who was driven out by political correctness, by the way.

01:30:52.420 | He insulted women biologists.

01:30:54.740 | I was in his house when he was still president of Harvard,

01:31:01.300 | when the Trump-Hillary Clinton contest took place.

01:31:07.540 | And I was with Elsa.

01:31:11.860 | We were invited to Summers' house in Brookline.

01:31:19.000 | And it looked like Hillary was gonna win.

01:31:23.780 | And the Harvard faculty members,

01:31:25.480 | they were all celebrating.

01:31:26.840 | They were all figuring out what their cabinet positions

01:31:29.480 | were gonna be, blah, blah, blah, blah, blah.

01:31:31.900 | And then about 11.30 at night, all of a sudden,

01:31:34.860 | it was announced that in terms of electoral votes,

01:31:37.980 | Trump had just eked out a victory,

01:31:41.100 | that Hillary beat him in the popular vote,

01:31:43.380 | but he had won the electoral college.

01:31:48.060 | And there was an immediate depression.

01:31:50.940 | And that was--

01:31:54.540 | Meaning like a quiet over the room.

01:31:56.500 | The room became absolutely stone solid.

01:31:59.800 | And they were all disappointed.

01:32:05.460 | Well, that was a memorable moment.

01:32:07.500 | And it told me that they were a little bit

01:32:11.060 | too overconfident.

01:32:13.580 | They were savoring being part

01:32:18.100 | of a presidential administration.

01:32:20.140 | Ambition had been thwarted.

01:32:22.920 | I'm not a great fan of preening ambition.

01:32:27.580 | I think it blinds people to realities.

01:32:30.380 | And the resulting arrogance from such ambition.

01:32:32.580 | And the arrogance, yes.

01:32:34.540 | It's one of the reasons I didn't accept

01:32:36.860 | Jim Vorenberg's offer to be part of the academic community.

01:32:40.220 | I mean, I represent professors,

01:32:41.580 | I have friends who are professors,

01:32:42.900 | I represent students, I have friends who are students.

01:32:45.540 | And I have great regard for universities

01:32:50.420 | and higher education.

01:32:51.820 | But I was not about to become part of the culture.

01:32:55.580 | I thought that it was not good for me

01:32:57.780 | and not good for the institution either.

01:33:00.620 | That can, a culture that can breed arrogance.

01:33:02.900 | Yes.

01:33:03.720 | Self-importance.

01:33:04.720 | Yep.

01:33:06.180 | And in a sense, the election of Donald Trump

01:33:09.360 | was a big F you to such--

01:33:11.420 | Correct.

01:33:12.260 | Which is why I think he,

01:33:14.380 | why I think he managed to pull it off.

01:33:18.000 | To jump topics a little bit,

01:33:20.820 | what do you think about something you've written about?

01:33:23.900 | What do you think about the mass surveillance programs

01:33:26.420 | by the NSA and also probably by other organizations,

01:33:30.060 | CIA, FBI, and others?

01:33:32.340 | And broadly, what do you think about

01:33:36.500 | the importance of privacy for the American citizen?

01:33:39.980 | Okay, I believe that the FBI should be abolished.

01:33:44.980 | 'Cause I believe that its culture was so corrupted

01:33:50.520 | by its first director, John Edgar Hoover,

01:33:55.520 | J. Edgar Hoover, that it is impossible

01:34:00.260 | to reform the FBI to make its agents honest,

01:34:05.260 | to force them to obey the Constitution,

01:34:09.660 | the first, fourth, and fifth amendments especially.

01:34:13.400 | And it's a culture that cannot be changed.

01:34:19.120 | Hoover established the culture

01:34:22.420 | and no FBI director since has been able to change it.

01:34:26.600 | If you go online, I did on YouTube a video

01:34:32.720 | for the ACLU of Massachusetts.

01:34:35.700 | It was when I was on the board.

01:34:37.060 | It was probably when I was president of the board.

01:34:39.020 | I was president of the board for two years.

01:34:41.220 | I was on the board for 20 years.

01:34:44.340 | And I did a video about advising people

01:34:48.680 | to never, ever, ever talk to an FBI agent

01:34:51.940 | when they come knocking on your door.

01:34:54.500 | Can you briefly explain the intuition?

01:34:57.500 | Yes.

01:34:58.340 | Why not to talk to an FBI agent?

01:34:59.180 | They have a system.

01:35:01.340 | When they come in and interview you,

01:35:03.140 | two agents show up, never one.

01:35:07.300 | One asks the question, the other one takes notes.

01:35:09.660 | The note-taking agent takes notes

01:35:11.940 | and then goes back to the office

01:35:13.340 | and types up a report called a Form 302,

01:35:18.020 | which is the official record of what was asked and answered.

01:35:23.020 | So when I have a client interviewed by the FBI,

01:35:30.240 | I show up and I always agree,

01:35:35.940 | almost always agree to the interview.

01:35:38.180 | But I bring a tape recorder.

01:35:41.420 | And I say, all right, I'm gonna tape this.

01:35:45.040 | And they say, well, by regulation,

01:35:47.460 | we're not allowed to do the interview if it's taped.

01:35:50.060 | The record is the 302, the agent is taking notes.

01:35:55.580 | I say, well, I have a policy too.

01:35:58.860 | My policy is to never allow a client to be interviewed

01:36:01.820 | unless it's recorded.

01:36:03.900 | So it's unfortunate,

01:36:05.540 | but we're gonna have to end this meeting.

01:36:07.380 | And the agents get up and leave.

01:36:09.200 | And I've never seen a Form 302

01:36:15.180 | that I consider to be accurate.

01:36:17.540 | The agents write down what they wish you had said,

01:36:22.540 | rather than what you said.

01:36:24.580 | It is a wholly corrupt organization

01:36:28.700 | that has not gotten any better since Hoover died.

01:36:31.620 | - And fundamentally, the corruption is in the culture

01:36:35.540 | that is resisting the-- - Truth.

01:36:38.700 | - The Constitution of the United States.

01:36:40.540 | - Correct. - The first and fourth

01:36:41.900 | and fifth amendment. - Correct.

01:36:42.740 | It's not financial corruption.

01:36:46.020 | It is corruption of the mission.

01:36:49.480 | And I think it should be abolished.

01:36:53.380 | And if we need a federal investigative agency,

01:36:55.820 | it should be a new name, a new culture,

01:36:59.020 | wholly new members, a new director.

01:37:02.420 | And it's impossible to reform the FBI.

01:37:07.420 | - Can you elaborate on what exactly is broken about the FBI?

01:37:11.140 | Is it the famous saying from Stalin's KGB head,

01:37:16.140 | "Barry, show me the man and I'll show you the crime"?

01:37:20.660 | - Right.

01:37:21.500 | - Is it that kind of process?

01:37:23.040 | - It's that kind of process.

01:37:24.240 | They decide who's guilty,

01:37:25.520 | and then they go about concocting a case

01:37:27.660 | against the person who they wanna get.

01:37:31.740 | - So the goal is not to find the truth or--

01:37:35.180 | - It's to solve the case and close it

01:37:37.780 | and enhance their reputations.

01:37:40.220 | - But to show that an innocent man is guilty

01:37:43.860 | is also solving the case from their perspective.

01:37:46.960 | So to falsely convict or falsely imprison an innocent man

01:37:52.860 | is also solving the case.

01:37:55.540 | - Well, it closes the case

01:37:56.980 | if they falsely imprison an innocent man.

01:37:59.780 | There is an enclosing cases.

01:38:02.340 | - So that's the FBI,

01:38:03.400 | but broadly speaking about the surveillance aspect of this,

01:38:07.160 | what are your views on the right

01:38:10.980 | that an American citizen has to privacy?

01:38:13.780 | - Well, wiretapping and electronic surveillance

01:38:18.220 | are very, very intrusive.

01:38:21.300 | And I think that the circumstance

01:38:25.220 | that these tools are used should be narrowed.

01:38:28.900 | For example, they're used in a lot of drug cases.

01:38:33.900 | Since I don't think drugs should be illegal in any event,

01:38:36.780 | I certainly think that it's a terrible violation of privacy

01:38:40.420 | to use wiretapping in a drug case.

01:38:45.440 | I could see it in cases of murder,

01:38:50.260 | possibly in cases of serious extortion,

01:38:55.260 | but on other kinds of crimes,

01:38:59.580 | where they wiretap, especially drug cases.

01:39:02.020 | I believe drugs should all be legalized anyway.

01:39:04.420 | I think it's,

01:39:06.800 | the price we pay as a society is not worth it.

01:39:12.840 | - There's on the Wikipedia page for "Nothing to Hide,"

01:39:16.180 | you're cited.

01:39:17.460 | In fact, your book that you gave me today,

01:39:18.940 | "Three Felonies a Day," is cited.

01:39:21.420 | So "Nothing to Hide" argument,

01:39:22.820 | that's an argument that if you're a well-behaved citizen,

01:39:26.620 | you have nothing to hide,

01:39:28.660 | and therefore your privacy can be violated.

01:39:31.020 | - Well, the problem is that under the Federal Criminal Code,

01:39:34.520 | particularly the Federal Criminal Code,

01:39:37.960 | it is very easy to be charged with a crime.

01:39:43.980 | Now, why?

01:39:46.820 | Under the Constitution,

01:39:49.100 | the federal government does not have

01:39:51.060 | plenary criminal jurisdiction.

01:39:54.180 | That's up to the state.

01:39:55.440 | How is it that the feds indict

01:40:00.860 | in so many areas of American life?

01:40:03.160 | It's because the Supreme Court has allowed the following

01:40:07.860 | absolutely insane situation to prevail.

01:40:11.960 | Anything can be made a federal crime

01:40:16.540 | if in the course of the commission of the crime,

01:40:20.220 | the means of interstate communication or travel are used.

01:40:26.620 | That means that if you commit a crime,

01:40:30.900 | which ordinarily would be a state crime,

01:40:34.100 | and you use the telephone or you send a letter,

01:40:37.700 | it suddenly becomes federal.

01:40:40.360 | That means that the limitation that the founding fathers

01:40:45.380 | who wrote the Constitution intended

01:40:48.860 | to keep the feds out of daily life

01:40:52.820 | and to give that jurisdiction to the state

01:40:56.780 | has been completely thwarted.

01:40:59.180 | 'Cause I can't think of a case

01:41:03.540 | where somebody doesn't use a telephone

01:41:06.240 | in the course of planning,

01:41:09.940 | discussing something that's arguably criminal.

01:41:14.060 | And so this limited authority of the federal government

01:41:18.100 | to bring charges in criminal cases is illusory.

01:41:25.500 | The feds can indict a ham sandwich.

01:41:28.380 | So basically everybody's guilty.

01:41:31.180 | And if the feds wanna bring you in, they can.

01:41:36.180 | Correct. They can find a way.

01:41:37.700 | And that allows them to terrorize people who are dissidents.

01:41:42.700 | Yeah.

01:41:43.900 | What is broken, what works

01:41:47.540 | about the American criminal justice system

01:41:49.500 | from your perspective from all--

01:41:51.140 | The jury system.

01:41:52.180 | The jury system.

01:41:53.020 | Yes.

01:41:53.840 | You like the jury system.

01:41:54.900 | Everyday citizens representing 12 ordinary people

01:41:59.500 | have to agree unanimously in order to convict.

01:42:04.120 | What do you think about the highest court in the land,

01:42:07.900 | the Supreme Court?

01:42:08.860 | What works and what is broken

01:42:10.140 | about the Supreme Court as an institution?

01:42:12.260 | What are its strengths and weaknesses?

01:42:13.940 | Well, the Supreme Court is unfortunately fairly political.

01:42:18.940 | And the current Supreme Court is overruling precedents

01:42:26.460 | which are, it's really improper.

01:42:30.380 | And precedents should not be overruled so easily.

01:42:34.460 | It's about to overrule the affirmative action.

01:42:40.780 | Now, I'm opposed to affirmative action.

01:42:42.940 | I think I made that clear earlier in our discussion.

01:42:46.460 | But still, it's a precedent

01:42:49.100 | and it should be given some respect.

01:42:53.020 | But in order to propagate a more conservative agenda,

01:42:58.020 | the court is treating precedent

01:43:06.460 | as if it doesn't have any role.

01:43:09.300 | And that's a huge mistake.

01:43:11.740 | Some of the congressmen on the Democratic side

01:43:16.540 | are looking to enlarge the court

01:43:19.040 | in order to basically do what Franklin Roosevelt

01:43:22.540 | was not able to do.

01:43:23.980 | And that is change the court's philosophy.

01:43:30.900 | But I think that's very short-sighted

01:43:34.340 | because this is a long game.

01:43:38.420 | This is a republic we have here.

01:43:40.900 | And anyone who tries to, for example,

01:43:45.100 | enlarge the court from nine to 12

01:43:47.340 | in order to get more liberals on the court,

01:43:51.900 | then some other administration will try to enlarge it

01:43:55.660 | from 12 to 15 to get more liberals on the court.

01:43:59.020 | You'd have a constant fiddling

01:44:03.820 | with a very important institution.

01:44:06.300 | - So the law should have more lasting power

01:44:08.420 | than the political bickering of the day.

01:44:11.380 | - Correct.

01:44:12.340 | - Let me ask you, you've lived one heck of a life

01:44:17.340 | and fought a lot of battles

01:44:20.340 | and you continue to do so

01:44:21.420 | with the Harvard Board of Overseers.

01:44:23.700 | So first of all, thank you for that.

01:44:25.900 | But we're all human, we're all mortal.

01:44:30.260 | Do you ponder your death?

01:44:31.660 | Do you ponder your mortality?

01:44:32.940 | Are you afraid of it?

01:44:34.020 | - Let me say this, my father died at 48.

01:44:37.260 | He died at 48 because he smoked four packs of Camels a day.

01:44:42.260 | He got a massive heart attack at 43.

01:44:45.260 | He continued to smoke despite that.

01:44:48.940 | He died at 48.

01:44:49.780 | So I did not expect to live this long

01:44:52.460 | 'cause I thought it was genetic.

01:44:53.740 | It turns out it was cigarettes.

01:44:55.460 | So here I am, I'm gonna be 81 on May 10th.

01:45:00.500 | I was born on May 10th, 1942,

01:45:02.540 | which is Mother's Day, coincidentally.

01:45:05.060 | And I realize I'm not gonna live forever.

01:45:09.660 | I also take pride in the fact that I have demonstrated

01:45:14.660 | that a lawyer does not have to go with a law firm

01:45:17.500 | in order to manage to make it.

01:45:19.620 | You can make your own, write your own,

01:45:22.220 | what's the word, write your own ticket.

01:45:24.180 | I've done that.

01:45:28.880 | I agree that I've had an elite education.

01:45:31.960 | I went to Princeton and Harvard Law School.

01:45:34.860 | But I don't think you have to necessarily

01:45:36.680 | go to elite institutions in order to really make it.

01:45:40.000 | You need to work hard.

01:45:41.200 | But you shouldn't put yourself in a place

01:45:44.200 | where you're not gonna feel comfortable

01:45:47.120 | and what's the word, empowered.

01:45:48.960 | Like I refused to take Javorenburg's invitation

01:45:53.360 | for a tenure track position at Harvard Law School.

01:45:58.340 | (Mark sighs)

01:46:00.760 | I'll tell you one other story that illustrates this.

01:46:06.920 | I was originally pre-med.

01:46:09.840 | My freshman sophomore years at Princeton,

01:46:12.500 | I was in the pre-med program.

01:46:14.140 | Why?

01:46:14.980 | Because my parents wanted me to marry

01:46:20.500 | the daughter of our family physician.

01:46:24.180 | And the idea was I was gonna go to medical school.

01:46:28.980 | I was gonna go into medical practice

01:46:30.980 | with him in Hackensack, New Jersey.

01:46:33.020 | We had moved from Brooklyn at the time.

01:46:37.180 | Long story why we had to move from Brooklyn

01:46:39.380 | had to do with my father's having a problem

01:46:42.260 | with the Furry's Union and having his life threatened.

01:46:44.960 | And we moved to Maywood, New Jersey

01:46:48.220 | 'cause he got a job in a fur shop in Passaic, New Jersey.

01:46:52.960 | And a family physician, they had three daughters,

01:46:55.940 | the oldest of whom was my age.

01:46:58.380 | She went to Hackensack High School.

01:47:00.100 | I went to Pagoda High School.

01:47:03.120 | They're both in North Brooklyn County.

01:47:05.380 | And the idea was that she and I were gonna marry.

01:47:11.980 | I was gonna become, I was gonna go to medical school.

01:47:14.740 | I was going to become a partner of her father

01:47:19.120 | in his medical practice in Hackensack.

01:47:22.080 | When he retired, I was gonna inherit the practice.

01:47:25.160 | This scenario was concocted

01:47:27.780 | by Carolyn's mother and my mother.

01:47:29.840 | In my sophomore year at Princeton,

01:47:35.940 | I won a fellowship to spend that summer,

01:47:39.100 | which would be my sophomore and junior year in Paris.

01:47:42.060 | I was fluent by then.

01:47:43.460 | I had taken an accelerated French course

01:47:47.100 | my freshman and sophomore year.

01:47:50.160 | And I went to Paris.

01:47:52.480 | It was my first time out of the country.

01:47:55.560 | And I spent the entire summer working,

01:48:02.360 | supporting myself, participating in the airfare,

01:48:06.600 | and I earned money for room and board.

01:48:11.160 | And I thought about my life, and I decided,

01:48:15.040 | number one, I didn't wanna be a physician.

01:48:17.360 | I wanted to be a lawyer.

01:48:19.240 | Number two, I didn't wanna marry Carolyn.

01:48:22.160 | And I came back, I changed from pre-med to pre-law.

01:48:27.640 | I broke up with Carolyn, who was by that time

01:48:32.240 | in school at Douglas, right down the road from Princeton.

01:48:35.000 | She had followed me, or I had followed her.

01:48:40.000 | And my life suddenly took a wholly different turn.

01:48:47.040 | So that summer in Paris,

01:48:50.080 | Paris had a outsized effect on my life.

01:48:55.080 | Every year, the Brattle Theater shows "Casablanca,"

01:49:01.240 | where Bogart has this great line, he says,

01:49:05.560 | "We'll always have Paris."

01:49:07.320 | And I think to myself, I always used to say to Elsa,

01:49:11.320 | we used to see "Casablanca" every Valentine's Day,

01:49:14.760 | 'cause it was such an important movie to me,

01:49:17.280 | 'cause Paris was transformative in my life.

01:49:22.240 | We went to Paris every year during my vacation,

01:49:25.120 | we went to Paris.

01:49:27.000 | That was where she took some great pictures

01:49:29.480 | of Isaac, he's this high and this high,

01:49:33.240 | and they were hanging up in the house.

01:49:35.140 | And so I always, even after Elsa's death,

01:49:42.220 | I've seen "Casablanca" twice now.

01:49:45.260 | She died in 2020.

01:49:47.500 | And I always think we'll always have Paris.

01:49:52.800 | - We'll always have Paris.

01:49:55.300 | Well, Harvey, like I said, I hope you're very successful

01:50:02.780 | in your run for the Harvard Board of Overseers.

01:50:07.140 | I think what you stand for

01:50:09.340 | in the realm of freedom of speech

01:50:11.260 | is I think the thing that makes these universities

01:50:15.620 | great institutions in American culture.

01:50:18.020 | And I'll do everything I can to help you succeed.

01:50:22.100 | And I just am really grateful for all the work you've done,

01:50:25.140 | and I'm grateful that you would talk with me today.

01:50:26.860 | This is amazing.

01:50:28.300 | Thank you.

01:50:29.740 | Thanks for listening to this conversation

01:50:31.260 | with Harvey Silverglate.

01:50:33.300 | To support this podcast,

01:50:34.460 | please check out our sponsors in the description.

01:50:37.060 | And now let me leave you with some words

01:50:39.100 | from Harry S. Truman.

01:50:41.340 | Once a government is committed to the principle

01:50:43.660 | of silencing the voice of the opposition,

01:50:46.180 | it is only one way to go,

01:50:48.100 | and that is down the path

01:50:49.500 | of increasingly repressive measures

01:50:52.060 | until it becomes the source of terror to all its citizens

01:50:55.560 | and creates a country where everyone lives in fear.

01:50:59.100 | Thank you for listening, and hope to see you next time.

01:51:03.340 | (upbeat music)

01:51:05.920 | (upbeat music)

01:51:08.500 | [BLANK_AUDIO]

Harvey Silverglate: Freedom of Speech | Lex Fridman Podcast #377

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