Schenk v. United States

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A podcast where we dissect and analyze the Supreme Court decisions that have left us blinded and aimless like NFT owners after a Bored Ape yacht club event

0:00:00.4 Speaker 1: I mean, you can't yell fire in a crowded theater.

0:00:03.1 Speaker 2: You can if the building's burning.


0:00:10.7 Andrew Parsons: Hey everyone, this is Andrew Parsons from Prologue Projects. Leon will be back next week. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Schenck v. United States. This case dates back to World War I. It's the origin of the phrase, you can't yell fire in a crowded theater. Now, what constitutes free speech has changed quite a bit since Schenck. But it turns out, when it comes to speech during wartime, or speech by people who aren't already rich and powerful, your speech might not be that free after all. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:51.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court decisions that have left us blinded and aimless, like NFT owners after a Bored Ape Yacht Club event.


0:01:04.6 Peter: Have you guys seen this? Have you heard about this?

0:01:05.2 Michael: [laughter] Yes, so good.

0:01:07.7 Rhiannon: Drop them like flies.

0:01:10.3 Peter: Just for any of our listeners, I think we all remember the Bored Ape Yacht Club series of NFTs, which was like literally just cartoon apes and sort of got famous because they were being valued at like a million dollars a pop at one point. At least on the high end. And so they became sort of like emblematic of just how fucking stupid NFTs are. And they had an event for owners of the NFTs where they like used some dangerous ultraviolet light that has literally blinded multiple, [chuckle] multiple Bored Ape NFT owners. These dipshits just can't catch a break.


0:01:49.9 Rhiannon: In 2023, like who is going, like you are going to a Bored Ape NFT club conference in Hong Kong...

0:01:56.9 Michael: In Hong Kong.

0:01:57.0 Rhiannon: In 2023.

0:02:00.8 Michael: To go to a Bored Ape raid.

0:02:01.4 Peter: How sad, man. You're broke and now you can't see. Like, are you going to learn your lesson or is this just going to keep happening in different, increasingly severe ways? Anyway, shout out to my buddy Rick on Blue Sky for giving me that metaphor idea. I did tell him I would not give him attribution, but I'm feeling good this morning.


0:02:22.0 Rhiannon: Feeling generous.

0:02:25.9 Peter: So today's case, Schenck V. United States. This is a case from 1919 about free speech. And it is in fact one of the most seminal cases on the matter. One that continues to define our existing free speech framework in many ways, despite the fact that it was eventually more or less overturned. So in 1917, right after the United States entered World War I, Congress passed the Espionage Act, which, among other things, made it illegal to obstruct the draft or to cause insubordination in the armed forces. A couple of cool socialists from Philadelphia, I believe, sent out thousands of flyers encouraging young men to resist the draft. They were prosecuted under the Espionage Act and they said, hey, I thought this was America. What about free speech?

0:03:19.0 Rhiannon: Yeah, wait a minute.

0:03:19.0 Peter: These were the first people to notice the First Amendment.


0:03:22.1 Peter: They were like, doesn't it say here that we can speak freely? But the Supreme Court, in a unanimous decision, says, no, this is totally fine because you get less free speech during wartime, you know? So we're going to talk about that. We're going to talk about what free speech means during wartime, what wartime is, whose wars we're talking about, and what this might mean for your average college student trying to, I don't know, just protest some happenings in the Middle East, for example.

0:04:00.3 Rhiannon: Yeah. Yeah. Just to name one.

0:04:01.4 Peter: Just to name one example.

0:04:02.6 Rhiannon: Right. Perhaps topical matter at this moment. Yeah. But jumping into some background for this case, Schenck, I mean, like Peter said, Schenck has been more or less overturned, but it does sort of still inform the jurisprudence on the First Amendment for sure. And the jurisprudence, it's less that like, it was outright overturned and more like the jurisprudence developed from Schenck, right? And so now some of it is different. But talking about Schenck and what happened with the cool socialists, so the year is 1917. The United States has just entered World War I. You know what that means. Wartime, baby. Government can do whatever it wants. And you're a coward if you say, no, that's bad.

0:04:46.1 Peter: Yeah.

0:04:46.2 Michael: That's right.

0:04:47.7 Peter: Are you a fucking patriot?

0:04:49.8 Rhiannon: Right. Right. Are you fucking American or not?

0:04:52.6 Michael: Are you going to call them freedom fries or are you a traitor?

0:04:55.6 Peter: Or Austro-Hungarian Empire fries.

0:05:02.6 Rhiannon: So a couple of months after the United States enters World War I, Congress in the US passes the Espionage Act. So the Espionage Act makes it a crime to do a few things. It makes it a crime to convey information with the intent to interfere with the operation or success of the US military. It makes it a crime to promote the enemy's success. It makes it a crime to convey false reports or false statements to interfere with the operation or success of the military. And then importantly here, or the part of the Espionage Act that is relevant for these two people who are prosecuted, is the Espionage Act made it a crime to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty in the military, or to willfully obstruct recruiting or enlistment in the US military. The maximum fine for that, if you were found guilty, is $10,000. The maximum prison sentence was 20 years. Now, just to add as a side note, President Woodrow Wilson wanted the power to censor the press, wanted that to be included in the Espionage Act, but that provision was taken out. There were some senators who were like, maybe that is a bridge too far.

0:06:24.1 Peter: That's a pretty specific freedom in the constitution.

0:06:26.8 Rhiannon: Right, says it right up top.

0:06:28.8 Peter: Really says it.

0:06:29.7 Rhiannon: Yeah.


0:06:30.8 Rhiannon: Now, in practice, of course, the government at this time, before this time, after this time, definitely had already censored the press. But, you know, for whatever reason, in terms of explicitly enacting the possible censorship of the press into law, that provision didn't make it in the Espionage Act.

0:06:50.7 Peter: There was a relatively long tradition in the United States of the press being allowed to oppose wars within certain confines. And so that sort of tradition carried on through World War I.

0:07:04.1 Rhiannon: Sure. Now, the cool socialists. Let's talk about them. Charles Schenck and Elizabeth Baer, they were socialists in Philly. They were members of the executive committee of the Socialist Party, and they oversaw printing and mailing of thousands of flyers, tens of thousands of flyers to men who were set to be drafted to fight in World War I. So the flyers told men to resist the draft. Many quotes from the flyer, quote, do not submit to intimidation. Assert your rights. The flyer went on to say a conscripted man is, quote, deprived of his liberty and of his right to think and act as a free man. A conscripted citizen is forced to surrender his right as a citizen and become a subject. He is forced into involuntary servitude. He is deprived of the protection given him by the Constitution. He is deprived of the protection given him by the Constitution. He is deprived of all freedom of conscience in being forced to kill against his will.

0:08:01.8 Rhiannon: Interesting argument in these flyers was an argument about the 13th Amendment. You heard there in the quote that they were saying that conscripted US citizens were being forced into involuntary servitude, right? The 13th Amendment, which abolished slavery, one of the Reconstruction amendments, obviously makes unconstitutional any condition of involuntary servitude. So they're bringing up maybe novel arguments here, right? But making connections and referring directly to the Constitution for reasons why they say that men should be resisting the draft.

0:08:37.0 Peter: Yeah. And I do want to flag that it's important that they are not just saying, resist the draft. Don't let anyone draft you. Run away. They're saying, here's a legal argument that you have a right not to be drafted. I think that's going to be important.

0:08:49.0 Rhiannon: Yeah, yeah. I think that's right. So Charles Schenck and Elizabeth Baer, they were arrested. They were tried and convicted for violating the Espionage Act. Again, the provision in the Espionage Act that made it a crime to cause or attempt to cause insubordination in the military, but more specifically to willfully obstruct recruiting or enlistment in the US military, right? So they were convicted. And on appeal, they argue that all of this activity, this is speech, this is freedom of speech, this should be protected by the First Amendment.

0:09:25.1 Peter: Right. Enter Oliver Wendell Holmes. The opinion here is written by the famed jurist Oliver Wendell Holmes. He makes a couple of points. First, he talks about the idea that if speech is dangerous enough, it won't be protected by the First Amendment. As an example, he says, look, you can't shout fire in a crowded theater.

0:09:45.1 Michael: That's the source of this example.

0:09:47.0 Peter: That's right.

0:09:48.4 Michael: If you've ever heard this, which everybody has, it's from this opinion.

0:09:50.9 Peter: Yeah, this is where it originated. So when you say that, when you use this example, you're sort of suppressing the cause of American socialism.


0:10:00.3 Michael: That's right.

0:10:00.5 Peter: In a roundabout way.

0:10:01.3 Rhiannon: You reactionary fuck.


0:10:03.9 Peter: Yeah. What he says is that if speech presents a clear and present danger of illegal activity, that is not protected under the First Amendment. That's another term that originated in this case, clear and present danger, 1994 film, Harrison Ford.

0:10:21.1 Michael: Excellent film.


0:10:21.8 Peter: Yeah. Classic. Now, one weird thing about this opinion is that Holmes doesn't really explain at length why he thinks circulating these flyers poses a clear and present danger. He just sort of says, well, look, the whole point was obviously to obstruct the draft. That's what they were trying to do, right? So, self-explanatory. What he doesn't address is that the flyers don't even really suggest that anyone violate the law, right? Only that people assert their rights, which is sort of by definition, legal, right? They're making this constitutional argument. Assert your rights. So, you know, how can suggesting that people legally assert their rights create a danger of illegal activity? Now, you can tell that Holmes knows this is a little bit flimsy. And the main indicator is that he says, well, look, in peacetime, this probably would not be a constitutional thing to do. But it's wartime. So we are going to allow it, which I thought was a weird argument to make when the issue is a draft, you know?

0:11:22.5 Rhiannon: Right.

0:11:25.4 Peter: Like there aren't usually drafts in peacetime.


0:11:26.4 Rhiannon: Yeah, exactly.

0:11:28.3 Peter: That is one of the main things about drafts that I know personally. And I realize that he's considered one of the top legal minds of all time. But when I read stuff like this, you have to remember, average IQ increases several points every decade.


0:11:43.9 Peter: So by modern standards, Oliver Wendell Holmes would probably be on the same level as like a very sharp German shepherd.


0:11:52.0 Peter: That's sort of the framing I want you guys to use. And that's really it. This is a short opinion. And like I mentioned up top, it is eventually sort of overturned. But that takes quite a while. And until then, this case was the backbone of efforts to crack down on anti-war activists. Right after this decision, you get another one allowing for the conviction of Eugene V. Debs for a speech that he gave. That is a case that we will almost certainly cover one day. But in the speech, Debs didn't advocate for anything illegal at all. But the court said that the crowd might infer a suggestion to do something illegal, so they allowed him to be convicted.


0:12:30.1 Michael: A not so clear and present danger. A veiled and present danger, you might say.


0:12:36.1 Peter: Is it present or...


0:12:40.3 Peter: So, you also had Abrams v. United States, where the court upheld the convictions of people who were handing out leaflets advocating against US intervention in Russia. Not even related to an active war, right? We're talking about the revolution in Russia. And, you know, there were exceptions, but the court generally takes an antagonistic posture toward anti-war protesters in the World War I era and to some degree throughout the 1920s.

0:13:09.5 Rhiannon: Yeah, absolutely. But it is the United States. So the antagonistic posture toward anti-war protesters really continues throughout the decades, right? A sort of small development in the jurisprudence happens in 1951, in a case called Dennis v. United States. This is a case where Eugene Dennis, who was the general secretary of the Communist Party of America, and others, were accused of advocating for violent overthrow of the US government. Actually, more specifically, they were accused of attempting to call for the violent overthrow of the US government, more of like a conspiracy to advocate for the violent overthrow of the US government.

0:13:52.3 Michael: Usually you attempt like the actual crime. You don't attempt advocacy.

0:13:55.3 Rhiannon: Right. Exactly. So...

0:14:00.6 Peter: Attempted speech.


0:14:01.6 Rhiannon: Right. No, it really is. And so these communists were convicted, sentenced to prison. The US Supreme Court upholds those convictions. Now, Peter talked about in Schenck, the development of the clear and present danger test. In this case, in Dennis, that test changes a little bit. It becomes kind of the clear and probable danger test. So from that case, quote, in each case, courts must ask whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as necessary to avoid the danger. And in the plurality's mind, in that case, the conviction was necessary to avoid the danger. There's a really good dissent in Dennis, Justice Black says, quote, these petitioners were not charged with an attempt to overthrow the government. They were not charged with overt acts of any kind designed to overthrow the government. They were not even charged with saying anything or writing anything designed to overthrow the government. Right? So the generally antagonistic posture toward anti-war protesters and let's just say it, leftists, right, socialists and communists and their speech, that antagonistic posture from the US Supreme Court definitely continues, even if the tests and the sort of vocabulary that they're using is developing over time.

0:15:31.0 Michael: Right. And it's worth noting the war in that context was the Cold War. And maybe the Korean War. But like there still was wartime, let's say, undertones.

0:15:43.3 Rhiannon: Absolutely. Yeah.

0:15:44.1 Peter: The vibes were wartime.

0:15:46.1 Michael: Right. So the next case we want to talk about to like understand the evolution of this law is Brandenburg v. Ohio. Now we're in the late 60s and it's the liberal war in court and they have looked upon in horror at, you know, the McCarthy era and all these repressive acts against speech. And this is about Ohio's criminal syndicalism law, which punishes people who advocate or teach the duty, necessity or propriety of violence as a means of accomplishing industrial or political reform or who publish or circulate or display any book or paper containing such advocacy, amongst other things. And so, what do you think would be a good vehicle for attacking such a repressive speech law after 50, 60 years of punishing leftist speech, anti-war activists? Of course, the Ku Klux Klan, baby.

0:16:48.2 Rhiannon: It's the KKK.

0:16:49.7 Michael: Let's protect the fucking white reactionary racists. In this case, they invited some like local news channel or whatever to film one of their rallies at which they were discussing their various strategies, which easily fit under this criminal syndicalism law and were tried for it and challenged it as a violation of their free speech. And they won. [chuckle] And they won a unanimous decision.

0:17:22.2 Peter: This is where we draw the line.

0:17:22.6 Rhiannon: Right.

0:17:23.6 Michael: That's right.

0:17:23.8 Peter: It's one thing to spend 50 years putting every socialist who says anything out loud in prison. It's another when you do it to the Klan.

0:17:29.0 Rhiannon: Right. Yeah.

0:17:30.8 Michael: To the Klan. At a rally where they were like literally burning a cross. Like it's, unbelievable. This fucking country, man. It's unreal. I'm not even saying they're wrong. I'm just saying.

0:17:45.1 Rhiannon: Right. No, it's so clear. That's all. It's just... Right.

0:17:48.3 Michael: Exactly. The opinion is pretty whatever. They're not very impressed with Schenck and the clear and present danger idea. I did want to mention that Douglas wrote a concurrence that I thought was very good. And there was a part I wanted to quote from it because I thought it was pretty good. I'm not even a big free speech guy personally, but I thought reading it, I was like, fuck yeah, dude, free speech, you know? [laughter] So, he says, one's beliefs have long been thought to be sanctuaries which government could not invade. The lines drawn by the court between the criminal act of being an "active communist" and the innocent act of being a nominal or inactive communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep seated fault in the infamous loyalty security hearings, which since 1947 when President Truman launched them, have processed 20 million men and women. It's good stuff. It's good stuff.

0:19:04.8 Peter: And what Brandenburg ends up doing is creating sort of a new test for whether speech is too dangerous and can actually be regulated, called the imminent lawless action test. So it's instead of clear and present danger, it's will this cause an imminent lawless action? Meaning like, is this speech going to immediately lead to a crime?

0:19:26.0 Michael: Right.

0:19:27.2 Rhiannon: Right. Or a riot. Right?

0:19:28.7 Michael: Right.

0:19:29.2 Rhiannon: Are we starting a riot here?

0:19:31.8 Peter: Like people are angry at each other and I'm like, fucking shoot him. And someone shoots the guy. That's not so protected. Right?

0:19:35.3 Michael: Right. You can write an essay or a pamphlet that you distribute extolling the virtues of property crime as a method of civil disobedience and achieving political reform and citing historical examples. But you can't go to protest and get on a megaphone and be like, we need to break those fucking windows right now. Grab a brick, everyone. Right? Like that's the distinction they're trying to draw. Which is a fair distinction, I think actually. [laughter]

0:20:09.4 Peter: Yeah. You can only do it in dorky ways.


0:20:09.5 Michael: That's right. So I do think, you know, and something Douglass mentions, and I think something this highlights as well though is, as we sort of hinted at up top, things are different during war, not that they necessarily should be, but that they are. I mean, even Douglass calls the wartime powers of the government, the "great leveler", although he still doubts that Schenk was rightly decided. And I think he's correct on that point. I think there are a lot of people in power who view one of the primary purposes of the government as the ability to wage war. Right? The ability to raise and maintain a standing army, the coordination of the states in the armed forces, and the ability to, as we've said in other cases, wage war, "successfully". And they view restrictions on your civil liberties as incident to the necessity of waging war successfully.

0:21:11.2 Michael: We can't have dissent at home. We can't be fighting two fronts. Right? This is the attitude of a lot of people in the political establishment on both sides of the aisle, both parties, which means that there is often a lot of tolerance for restrictions on wartime speech. And so I think now it's largely considered Schenk was wrongly decided. I think you would have a hard time justifying an opinion that in the abstract basically said that like Britain would've been justified in jailing Thomas Paine for circulating common sense. It sort of goes very much against the principles the country was literally founded on [laughter], like in a very literal way. But nonetheless, it's not hard to imagine similar things flying today. Right? Like if you lived through 9/11 and you remember what the media and cultural climate was then, or if you are involved at all in any sort of pro-Palestinian or anti-war activism right now, I'm sure you have already felt this, you've already seen this, if you're paying attention, and that's what a lot of this stuff is about. A lot of this where you see people trying to conflate anti-war with being pro-Hamas or pro-terrorism is about creating the conditions for wartime restrictions on speech. We can see it even more starkly in other western nations. Germany and the UK have both already like taken serious steps at limiting protests. I think Germany has broken up like something like a hundred pro-Palestine protests.

0:22:56.8 Rhiannon: Yeah. France as well. Yeah.

0:23:00.2 Michael: Yeah. France.

0:23:01.2 Peter: Yeah. That's why as much as we have a podcast about our judicial system sucking ass, First Amendment, it comes in handy, you know? 'Cause those countries are just like, "Well, you can't say that. No, you can't."


0:23:11.6 Peter: You wanna live in France? Then we're all in on the IDF.

0:23:15.1 Michael: That's right.

0:23:18.0 Rhiannon: Right, right. [laughter] Yeah. And wartime speech distinction that has developed in our jurisprudence, basically from the beginning of the real jurisprudence, the modern jurisprudence on the first Amendment, right, starting in the beginning of the 1900s, the 20th century, the thing about distinguishing between speech during peace time, and that you have more freedom of speech during peace times versus wartime when freedom of speech can be constitutionally restricted and the Supreme Court has given the green light to that, the issue as we come into even more modern times is the question about, well, we're at war all the time, right? The United States has launched a series or joined a series of forever wars. And so there's always sort of the open question about, well, are we in a time where I have my first amendment rights, or are we in a time where I don't? Right?

0:24:13.4 Michael: Yeah. I just saw something the other day, just yesterday that was like, Iran backed forces up attacks on US military in Iraq and Syria, and I was like, what? Like... [laughter]

0:24:26.0 Peter: Always and never at war forever. Right?

0:24:30.7 Michael: Didn't the Iraq war end in like 2014? Like... [laughter]

0:24:35.2 Rhiannon: Right. Exactly.

0:24:37.0 Peter: Okay, let's take a break.

0:24:37.5 Rhiannon: Okay. We're back.

0:24:41.4 Peter: You know, usually with a case like this, we need to think a little bit abstractly about how it relates to modern events, not so today.

0:24:48.7 Rhiannon: No.

0:24:53.0 Peter: The events in Gaza have led to activists, students, politicians who speak out for Gaza, who speak out for Palestinians being branded as like endorsing terrorism or even actively supporting terrorism. And maybe it makes sense to divide this into two conversations. First, we're fundamentally talking about the First Amendment, so we wanna have a conversation about attempts to unconstitutionally suppress speech via the government. Then we can talk about people being punished like socially or professionally, for example, for supporting Palestine. Let's start with the ADL, the Anti-Defamation League.

0:25:35.9 Rhiannon: Woo.

0:25:41.3 Peter: Hard to summarize the ADL's deal. They are ostensibly a civil rights organization focused on combating antisemitism, but they have like a very weird history of being extremely hostile to Palestinian rights activists. They consistently deem calls for Palestinian rights to be antisemitic. And just to give you a taste, in the late 90s, they were discovered to be bribing police to illegally surveil Palestinian rights activists...

0:26:03.4 Rhiannon: That's right.

0:26:04.1 Peter: As well as anti-apartheid, as in South African apartheid activists.

0:26:08.6 Rhiannon: Yeah, that's right.

0:26:09.9 Peter: If you wanna deep dive, our friends at Know Your Enemy did a very good one full episode about them that you should listen to.

0:26:19.8 Michael: Yeah, it was three authors from Jewish Currents. It's very good stuff. It's very sharp.

0:26:24.4 Peter: So the ADL has set its sights on Students for Justice in Palestine, SJPA campus Palestinian rights group with a bunch of chapters all over the country. The backstory here is that SJP National, like their national leaders, put out a statement in the wake of the 10/7 attacks that pretty unequivocally supported the attacks, not just like resistance as a principle or something like that, but the attacks themselves. And this resulted in what I feel was some pretty justified outrage and condemnation, but the ADL went a step further. They penned a letter addressed to over 200 university presidents and deans across the country making "an urgent request that your university investigate the activities of your campus chapter of Students for Justice in Palestine" for materially supporting terrorism.

0:27:23.2 Rhiannon: Materially.

0:27:24.1 Peter: Materially supporting terrorism. What they didn't do is provide even a shred of evidence that the group is providing material support to Hamas or anyone else. None. There are two issues here. One, no matter what you think of the statements made by SJP National, they're requesting investigations of everyone involved in the organization, the vast majority of which are just students in local chapters who have nothing to do with those statements. So they really have no relation in any significant way to the statements. Two, how many times have you heard that the First Amendment protects like even the most disgusting and objectionable speech? You can legally say vile shit of all types. Right? That is sort of the whole point of the First Amendment.

0:28:12.8 Michael: This case that we're discussing was about a Klan rally. Where they were burning across and talking about organizing for a white supremacist state.

0:28:20.6 Peter: This is supposed to be sort of the type of speech that you need the first amendment for, right? Like politically objectionable, maybe culturally and socially objectionable speech is protected as long as it isn't like directly inciting violence. What the ADL is requesting is that the government investigates students who are expressing speech it doesn't like, or more accurately investigate students who are like loosely associated with people who are expressing speech it doesn't like. So what you're seeing runs parallel to what we saw a hundred years ago in Schenk. Right? It's the purposeful collapsing of the distinction between clearly protected speech and material support to an enemy.

0:29:03.9 Rhiannon: Right. Material.

0:29:05.4 Peter: Funding. Weapons.

0:29:07.2 Michael: The whole point of attaching the word material to support is to differentiate it from mere advocacy or internal thoughts and beliefs. On the one hand you have, yeah, I support them, but I'm not really doing anything for them, versus on the other, material support, a more serious and tangible and less protected thing, right?

0:29:40.7 Rhiannon: Yeah. I think that's exactly right. And so this conflation between material support and speech is really a major, major concern right now because what it is inviting, what the ADL is sort of inviting in this letter and what culturally accepting this conflation of material support and speech, what that all is inviting is more law enforcement, government investigation, surveillance, and ultimately punishment on the basis of speech. Right? There are federal laws that of course ban the material support of terrorism. Those are serious federal criminal statutes for which people go to prison, right? These are serious charges. And so the material support for terrorism laws, MST laws, those ban conduct like Michael just said. Right? They don't ban speech. Right? They being material support.

0:30:35.3 Peter: Just so people are clear, because we're talking about what the government can do, if you post on Facebook being like, I think America deserved 9/11. Right? You might lose your job and some friends. But the government can't fucking arrest you for it. But if you're like, I'm gonna send money to Al-Qaeda... Right?

0:30:54.4 Rhiannon: Right. Exactly.

0:30:56.9 Peter: You have now crossed a line toward material support where the government is allowed to take action.

0:31:00.1 Rhiannon: Right. Exactly. And so under these laws, under the material support for terrorism laws, MST laws, the conduct that is banned, it's called coordinated advocacy. Right? So if in coordination with or taking direction from a designated terrorist organization, you take a certain action, then that conduct, again, not speech, can be construed as material support for terrorism. Right? And again, in this relationship of conduct and speech, the case that's on point about this interpreting MST laws, a case called Holder v. Humanitarian Law Project, that case says that you are allowed to do what exactly we're talking about. You are allowed to do what is called independent advocacy. Right? You can say, I support the liberation of Palestine, of course, you can say, I believe in armed struggle. I believe in armed resistance, right? That's all protected speech. That's not conduct that provides material support for terrorism. Right?

0:32:01.2 Rhiannon: But where organizers and activists and students right now, especially students, are vulnerable to scrutiny in these areas, and they're vulnerable to organizations like the ADL muddying the waters and inviting this conflation, inviting suspicion on the basis of speech, they're vulnerable in areas where the speech is not necessarily an I statement. Right? It's not clearly a person expressing their own personally held belief, but instead, when it's an expression, still just speech, but speech that could be interpreted as sort of more of a like communal message, shared mutual goal, right? With a designated terrorist organization. That's what the ADL is taking advantage of, a sort of gray area of speech, they're taking advantage of in the SJP national statement. Right? So saying something like, we heed the call of the resistance, right? Saying something like, our fighters, identifying with a group that has been designated as a terrorist organization by the United States. This is still speech, it is not material support for terrorism, but culturally in the moment right now, it invites scrutiny and suspicion and that speech becomes the basis of law enforcement intervention, which is exactly, exactly what the ADL is trying to exploit here.

0:33:28.8 Rhiannon: And you see that in the Biden administration empowering federal law enforcement and campus law enforcement to surveil campuses, to surveil student organizations and student speech. Right? And again, what we're pointing out here is the problem with this is that the speech alone, not actual material support, the speech alone becomes the basis for this suspicion becomes the basis for law enforcement intervention into all of these students organizers, activists lives. And the point of that is punishment, but even taking a step back, is to discourage, disband, weaken student organizing. Right? Weaken activism, organizing and pro-Palestine speech, period. Right?

0:34:23.8 Michael: Stifle dissent.

0:34:27.8 Peter: Yeah. And I think it's worth reinforcing again that 99% of the targets of the law enforcement actions against SJP, for example, have nothing to do with the statement that is like forming the basis of this argument that maybe there's material support for terrorism going on. Right? It's just the thinnest veneer of an excuse.

0:34:48.5 Rhiannon: Exactly. And that's what it is, is an excuse. I'm glad you used the word Peter, because on this podcast we talk about the criminal system using excuses all the time when the point is the punishment, the point is the cruelty. Right? And so it's not just that using speech to invite law enforcement surveillance and investigation is a problem. There are major concerns and material consequences for that invitation. Right? When there is increased scrutiny into student organizations, it becomes for law enforcement, what are all of the things that students do and say, right? That can be criminalized and prosecuted, that end up having nothing to do with the activism or the organizing or anyone's views on Palestine or what anybody said. Right? But actually the consequence can be that because law enforcement is now surveilling people, investigating people, well, they find that somebody's immigration status can be taken away. Right? Or they find that something somebody did last weekend can result in the loss of their student housing, or they stick another criminal charge, based on anything that they found because it is the invitation of this surveillance into people's lives. So it's not necessarily that they charge you with material support for terrorism.

0:36:10.9 Michael: That was also why I wanted to read that one bit from that Douglas concurrence where he really focuses on investigations. Because I think investigations themselves are in imposition on your liberty.

0:36:21.7 Peter: Of course.

0:36:22.5 Rhiannon: That's exactly right.

0:36:26.1 Michael: They chill speech, they're a punishment. They're a clear message from the government that what you're doing is disfavored. They'll find whatever way they can to punish you for it.

0:36:37.6 Rhiannon: Yeah. And I just wanna emphasize again, that part of the punishment, a big part of the punishment apparatus, the point of the punishment in these cases, in this situation, is that ultimately organizing and activism is disbanded. It is discouraged. It leaves organizations weak. So that the result is there is no speech at all.

0:36:58.3 Michael: Right. And that also has me thinking about other things we've talked about on this podcast before, which is the tools that are available to the government in the wake of 9/11 and how they've been used and abused in similar situations in the past. We talked about this stuff in our episode on ACLU V. Clapper with the NSA's mass surveillance. We've talked about this in Ashcroft v. Iqbal which involved rounding up Muslims and throwing them in detention. We have created in the last 20 years a massive domestic surveillance apparatus with very little oversight that is often turned towards subversive speech. And right now it's very clearly and explicitly being turned towards pro-Palestinian speech. There's reports of the Biden administration doing a task force. There's the FBI director saying they're concerned about Hamas inspired terrorist attacks on US soil. There is the Biden administration trying to tell the DOJ and the FBI to be looking at college campuses. There's just a ton of reporting on this right now, and if you listen to our podcast at all, or paid attention to the last 20 years at all, you know what that means. That means that pro-Palestinian activists are currently being surveilled with little or no protection for their civil liberties, right?

0:38:40.0 Michael: I mean, I don't wanna sound melodramatic or anything, but I think it's more likely than not that at the very least Rhiannon's telephone metadata is currently in some database being queried and part of a network of people who the NSA is looking at, at the very least, which means, depending on what degree of freedom she is from the original source, that Peter and my telephone metadata probably is too.

0:39:09.2 Peter: Despite being firm allies of the United States government.


0:39:16.0 Michael: And that most likely will not have any major consequences for us, but it's worth considering that, it's worth considering that when a major presidential candidate is talking about how leftists are vermin that need to be extinguished and what he could do with the apparatus of the state, that we are probably already sort of swept up in, that's not an exhortation to vote or to support Joe Biden or anything. That is a reminder that these things are happening and they're happening right now.

0:39:51.7 Speaker 1: Statement of reality, yeah.

0:39:53.5 Michael: And to that point, the legislative authorization to use a lot of these surveillance tools is set to expire, and there's currently a debate going on about whether activists should be fighting to fully let it expire or if they should be fighting for much more thorough oversight, it's a very complicated debate, I don't think it's worth getting into in detail, I recommend a very good post on it by Spencer Ackerman on his blog, Forever Wars, we'll drop the link in the details of the episode, it's called the Anti-Surveillance Coalition's High Stakes Gamble. But I think this is another thing, if you are concerned about speech right now that you should be calling your representatives about, and I recommend looking at this article and then making a judgement call for yourself whether you are gonna be supporting this bill or if you're gonna be supporting the full expiration of this surveillance authorization.

0:41:00.9 Peter: I have another piece of advice, which is don't talk too much shit about Mormons, that way you stay on the good side of your future FBI handler.


0:41:12.6 Rhiannon: Like Peter said up top, right, there's a First Amendment conversation here with what the government is doing in response to speech, in order to suppress speech, etcetera, and then there's sort of like a cultural discussion here about maybe "soft suppression of speech" as opposed to government suppression of speech, even though calling it soft suppression, it does have very real consequences, but in thinking about this kind of government suppression versus maybe a private actor suppression of speech, you see this playing out on college campuses exactly, where you have what a public university can do versus what a private university can do. Talking about direct government suppression of campus speech, Governor DeSantis in Florida has ordered that SJP chapters be disbanded at Florida state universities, that is very, very likely to result in litigation on the basis of the First Amendment.

0:42:15.5 Rhiannon: But then on the other hand, you have private institutions who are not constrained necessarily by the First Amendment, but by their own sort of rules of engagement, their own sort of policies that they have regarding student speech. So Brandeis University de-recognized their chapter of Students for Justice in Palestine, Columbia just de-recognized two student chapters, Students for Justice in Palestine and JVP, Jewish Voice for Peace, at least for the rest of the fall semester, and giving them a bunch of conditions that these student organizations have to meet in order to be able to operate as student organizations on the Columbia campus in the spring semester.

0:42:58.5 Rhiannon: So you have both government and non-government actors working here sort of in the same way with the same results. All of this though, again, the way these institutions are acting, the basis is speech, the basis is student speech. Right? So talking about other non-governmental actors coalescing around the suppression of Palestine solidarity on the basis of people's speech, again, not necessarily First Amendment violations here, I think we just wanna be highlighting the sort of cultural discourse, suppression of speech that's perpetrated by corporations and other powerful non-government institutions like private colleges and media, this is indirectly or directly supported by the government, it is accepted because our government accepts it and participates in it, and because ultimately it is in favor of American hegemony.

0:43:57.3 Rhiannon: One big area is in the workplace. I spoke to an attorney from Palestine Legal recently, who said that terminations and negative employment actions related to pro-Palestine speech are obviously extremely up in incidents, in frequency over the past month or so. The attorney said that usually Palestine Legal has a handful of these cases in a year where somebody calls and says I was fired or that I've had some other negative employment action taken against me because of pro-Palestine speech, but the attorney said in the past month, there have been triple digits, hundreds of these reports, cases coming in to their organization.

0:44:40.9 Rhiannon: Also in a sort of private or at least non-government actor way, there is a complicit media apparatus that is working in tandem with doxing apparatus, if you will, right? So if somebody posts something on social media that is pro-Palestine in nature, somebody else doesn't like it, looks up their employer, notifies their employer, hey, look, your employee made this statement, and negative employment actions or termination happen there, sometimes this is student-related too, where students put their name, sign on to a statement, and then jobs or housing or other institutions that they interact with in daily life rescind their offer, tell them they can't come anymore. This happened to Ryna Workman, a law student at NYU, their offer... Their job offer from the law firm, Winston and Strawn was rescinded when Ryna made a statement that was sent to NYU Law School's Student Body.

0:45:47.4 Peter: And by the way, Ryna if you're listening, Winston's mid, so you can do better. You'll be fine.


0:45:56.3 Rhiannon: And there's also in this kind of complicit media and doxing space where non-governmental actors are working to suppress speech, there's kind of like this straight up doxing apparatus that results in death threats, harassment, right? Really complicit right now is the New York Post, Fox News, the entire Murdoch apparatus, they are down to run with any story, any report of a hyperbolic, oh, I saw somebody supporting terrorism or whatever, right?

0:46:30.9 Peter: Right. The doxing truck at Harvard, can we talk briefly about this? There was a letter written by some students at Harvard that said more or less that the Israeli government bears responsibility for the 10/7 attacks, which by the way, whether you agree or not, is a common sentiment in Israel, the majority of citizens in Israel when polled said that Netanyahu bears responsibility based on his handling of Gaza for the 10/7 attacks, that resulted in a billboard truck being driven around Harvard with the faces and names of the students who signed the letter, just something that is designed top to bottom to lead to people being harassed, punished, obviously in some cases, potentially having violence enacted upon them.

0:47:25.4 Rhiannon: Yeah, absolutely.

0:47:26.1 Peter: There's one thing I wanna talk about in this discourse, and it's the sort of prevalence of criticism for the phrase from the river to the sea, Palestine will be free. A congresswoman, Rashida Tlaib, was censured for using that slogan, and it's a sort of flash point for this discourse because people seem to believe that it evokes genocidal imagery in their mind, and all I wanted to say about that is, don't let yourself be fucking gaslit. My take on it substantively is very simple, a call for the freedom of a marginalized people is not a call for the oppression of another people or violence against another people, every media outlet discussing this will use terminology like, oh, the slogan is understood or interpreted as calling for genocide, because they know that they can't claim that it literally does. Right?

0:48:23.1 Peter: The ADL changed their web page about the slogan like three weeks ago to say that it's anti-Semitic, when before it just was referring to it as a generic Palestinian rights slogan, but I don't wanna get carried away defending the slogan itself, maybe you're someone listening who thinks that it does evoke violence or you just don't like it. And I'm probably not going to change your mind. What I will say is this, when it comes to the pro-war faction in this country, they are allowed to say whatever the fuck they want. There are no limits, the President, Congress, they will openly support actions that we all know, that we all know are killing civilians by the thousands, thousands of children dead at the hands of a military campaign that they openly and proudly support. Brian Mast, a congressman, openly stated that he didn't believe that there were Palestinian civilians, which by the way, is what the letter from SJP said that everyone got outraged about about Israeli civilians, the exact mirror.

0:49:23.1 Peter: No consequences for him, nothing. But when it comes to what we are allowed to say, even an abstract slogan that can be potentially taken the wrong way, is unacceptable, they will look you in the eyes and call you a terrorist for chanting a slogan while they kill over 100 children a day. So don't take the bait, don't play these fucking games, you do not need to buy into this framing at all.

0:49:48.7 Rhiannon: Yeah, they're recasting a pro-Palestine expression as hate speech, as pro-terrorist, as automatically and by default anti-Semitic, that is also a form of suppression that is also designed so that speech is discouraged, so that organizing is discouraged, so that people do not speak out because of not just law enforcement consequences for your speech, but all the socio-cultural, all the outside of the sort of law enforcement hard consequences, all of the social consequences of your speech, right?

0:50:22.5 Peter: Right. And I have one final thought about all of this, the last few years have seen a big uptick in discourse about free speech on campus, primarily revolving around conservative speech, the rights of far-right speakers, for example, to speak freely on campus, and some people on the left have said, hey, we should support the cause of free speech, even when it comes to conservatives, because it will eventually help protect speech from the left too, which maybe sounds nice in theory, but I think it's worth observing how it actually works. How it actually works is that the people and institutions willing to mobilize in defense of conservative speech simply will not mobilize in defense of speech from the left, period. They are not invested in the project of free speech, they are invested in the project of conservatism.

0:51:16.4 Peter: So almost all of the organizations and people who come out in defense of conservative freaks on campus are either silent, equivocating or just calling leftist students terrorists, that is how it works, that's why collaborating with bad faith actors gets you fucking nothing.

0:51:36.0 Rhiannon: Right.

0:51:36.0 Michael: Right.

0:51:37.7 Peter: And circling back to Schenk, it has always been true in America that certain types of speech are more protected than others, during World War I, socialist anti-war protesters getting locked up for advocating the assertion of people's rights, and now they have sort of reinvented a similar angle, collapsing this distinction between speech and material support for terrorism, that is how modern anti-war activism gets attacked in this country by powerful institutions, by politicians, by media, it is the continuation of an anti-left project that is over a century old. That's why we wanted to do this case now, that's why it still rings out, despite the fact that in a lot of ways, it's no longer legally very relevant, this is the reality of speech rights in America right now, that they are distinctly not for everyone.

0:52:34.8 Rhiannon: Right.


0:52:39.8 Peter: Next week, Richardson v. Ramirez, case about felon disenfranchisement from 1974. You can imagine which way that goes if you read the news, if you're someone who reads every now and then.

0:52:53.6 Rhiannon: Woah, somebody who's convicted of a crime and voting rights? No, no, no, no. The Supreme Court says, no, no, no, no, no.


0:53:02.5 Peter: Follow us on social media @fivefourpod, subscribe to our Patreon,, all spelled out, for access to premium episodes, special events or Slack, all sorts of shit. See you next week.

0:53:20.5 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, Our artwork is by Teddy Blanks, @chipsny, and our theme song is by Spatial Relations.

0:53:47.9 Rhiannon: The best thing Joe Biden has ever done has said there are at least three genders.

0:53:53.3 Peter: At least three...

0:53:54.6 Rhiannon: The worst thing he's ever done is funded a genocide.


0:54:01.8 Rhiannon: At least three, I mean...

0:54:04.4 Peter: At least three...

0:54:05.3 Rhiannon: He's like, "A boy, girl, something else."

0:54:06.5 Peter: Exactly. Well, he's like, "It's not two. It's not two."


0:54:11.4 Peter: You don't have to say spectrum or whatever. We appreciate the effort Joe.

0:54:15.7 Rhiannon: He kind of ate with that, yeah.