Harvey Silverglate: Freedom of Speech | Lex Fridman Podcast #377
- It is the most important
right that Americans have. It's not a coincidence or an accident that it's named in the First
Amendment to the Constitution. Without it, no democratic
society can be democratic, for long. And I'm an absolutist. That is, I believe that, for
example, people say to me, "But what about hate speech?" Well, hate speech is much more
important than love speech, and the reason is, I'm much
more interested in knowing whom I should not turn my back on, than I am interested in
figuring out who loves me. - The following is a conversation
with Harvey Silverglate, a legendary free speech
advocate, co-founder of FIRE, the Foundation for Individual
Rights and Expression, and the author of several books on the freedom of speech
and criminal justice, including "The Shadow University: The Betrayal of Liberty
on America's Campuses". Harvey is running to be on
the Harvard Board of Overseers this year with a write-in campaign, so you have to spell his name correctly. Silverglate. Promising to advocate for free speech and to push for reducing the size of Harvard's administration bureaucracy. Election is over this Tuesday,
May 16th at 5:00 PM Eastern. To vote, you have to be Harvard alumni. So, if you happen to be
one, please vote online. It's a good way to
support freedom of speech on Harvard campus. Instructions how to do so
are in the description. As a side note, please allow me to say that since there are several
controversial conversations coming up, I tried to make sure that this podcast is a
platform for free discourse, where ideas are not
censored, but explored, and if necessary, challenged, in a thoughtful, empathetic way. It's by having such
difficult conversations, not by avoiding them, that we can begin to heal
divides and to shed lights on the dark parts of human
history and human nature. This is the Lex Fridman Podcast. To support it, please
check out our sponsors in the description, and now, dear friends, here's Harvey Silverglate. You co-founded the Foundation for Individual
Rights and Expression, also known as FIRE. A legendary organization that fights for the freedom of
speech for all Americans in our courtrooms, on our
campuses and in our culture. So, let's start with a big question. What is freedom of speech? - First of all, the organization
when I co-founded it, in 1999, was called the Foundation
for Individual Rights in Education. It focused on free speech issues on
college campuses in academia. And only earlier this year did
we decide to expand our reach beyond the campuses,
which is why the name, although the acronym, FIRE, remains, it's now the Foundation for Individual Rights and Expression. - [Lex] The E used to be education. - E used to be education,
it's now expression. And we basically do a lot of
the cases the ACLU used to do. The ACLU now, they're a
progressive organization, rather than a civil
liberties organization. And we've taken the role
of dealing with free speech in the society generally, and now this is a particularly, and you are prone to censorship. Everybody thinks they're right
and that people who disagree with them should not be
able to voice their views. It's a very difficult period right now, both on campus and off campus. It's about as intolerant
an era as I can remember. I'm gonna be 81, May 10th. I was born on Mother's Day, 1942. And I can't remember it being this bad. I was born during the McCarthy era. - [Lex] So that says a lot. - It sort of reminds me of that. - Well, let's start with almost
a philosophical question, a legal question, a human question. What is this freedom that
you care so much about that you fought for so
much, freedom of speech? - It is the most important
right that Americans have. It's not a coincidence or an accident that it's named in the First
Amendment to the Constitution. Without it, no democratic society can be democratic for long. And I'm an absolutist. That is, I believe that, for
example, people say to me, "But what about hate speech?" Well, hate speech is much more
important than love speech, and the reason is, I'm much
more interested in knowing whom I should not turn my back on, than I am interested in figuring out who loves me or who likes me. So, hate speech is most
important, in my view, and yet, it's banned in,
for example, schools. It's unbelievable. Kids are not schooled into understanding the glory
of the First Amendment, when schools say to them
they shouldn't say things that are gonna make somebody feel bad. The purpose of speech is to express honest views that people have. So, I believe hate speech is
as important as love speech, and in my view, it's more important. - So it should be brought to the surface, rather than operate in the shadows? - Absolutely. Absolutely. - What is the connection
between freedom of speech and freedom of thought? - Well, in a free society, thoughts start in the brain and then they come out the mouth. So, they are different
ends of the same spectrum. - So, to you, the censorship of speech eventually leads to a
censorship of thought? - Of course. Censorship of the mode by which other people
know what you're thinking. - So there's some aspect of our society, that thinking is done collectively, and without being able
to speak to each other, we cannot do this kind
of collective thinking. - Correct, and the theory
is that, ultimately, out of speech comes truth. That isn't necessarily so, but I do think that when
there's free speech, better decisions are made, because people put their
views on the table in a frank, accurate way, and then those views mix together, and clash, and out of that, usually, comes the better decision. Not always, but usually,
or more often than not. But if somebody is not allowed to sit at the table of decision making, then the decision making
process is poorer, less robust, less diverse, and
ultimately less successful. - So can you elaborate on the idea of free speech absolutism? So... Hate speech can be quite painful to quite
a large number of people. Does this worry you?
- Yeah. Living in a free society
requires that you expose yourself to some discomfort. You could call it pain. It's maybe emotional pain.
It's not physical pain. But it's the price we pay
for living in a free society. Every so often, we're insulted,
we're emotionally hurt. Think of the alternative. All the alternatives are worse. Nobody ever promised us a rose garden. We're lucky to be in a country
that has the First Amendment. It's also the most diverse
country in the world, because of immigration. I mean, my grandparents
on my father's side came over from Russia, on my mother's side,
came over from Poland. I'm very happy that my
grandparents came in from Russia. I would not want to be in Russia today. I'd probably be sharing a cell with a Wall Street Journal reporter. So, I'm thankful that they came in, and this is a great country. It's got troubles right now,
but what country doesn't? And we've had, before we had a civil war, we had segregation. We had the decimation of the Indians. We're not perfect. But it's the best place in the world for somebody who values liberty. - So you don't think that hate speech can empower large groups that eventually will lead to physical action, to physical harm to others? - No, I don't. I think that we have
developed a culture in which it's understood that if you
don't like what you hear, you talk back. You write something. We don't punch each other.
We insult each other. Is insulting great? Well, I don't know. It's okay. I used to, as a kid in
Brooklyn where I was born, I was born and raised in Bensonhurst, we used to say, "Sticks and
stones can break my bones, but names can never harm me." And it's absolutely true. It what was true when I was
five and it's true when I'm, I'm almost 81. So, I've lived a long
time, I've seen it all, and talking from experience,
as well as theory. It's what happens when you reach your 80s. (Lex chuckles) - I read that you had this line that "You cannot be protected from
being called an asshole." - Correct.
- (chuckles) Okay. - [Harvey] Especially
if you're an asshole. - (laughs) Well, that's... But you don't have to be an
asshole to be called an asshole. - [Harvey] That's correct. - And I think the internet
has taught me that. - Well, the internet has
posed a particular challenge to free speech absolutists
because some of the stuff that's on there is god awful. But I have no different
rule for freedom of speech on the internet than I have
in newspapers or in lectures or in classrooms, or
conversations among people. - What do you think
about the tension between freedom of speech and freedom of reach? As it's kind of sometimes termed. So the internet really
challenges that aspect. It allows speech to become
viral and spread very quickly to a very large number of people. - Yeah, well, you know,
we've had revolutions in the modalities of communication. After all, newspapers
were the first challenge. Radio and television
posed a new challenge. The FCC tried, but ultimately gave up
the attempt to control obscenity, for example. And the Supreme Court
has been pretty close. The one thing that liberal and conservative supreme courts... Right now we're in a conservative era, due to Trump nominations. During much of my life,
it was the Warren Court. It was William O. Douglas, Brennan. It was a liberal court. One thing they agree on is free speech. They don't agree on much else, but they do agree on free
speech and I think the reason is that they recognize that, well, my group is in the ascendance today, but it may not be tomorrow
and I want to have objective, clear rules, so that
when I'm in the minority, I'm able to voice my opinion. And so it's one of the few things that both sides of the political
spectrum agree on. The only people who don't are the people way over on the right
that I call the fascists, and the people way over on the
left who are the communists. But with respect to most people
on the political spectrum, Republicans, Democrats,
socialists, libertarians, they agree on the primacy of free speech, because it protects them,
when protection is needed. - So, to you, even on the internet, free speech absolutism should rule. - Yes. Nobody's gonna die. Remember, death threats are not protected. Nobody's gonna die. So, people are gonna be
a little bit insulted? That's the price you pay for
living in a free society. And it's a small price, in my view. Some people don't have as
tough a hide as others? Well, then develop it. I don't mean to sound cruel, but you're living in a free society. Develop a tough hide. - So that's the cost of
living in a free society? - [Harvey] Yep. There's a cost. - The thing is that it
can really hurt, at scale, to be cyber bullied, to be attacked, for the ideas you express or
maybe ideas you didn't express, but that somebody
decided to lie about you, and use that to attack you. - Well, first of all,
there are some exceptions to the First Amendment. Libel and slander is an exception. Direct threats are an exception. If you say such and such,
"I will murder you." That is not lawful. If you say to somebody... If you say about somebody, "Oh, you know. You beat your wife." That is not lawful, if in fact, the person knows you don't beat your wife. There are some limits. Defamation is one. Direct threats are another. So, the First Amendment is not absolute, but it's more absolute than
it is in any other society, and it's pretty near absolute. For example, fraud. If you sell somebody a car, and you say, "Oh, this is in great running shape, and in fact it's an old jalopy, and it's not gonna make it more
than 10 miles, that's fraud. That's not free speech. So, free speech is not absolute,
there are these limits, but they're very narrow,
specific categories of limits. - But there's gray area here, because, while legally you're not
allowed to defame a person, in the court of public opinion, especially with the aid of
anonymity on the internet, rumors can spread, at scale. Thousands, hundreds of
thousands of people, can make up things about you. - You have to defend yourself. - [Lex] Using more speech. - Through freedom of speech,
we're big boys and girls. You have to defend yourself. In some societies, if you say something... Right now, if you say
something nasty about Putin, you'll end up in the gulag. If you say something nasty about Biden, you end up in "The New York Times". Where would you rather be? - Well, let's talk about
the thing you've done for over 20 years, which is
fight for the freedom of speech on college campuses. So, why is freedom of speech
important on college campuses? - Well, it's important
everywhere in the society, but it's most important
on college campuses. Why? 'Cause that's where we
educate our young citizens. And if you are educated
under a notion that some dean can call you on the carpet, because you say something
which is considered racist, or you can say something
which is considered dangerous to social cohesion, then it's not a liberal arts college. The theory that I used in
"The Shadow University"- - A book you've written.
"The Shadow University". - [Harvey] 1998. - 1998. You were ahead of a lot of
these things, by the way. - I'm afraid that as a pessimist, I always saw the bad side of things. - "Betrayal of Liberty
on America's Campuses: The Shadow University". A book you co-authored with Alan Charles. - Yes, with one of my Princeton
classmates, Alan Charles, of course, who's now an emeritus professor of enlightenment history at
the University of Pennsylvania. I only taught for one semester
and I can go into that later. The reason that I did not
continue to teach in colleges. It was Harvard Law School. I taught a course in the mid-1980s. But in any event, the college campuses are
one of the most important for free speech because it's
where people get education. And if you don't really
get a good education, if certain points of view are
not allowed to be expressed, because education comes
from the clash of ideas, and you then have to decide... This is how you become a thinking adult. You have to decide which
ideas make more sense to you, which ones you're gonna follow. The college experience is transformative. And if there is censorship on campuses, it's highly destructive of
the educational enterprise and ultimately to the entire society. We have, in the sciences, we have scientific method. Scientific method is you try experiments and you see which ones work
and then you develop theories, based upon the results of experiments. Well, this is not much different from every other aspect of life. You have to entertain different
views on different subjects. You hear all the views
and you make a decision as to which one's accurate
and which one's not. So, the scientific method
I apply to non-science, to history, to journalism. To all of these things. - So that scientific
method includes ideas. Hateful ideas, also.
- Correct. If you don't allow hateful ideas... I mean, when scientists do
experiments, nobody says to them, "Oh, you know, don't do that experiment, because it would be very bad, if that turns out to be
accurate, that outcome." That's not the way it works. Every point of view is
thrown into the marketplace, whether it's science or
whether it's non-science. - And that includes the kind of ideas and the kind of discourse
that might actually lead to an increase in hate on campuses? - The First Amendment prohibits speech which is
liable to produce imminent, imminent violence. - Yeah.
- So, for example. The exception is yelling, falsely, falsely yelling "fire" in
a crowded movie theater. A lot of people misstate it. They say, "Oh, the exception is yelling 'fire' in a movie theater." Well, if there's really a fire, you're performing a
real important function. - [Lex] They usually
don't mention that part. - But it's falsely yelling "fire". You could start a riot. People would be crushed trying to get out. So, that's one of the exceptions
to the First Amendment, as the Supreme Court has defined it. There are very few exceptions. And defamation is an exception. I'm not a fan of that exception, frankly, but if you say something about somebody that has serious
implications in their life, in their ability to earn a living, if you accuse somebody
of being a pedophile, when it's not true,
that person can sue you. My own view is, I think that's
an unfortunate exception, but I'm not on the Supreme Court. I think that I'm with... A friend of mine was Nat Hentoff. Nat Hentoff who wrote for decades for "The Village Voice" in New York. He was a friend of mine. He was a free speech absolutist. And he wrote a fabulous book called, "Free Speech For Me, But Not For Thee". And he was an absolutist
and I'm with Nat Hentoff. - Even on the defamation aspect. I agree with you in some sense,
just practically speaking, it seems like that the best way in the
public sphere to defend against defamation is with more speech. - [Harvey] Correct. - And through authenticity,
through authentic communication of the truth, as you see it. - Yeah, you know, at
times, "The Boston Globe" has said something about me
that hasn't been accurate. They have invariably published
my letter to the editor. I'm also not bashful about getting
in touch with the reporter. At the end of every column, they give the reporter's email address. And I know people say
that I have more access to the media than most people, but all that means is I get
defamed more than most people. - Can we also comment on, from the individual consumer of speech, there's a kind of sense
that freedom of speech means you should be forced to read all of it. Freedom of speech,
versus freedom of reach. We, as consumers of speech, do we have the right
to select what we read? - We do, and nobody can
force us to sit in a room and listen to a radio program
that we don't wanna listen to. Nobody can force us to read a
book that we don't wanna read. The whole motion of freedom
of speech means that people have autonomy on their choices. - In order to form a complete
mind and complete human being, there's a kind of
tension of that autonomy, versus consuming as many varied
perspectives as possible, which is underlying the
ethic of free speech. So, on college campuses, it seems like a good
way to develop the mind is to get as many
perspectives as possible. Even if you don't really want to. - Well, that is the theory. Academic freedom is supposed to be the highest
degree of free speech. - [Lex] Yeah. - You should be able to entertain all kinds of hateful, threatening ideas. And the way I put it is, there's something wrong
when you can say something with complete abandon, without
any fear, in Harvard Square. Whereas on the other side of the fence, you can't say it in Harvard Yard. It should be the opposite. And what happens is, universities, from the best to the worst, from the most famous to
the least well known, have been taken over by administrators. Administrators do not really
subsume academic values. They know nothing about the constitution. They know nothing about free speech. They know nothing about academic freedom. They feel that their job is to keep order. And so they develop speech codes, kangaroo courts to
enforce the speech codes. And these are very dire developments. I wrote about them in "The
Shadow University" in '98, and tried to deal with them in 1999, when I started FIRE, co-started FIRE. I would fire... The reason I'm running currently for the Harvard Board of Overseers is what I'd like to do is convince
the Harvard Corporation, the so-called President
Fellows of Harvard College, the chief governing
board of the university with the real power. The Board of Overseers
is a secondary body, but quite influential. To fire 95% of the administrators. It would have a salutary effect on the academics of the university. It would have a salutary
effect on free speech and academic freedom. It would cut tuitions by about 40%. And it would create a
whole different atmosphere on the campus and the
same could be said of MIT, or any other place. I think administrators are a very bad influence on American
higher education. - Can you elaborate the
intuition of why this thing that you call "administrative bloat" is such a bad thing for a university? - Well, first of all. Just in terms of the cost of maintaining. There are more administrators
in American higher education than there are faculty members. The cost is enormous. Number two. They are inimical to the teaching enterprise and they feel that their
job is to control things, to make sure there are no problems, and nobody's feelings are hurt. Being called before a dean
because you said something that insulted somebody is
something that shouldn't happen in American higher
education, yet it happens, because you have these
administrators who think it's their job to protect
people from being insulted. You insult a black student,
you insult a woman, there's a disciplinary hearing. Well, there shouldn't be. Black people are accustomed
to being insulted. Jews are accustomed to being insulted. Women are accustomed to being insulted. And it's very good to
know who doesn't like you. It's useful. It's essential information
to know who doesn't like you. If everybody is forced to say "I love you" and nobody can say "I hate you", you get a false view of
what life is all about. - [Lex] Outside of the university. - Outside of the university. I mean, you do graduate, eventually. - And that's ultimately the
mission of the university is to prepare you, to make
you into a great human being, into a great leader, that can take on the
problems of the world. - Correct. And you don't do it by treating
you like a little flower. - But what role does the university have to protect students? To women, African Americans. Anybody. Jews. Anybody who could be a
victim of hate speech. - They protect you from physical assault. If somebody physically assaults
you, then they get punished. But they shouldn't protect
you against insult, because that is a violation
of academic freedom. The freedom of the
insulter, to insult you. And also, as I said, it's very useful to know
who doesn't like you. It's useful for the so-called victim. I think, as I said, I wanna
know who doesn't like me. It's as important to me as
knowing who who likes me. - But do you also believe in
this open space of discourse that the insulter will eventually lose? - I think that's true. I think that the insulter, eventually, will wear out his or her welcome. I do, but I like to know
who the insulters are. - [Lex] 'Cause it gives
you a deeper understanding of human nature. - Yeah, and usually, by the way, my experience has been that
the insulters have generally not been as smart as the
people they've insulted. And that's probably one of
the reasons they insult them, because they feel inferior. I mean, I'm not trying to
be a psychoanalyst here, but a lot of the people
who are the haters are pretty low down on the intellectual scale. - Anyway. 95% of administration, you would fire. You're calling to fire
95% of the administration. - Correct.
- People should know. I think people that don't really
think about the structure, the way the universities work,
are not familiar, I think, with the fact that administration, there's a huge bloat of administration. When you think about what
makes a great university, it's about the students,
it's about the faculty, it's about the people that do research, if it's a research university. They don't think about the
bureaucracy of meetings and committees and rules
and paperwork and all that, and all the people that are involved with pushing that kind of paper, and there's a huge cost to that, but it also slows down and suppresses the beautiful variety that
makes a university great, which is the teaching, the
student life, the protests, the clubs, all the fun that
you can have in a university. All the varied exploration, which you can't really
do once you graduate. - Correct.
- It's the place. The university is a
place to really explore. - Mm-hm.
- In every single way. So, let me just talk about
this important thing, because I'm very fortunate
to have contacted you, almost by accident, in a very
important moment in your life. You're running for the
Harvard Board of Overseers. What is this board? How
much power does it have? And what would you do, if elected? - Okay, first of all, I have a prediction that in about five years, they're gonna probably change the name, because "Overseers" reminds
people of the slavery era and we're in such a
politically-correct era now that the English language
is being restricted. "Corrupted" is the way I put it. Because certain words are forbidden. We have some problems in this country, and I think a part of the
problem is the educational system has lost the sense of
what academic freedom and free speech are all about. And I think it's essential that
the educational system begin to take more seriously what free speech and academic freedom really are! That's why I'm running for the
Harvard Board of Overseers. - So, let me just linger on the role of the administration
in protecting free speech. So what often happens and I
think you've written about this, is there's going to be
maybe a small number of hypersensitive students
and faculty that protest. So, how does Harvard administration resist the influence of those
hypersensitive protestors in protecting speech, in
protecting even hate speech? - Harvard has done fairly well, under the presidency of Lawrence Bacow. I have had a couple of
meetings with Bacow. I like Bacow. I have donated to Harvard a print of, my late wife took a picture of
Bob Dylan and Allen Ginsburg when "The Rolling Thunder
Review" got to Harvard Square, and it's sort of an iconic photograph. She called it "The Music
Lesson", 'cause it's got Dylan teaching Ginsburg how to play the guitar. And I donated one of those to Harvard. It's hanging in Bacow's office. The new president, Claudine Gay, is not known for
respecting academic freedom and free speech. People have said to me,
"Well, give her a chance." Well, I'm willing to give her a chance, but she does have a record,
and she's a bureaucrat. I don't think she believes in free speech and academic freedom. I think she's a
progressive, not a liberal. I'm not happy with the appointment of Claudine Gay, and it has made more essential my attempt to get on
the Board of Overseers. - So, let's talk about
the Board of Overseers, and your run for it. The specifics, actually.
- Okay. - It'll be nice because I think
you're a write-in candidate and the election is over on May 16th? - [Harvey] Yes. - And I think there are specifics. I'll probably give them in the intro. I'll give links to people but
the specifics are complicated. Let me just mention that you
have to be Harvard alumni. So have graduated from Harvard. - [Harvey] You have to in order
to run and in order to vote. - In order to vote. And the process, I imagine
is not trivial, but, this is done online and
if you're an alumni, you should have received an email from a particular email address, harvard@mgelectionservicescourt.com. And presumably there's a way
to get some validation number from that email and then you go online, you enter that validation
number and you vote and to vote for Harvey,
you have to enter his name, correctly, Harvey Silverglate,
and spell it correctly. Obviously I'm imagining this,
because I'm MIT, not Harvard, so I'm imagining the
process is not trivial, 'cause you have to click
on things, you have to follow instructions that are not trivial. And I'll also provide an email
if the process is painful, it doesn't work for you, that you can email Harvard and complain. IThelp@Harvard.edu and so on. I'll provide all the links. But is there something else you can say about the voting process,
what you're running on? - This is my second run. The first time, I got enough signatures to get on the ballot. Then the Harvard Alumni Association sent out a letter to all living Harvard alums, recommending that they vote for the officially-nominated candidates. That excluded two petition
candidates, of whom I was one. And I wrote to the Alumni
Association and I said, "You have now sent out
the curriculum vitaes, and the policy positions of all the officially-nominated
candidates. There are two petition
candidates on the ballot. I would like to be able to send out my positions to the voters. They wrote me back saying, "Our policy is to only send
out the policy positions and the platforms of
officially-nominated candidates." Can you believe that? Well, this is a liberal
arts college, right? Where, from the clash
of ideas, truth emerges. Well, really? This is what I call
Harvard's not-so-subtle means of candidate suppression,
not voter suppression. Candidate suppression. And everybody can vote,
but not everybody can run. Ill becomes a liberal arts college where the clash of ideas
will produce the truth. Well, what about the clash of ideas of the Board of Overseers? The Board of Overseers is important. It doesn't have the
same power or authority as the Harvard Corporation, the so-called President and
Fellows of Harvard College. But it's very influential
and very important and it would be a great perch for me to try to exert influence for
the university to get back to where it was before it was taken over by the administrators. - Well, I'm pretty sure
that most of Harvard alumni, most of the students
currently going to Harvard, most of the faculty at Harvard, probably stand behind the ideas and the ideals that you stand behind. - [Harvey] Yep. - The people that love Harvard
and what it stands for. - The alumni were educated in an era when these concepts were
taken more seriously and before the administrators took over. So, I do think if I get my message out, I'm gonna win a seat. And if I win a seat, I
will have a great perch for trying to convince
the real power that be, which is the Harvard Corporation, to do the things that I'm suggesting. Get rid of 95% of the administrators, get rid of their speech
codes, reduce tuition by 40%. All of these salutary benefits. Can you imagine if Harvard became the most affordable college
in the United States? - Well, the affordability
is another aspect, but I think before that, just
the freedom of expression, freedom of speech, freedom of thought at America's greatest
universities, I think, is something that
everybody would agree on. - [Harvey] It would
have a tremendous effect on the whole country. - And is there something
to say about the details of how difficult it is for alumni to vote? Do you have experience with this? - You could vote online or
you can vote by paper ballot. You could request a paper ballot. And all I could say is that the hard part is getting the message out. My name doesn't appear on the ballot, 'cause I couldn't get enough signatures. - Well, Harvey, Harvey Silverglate. - S-I-L-V-E-R-G-L-A-T-E. When my grandparents arrived from Russia, the name in Russia was
something like Zilbaglit, and the immigration officer
had several choices. He could have said
Silvergate. Gate is a real... Silver and gate are real English words. He could have said Silverglade. G-L-A-D-E. Those are real English words. That's how my name is often misspelled. Either Silvergate or Silverglade. Silverglate is a nonsense syllable. And why the immigration officer chose to transliterate Zilbaglit as Silverglate, I'll never understand, and it is the cause of
endless mistakes in my name. - [Lex] Well, the the
fundamental absurdity of life is also the source of its beauty. - Yes. - Anyway. We shall spell it out and we shall yell loud and wide that everybody who has
ever graduated from Harvard should vote for you, if
they believe in the ideals of the great American universities, which I think most people do. Let me also ask about diversity, inclusion and equity programs. You've had a few harsh
words to say about those. The idea of diversity, I
think, is a beautiful ideal. You've said that Harvard's
idea of diversity is for everyone to look
different and think alike. - Correct.
- Can you elaborate? - And be comfortable. - And be comfortable.
- Yeah. First of all, it is impossible, if liberal arts education
is taken seriously, it's impossible for students
to feel comfortable. Why? Because one of the roles
of college is to challenge all the beliefs that they grew up with, which mostly are the beliefs inculcated by parents and by
elementary school teachers. And the idea is to be able to challenge those thoughts, those ideas. And if you don't have free
speech and academic freedom, those views get reified,
they do not get challenged. It violates the fundamental
role of higher education institutions to have
any restrictions at all. That's number one. Number two, as I think I said earlier, if students are not allowed
to be frank with one another, they don't really learn about one another. I've given a lot of lectures
in which I have said, and I think students now understand it, I'm much more interested in hearing from the people who hate me
than the people who love me. I'm much more interested in
knowing who disagrees with me than people who agree with me. That's how I learn, and that's how they learn. The clash of ideas, which is the theory behind
the First Amendment. That truth will somehow
emerge, or if not truth, at least a better truth, a truer truth, a more useful truth, if
ideas are allowed to clash. - Especially in the structure
of a university where at least I would say
there's some set of rules, some set of civility. I think I would rather read "Mein Kampf" to understand people that hate. There is also a quality to disagreement that we should strive for. And I think a university is a
place where when disagreement and even hate is allowed, it's
done in a high effort way. - Somebody asked me once about what books would have as required
reading in literature courses, and I listed "Mein Kampf",
and they were horrified. And I said, "Well, it's one
of the most important books of the 20th century." I mean, six million Jews died, enormous number of other people died, because one guy wrote a
book called "Mein Kampf", and took it seriously. It's one of the most
important books ever written. How can an educated person not have at least breezed
through "Mein Kampf"? - It's not a great read, though. - It's not a great read.
He was not a great writer. But you do get a sense for the sociopath that was Adolf Hitler. - Yes, because he really acted
on the words that he wrote. - [Harvey] Yeah. - And it was there, and if
people took that work seriously, they would've understood. - It's one of the most important
books of the 20th century, and it's politically incorrect to read it. It's crazy. - But can you speak to the efforts to increase
diversity in universities, which I think is embodied in
this D-I-E effort of diversity, inclusion and equity programs. Where do they go right?
Where do they go wrong? - Okay, let me tell you, first of all. This may surprise a lot of people. I am opposed to affirmative action. And I think that what it does is it labels people by their race, by their religion, and by their national origin. Precisely what we don't want people to do is be pigeonholed in those categories. The reason that affirmative
action has become the way that universities
decide on who gets admitted is because, historically, people in what's called
"marginalized groups", Blacks, gays, Hispanics, have been discriminated against,
in the admissions process. Now, what I have suggested is that instead of affirmative
action, and by the way, here's a prediction. The Supreme Court is going to
abolish affirmative action. There's a case pending, this Harvard case. There are two cases joined together. One of a public university and
one of a private university. The private university is Harvard. I predict that the Supreme
Court will vote six to three to abolish affirmative action. On its face, it is a violation of equal protection of the law. Some groups are favored
because of race or ethnicity. It is a classic violation
of equal protection clause. When affirmative action was approved, the deciding vote was
Justice Sandra Day O'Connor. She wrote a very famous
opinion in which she said, "I am hesitate to vote
to affirm the notion of affirmative action
because it's such an obvious violation of equal protection. But we have an urgent
problem in the society. We are not educating our members of racial and ethnic minorities, and we have to try to get
them into our colleges. So, I think it should be
approved for 25 years. In 25 years, it should
have performed its role." Well, it hasn't. And the 25 years is coming up. I think it's three or four years left. The Supreme Court is going to abolish it. You can take my word for that. 'Cause it is such an obvious
violation of equal protection. Why did affirmative action come into play? Because the secondary in
elementary schools were so bad. Public, secondary and
elementary schools were so bad. Why are they so bad? Partly because of the control
that the teachers union has. Randi Weingarten runs
the public school system in the United States. And what I have suggested is that the effort should be to... This is a national emergency, to improve the quality of elementary
and secondary education. And one way to do it is to hire teachers who are fabulous teachers, rather than necessarily
members of the union. I have come to oppose public workers unions. I am a very strong supporter of unions in the private sector. Why do I think there's such
a difference between unions in the public sector
and the private sector? In the private sector,
management is arguing, bargaining with its own money, and with the money of shareholders. In the public sector,
there's only one side. There is the teachers union, and then there's a school
committee that is dealing with the taxpayers' money, not their own. And so it's a very skewed power balance. So, as supportive as I am
of private sector unions, I am in opposition of
public sector unions. They're very destructive. And I think without teachers union, teachers who are really skilled
will be able to get jobs. They would not have to worry
about the seniority of teachers who long since have given
up really creative teaching. And we have to improve the
public educational system. My late wife and I had a classmate of, we
have a son who's now 44, who went to the public
schools in Cambridge. He has a friend, first name Eugene, who was a Black kid from
Roxbury, whose mother understood that the schools in Roxbury were terrible, the schools in Cambridge were pretty good. He lived in our house, Monday to Friday, and he
went to school with Isaac in the Cambridge public schools. Elsa and I would show up to
school committee meetings when there was bargaining
between the teachers union and the school committee. The teachers union objected
to our being there. We argued, we're taxpayers.
We have a kid in the school. His best friend lives with us
and goes to school with him. We have a real interest. The school committee walked
out of the bargaining session. The city council then
reconsidered its vote and they voted that citizens, taxpayers, parents of kids in the school, could not show up to these
negotiation sessions. I thought that was absolutely outrageous. But I understood why, because
these contracts are crazy. No sane municipality should enter into some of these contracts. And so, I have become an opponent of the National Teachers Association, the Cambridge Teachers Association. I don't think there should be
unions for public employees because there's no real
bargaining going on, and I think that the public school system will never be improved, as long as the teachers are unionized. - So that, to you, is at
the core of the problem that results in the kind of
inequality of opportunity that affirmative action
is designed to solve. - If the educational
system in the elementary and high school levels is improved, we wouldn't need affirmative action. These kids would get good educations. - So, from all backgrounds, poor kids in the United States
would get good education, if public unions are abolished. - [Harvey] Correct. - But do you- - [Harvey] And incidentally,
the postal service would probably work better, too. (Lex chuckles) - That's a whole other conversation. But do you, at the core of
the problem of the inequality in universities, that diversity, inclusion
and equity programs they're trying to solve is
the public education system. - Correct.
- Secondary education. - [Harvey] Yes, correct.
Elementary and secondary. - Elementary and secondary education. - Well, then is there
use? What is the benefit? What is the drawback of D-I-E, diversity inclusion and equity programs, at universities like Harvard? - It's an affirmative action, basically. And what it does is it allows
the system of elementary and secondary education to be bad, because they could say, "Oh,
we got our kids into Harvard." Yes, but you haven't educated them. And it covers up the wound. And I think we will never improve, as long as we're able
to cover up the wound. And as I said, affirmative
action is gonna be abolished by the Supreme Court. It's a clear violation
of equal protection. It's what Sandra Day O'Connor
understood, but ignored, intentionally, but as an experiment. And I believe it's gonna be abolished. That that's gonna force the elementary and high
schools to get serious. - Do you see the same issues
that you discuss now at Harvard at MIT? We're here in Boston,
so I have to talk about the great universities here in Boston. You've written about MIT. It's the university I love.
I'm a research scientist there. Do you see the same kind of issues there? - Yes, I do. - Do you remember or
can you explain the case of Dorian Abbot lecture
that was canceled at MIT? - Yeah, well, this is not the only... It's not the only incident. There have been incidents
all around the country of academics, professors who have used, that don't comport with the,
as the great Lillian Hellman, another friend of my late wife, said, she said she refused to cut her garments, in order to fit the fashions of the day. Dorian Abbot didn't cut his suit to fit the fashions of the
day, his intellectual suit. And so this has happened at Princeton, this has happened at Harvard,
this has happened at MIT. The great universities in
the country have decided that the clash of ideas
is not such a good idea, because some people's
feelings will be hurt. Well, there was quite a revolt against it. FIRE sounded the alarm. And then, in the end,
the universities were, I believe Abbot was invited to come back. I think he turned them down. He shouldn't have turned
them down, but he did. And when the light is cast
upon these situations, the universities back down,
'cause they're so embarrassed. - [Lex] Yeah. - And the newspapers,
because newspapers depend on the First Amendment in order to exist, newspapers tend to give
pretty good publicity to these cases of censorship. - [Lex] So they grill the universities. - Yes. - [Lex] So they really emphasized, they catalyzed the embarrassment. - Yes. - [Lex] So is that one of the ways, is that the best way to fight all of this? - Yes. Sunshine is the best disinfectant. - You've written about MIT's
connection to Jeffrey Epstein. He was well connected
at MIT and at Harvard. What lessons do you
draw about human nature, about universities, about
all of this from this saga? - Let me say this. I believe that universities, if somebody was to, for
example, donate to a university and donates on the requirement that the building be named after them. If the university is taking donations and the person is funding a building, and wants the building named after them, the building should be named
after him, her or them. Harvard is facing this now
with the Sackler building because the Sacklers have become, now, a persona non grata because of their role in producing the opioids that caused huge, scandalous opioid addiction. There are people who want
to remove the name Sackler from the Sackler Art Museum at Harvard. Larry Bacow, the President
of Harvard, to his credit, has refused to do that. And if it reminds people
that the money was earned through selling opioids, that's good. That's good that people understand that that's where the
Sacklers got their money. They should be re reminded. In my undergraduate alma mater, Princeton, there's a movement to remove
the name Woodrow Wilson, because Wilson was president at Princeton, before he became governor of New Jersey, before he became President
of the United States. How he got to be Governor
of New Jersey was, he was so insufferable that
the trustees of Princeton got him the nomination to run
for Governor of New Jersey. They had said, "We gotta
get this guy outta here." And not 'cause he was
anti-Black and anti-Semitic, 'cause the trustees were, as well, but because he just was insufferable, he drove the faculty crazy
and they got him out. And so Princeton was thinking
of changing the name. I wrote a letter to President
Eisgruber at Princeton saying, "This is part of the university's history. You don't wanna... You wanna rewrite history falsely? Woodrow Wilson was the
president of this institution. He was one of your predecessors." He never answered me, either. I think these people, they
know they have no answer. The reason I didn't get a
response from President Eisgruber is the same as the reason
I didn't get a response from the headmaster of Milton Academy. They understand that what
they're doing is violative of the fundamental precepts
of academic institutions. They're ashamed, yet they feel
they have no choice because they feel that they would
be criticized for racism, homophobia, blah, blah,
blah, blah, blah, blah, blah. - [Lex] Criticized by how many people? - Well, they feel that they
would be criticized by students and parents and donors. I disagree with that. I actually think there
are more people out there that agree with me than agree with them. - Yeah, by a large margin. - By a large margin, in
what I call the real world, which is the world outside the campus. But academics are afraid
they'd be criticized. They're incredibly thin skinned. When I say academics, I mean
academic administrators. They're very thin skinned,
politically correct. Holier than thou. As I said, I would fire 95% of them, and I would be more
careful in who I elected to lead these institutions. So, I said Claudine Gay is probably gonna be a disaster at Harvard. - So it takes guts, it takes courage, to be in the administration when the task of protecting
the freedom of speech is there. And also, which in part requires you to admit and to uphold the mistakes you have done in the past. - Correct!
- Not to hide them. - [Harvey] Correct. - And that, to you, I mean,
Jeffrey Epstein for Harvard, and for MIT is a very recent mistake. - Well, there's a debate
whether it's a mistake. They took money from him. - Yes.
- Okay. Is it a mistake to take
money from bad people? Do you have to do a morals
test of a potential donor? I don't think so. - It's complicated because- - If there are no
conditions attached to it, I think it's emotionally complicated. I don't think that it is
rationally complicated. It's emotionally complicated. It's particularly complicated
if they want naming rights. "The Jeffrey Epstein
Biological Laboratory". That would be a problem
for most universities. I don't think that naming
rights have to be given to somebody that you don't think is worthy of having their name. I think the university
has the right to say, "No, we'll take your
money, but we will not name the building after you." I think they have a right to do that. - There's some degree in which you whitewash the name, though. Not with naming rights, but... - [Harvey] If you take the money? - If you take the money,
it allows the person, in public discourse to say
that they're collaborating, they're working together
with Harvard and with MIT. - Well, I have a problem with universities making morals tests of donors, because not every donor
is as bad as Epstein, but some of the donors made
their money in industry, by being rapacious, by paying low wages, by exploiting people. - You can make the case that accepting money from the
Department of Defense, from DARPA, from the United States
organizations that contributed to waging war and killing
hundreds of thousands of civilians over the past few decades. - [Harvey] Correct. - Folks like the tenured
professor Noam Chomsky will make the case that is far more evil than accepting money from Jeffrey Epstein. - [Harvey] Yes. - Still, Jeffrey Epstein
is a known pedophile. - Yes. So, that's why I say I would
not give him naming rights. I think the university has the autonomy to not give naming rights, but I think that giving
morals tests to donors is a Pandora's box. - What do you think about the aftermath of the Jeffrey Epstein saga? It feels like... I'm not familiar with Harvard's response, but MIT's response seemed to fire a few scapegoats and it didn't seem like a genuine response to the evils that human
beings are capable of. Sort of like rising to the surface, the description in a fully transparent way of all the interactions that
happened with Jeffrey Epstein and what that means. Yeah, what that means
about the role of money in universities, what
that means about just human beings in power. - Money is essential to run a university. One of the reasons it's essential
is because the university is artificially, artificially requires
huge amounts of money, and that's partly because
of the administrative army that they support and they would be less dependent
on the Jeffrey Epsteins of the world if they didn't have... So, it's sort of all
part of the same circle. - But there's a tension here. You're saying we shouldn't be putting a morals test on money,
but actually if you make, if you expand the amount of money needed to run the university, you're going to make less and less, more and more unethical
decisions in terms of accepting- - And as I said, I am
flexible enough to say that I don't think I would
name a building after somebody who was truly evil. I think university has the right to limit the naming rights for a donor. If I was an absolutist, I
would not even say that, but I'm not an absolutist. I have my limits. And that's one of them. "The Jeffrey Epstein
Biological Laboratory". It's a little bit much. - It feels like there
should be moral requirements on who to accept money from,
but the concern you have was about who gets to decide
and what's the alternative? - Correct. I think
there is no alternative. I think that turning down a donation because you don't approve
of the conduct of the donor is a Pandora's box. (Lex breathes deeply) - But I'm just sickened by the
fact that an evil human being was allowed to walk in the
halls of a university I love. So, what do we do with that? - Well, are you telling me that none of the students are evil? Are you telling me none of
the faculty members are evil? Are you telling me some none
of the administrators are evil? - But that doesn't... Sure, sure. So, scapegoating saying
that Jeffrey Epstein is evil can help us forget, can
aid us in forgetting that there is other evil
in the world and some of it might be roaming, still, the
halls of MIT and Harvard. - Hey, listen, I won't tell you the name, but I represented somebody
in the MIT administration a few years ago who is charged
with sexual improprieties against students. And as a lawyer, I
represented that person. People said, "How could you represent..." Some of the people I
represent are bad people. Say, "How can you represent?" I said, "Well, if I was a cardiologist and this person had a
heart attack on the street and I didn't deliver CPR, I would have my license taken away." I'm a lawyer. The only difference between my obligation and the doctor's obligation
is the constitution gives people the right
to assistance of counsel. The Constitution says nothing about the assistance of cardiologists. I have a very high duty to
represent unpopular people. Well, I think I apply the same
test to the college donors. The university should
not have a morals test to whose money to take. I do draw a line about
naming rights of buildings. And as I say, that's an
inconsistency with my absolutism. But I just, emotionally, I
just can't deal with having, as I said, "The Jeffrey
Epstein Biological Laboratory". - Well, for me emotionally,
there's nothing that sickens me more in the university
than the abuse of power. - [Harvey] Right and there's
an awful lot of people who abuse power at the university. - And especially when it comes
to abuse power over students. So, sexual harassment. So, in the realm of sexual abuse of power, and all kinds of other. - Well, it is a crime to
use one's power position, in order to take sexual
advantage of a student. It's a crime.
- Yeah. - This is not a closed question. - Yeah, but there's a legal crime, and there's a deeply ethical crime, and there's an emotional
response that I have. You are a good lawyer and perhaps a
good man to want to defend some folks who are evil in this world. I don't think I have
that emotional fortitude. - [Harvey] Well, then you shouldn't be a criminal defense lawyer,
or a cardiologist. (laughs) - I think you're right. (both laugh) I'm still deeply sickened
by Jeffrey Epstein and the faculty, the administration that still might be in these
great American universities that are abusing their power,
in small ways and big ways. But that's human nature. You get a little bit of power, and you're a bad man or a bad woman, and you take advantage of it. - [Harvey] Yep. - We see that in the smallest of ways, and in the biggest of ways. In institutions and regimes,
all across the world. (sighs) Boy. Harvey, it's a complicated situation. - Well, it's a complicated world, and it's complicated to be a human being, and this is nothing new. - And we should talk about
it, without restriction. All right. Just to linger on liberal arts. In 2014, and probably still today, you wrote that liberals are
killing the liberal arts. - Yes.
- So can you explain? - Yes. I'm a political liberal. The problem with the political left is that it has divided between what's called
"progressives" and "liberals". Liberals are people of
the left who believe in the First Amendment, an
absolute First Amendment, and in due process of law. The problem with progressives now in the pursuit of equality, what they view as equality, they're willing to bend those rules. And this movement actually
started in Brandeis. It's the critical race theory. Herbert Marcuse was a
professor at Brandeis and he came up with this theory. The theory was this. This
is right out of Orwell. In order to create true equality in a society where you
have some downtrodden and some who are the ubermenschen, in order to create real equality, you have to reduce the
rights of the upper classes, and artificially increase the
rights of the lower classes. That will produce, out of unequal treatment, true equality will be attained. This is nonsense. The idea of discrimination producing true equality is nonsense. My view is, as I've said
earlier in our discussion, that the way to increase the opportunities for the lower classes is to give them real educations. And until we do that,
it's not gonna happen. And in order to do that,
we have to overcome the problem of the teachers
unions at the elementary and secondary school levels. Until we're willing to do that honestly, and improve those schools, we're gonna have a problem
of large number of uneducated people who need a boost because we haven't given
them proper educations. - What do you think about
some of the more controversial faculty in the world? So, an example of somebody
I've spoken with many times, on mic and offline, is Jordan Peterson. I'm not sure if you're
familiar with his work. But he is an outspoken critic of, or proponent of free speech on campus, and he's been attacked quite a bit. He's a controversial figure. What's the role of the
university to protect the Jordan Petersons of the world? - I think the university
has an absolute, absolute, not relative, that absolute obligation to protect the academic freedom of even the most
controversial faculty members. And you can imagine,
on a university campus, you have more people who are outliers than you do in the general population. - [Lex] That's the hope, at least. - Hopefully. Yeah. And those outliers have to be protected. They can't be pressured,
they can't be fired, they can't be disabled
from spewing their views, whether they're considered racist, whether they're considered
to promote an idea of human society that's
considered obnoxious. It doesn't matter. If you can't have freedom of thought on the college campuses, where can you? Then we're lost. As a society, we're lost. And as an educational institution, educational institutions
no longer will educate. They will indoctrinate. That, we have to avoid at all costs. - And we should also
remember that the outlier might also be the only bearer of truth. So, in Nazi Germany, speaking
against the fascist regime. In communist Soviet Union,
speaking against communism. They might hold the key to the solving the ailments of that society. - Absolutely. And some of the most important
discoveries in science, for example, were mocked at the beginning. I mean, think of poor Charlie Darwin. - "Charlie". (chuckles) I see he is on nickname levels with you. Well, 'cause we're talking
about these big topics of sexism or racism and hate. We should not forget
about the smaller topics, which might even have
the much bigger impact, which is what you're speaking to, which is outlier ideas in science. So, basically welcoming
controversial ideas in science. And by "controversial", I mean just stuff that most of the community
doesn't agree on. It doesn't actually harm anyone at all. But even then, there's always pressure. One of the things I'm
really concerned about is how little power young faculty have. That there's a kind of
hierarchy, seniority, that universities have,
empowered by the administration, where young faculty that
come in, they're kind of, um- - [Harvey] Pre-tenured. - Yeah, there's a
process in chasing tenure where you're kind of supposed to behave, and there's an incentive
to kind of fit in, and to not be an outcast, and that's a really huge
problem because, oftentimes, the youth is when the
craziest, the biggest ideas, the revolutionary ideas come
and if you're forced to behave and fit in and not speak out, then even in the realm of science, the innovation is stifled. - Well, now you trigger my,
happy to tell you this story. - [Lex] You're triggered. This is good. - In the mid 1980s, I
decided to take a four-month sabbatical from my law practice. - [Lex] Yes. - Professor James Vorenberg, who was at the time Dean
of the Harvard Law School, heard about it, heard
about it from his wife, Elizabeth Betty Vorenberg,
whom I was very friendly with, because we were both on the
ACLU of Massachusetts board, at the time. And so Betty told Jim that
Harvey was taking a sabbatical. Jim called Harvey and asked
Harvey if he would like to teach a course at the Harvard Law
School because there was nobody who had teaching criminal
law from the perspective of somebody who actually
was in court and litigated. It was all theoretical. I said, "Sure, I'll do it." So, I taught a semester
at Harvard Law School. The student evaluations
were fabulous. Why? Because it was really interesting. They were hearing a lawyer
who's talking about real cases. I actually brought in a few of my clients to some of the classes. And so Jim called me in and said, "Harvey, the students love this course. I'd like to offer you a tenure track position at the law school. You'd have to give up your law practice." I turned him down. He said, "Did you just say 'No'?" I said, "Yes, I said, 'No.'" He said, "How come?" He says, "Nobody in my administration has ever turned down a tenure track offer at Harvard Law School." I said, "Because I could
see that I'm not a good fit. That the administrators
are overrun the place. That faculty members,
especially untenured, are afraid to say things that might not help them
in the tenure quest. It's not a good fit for me." - [Lex] You saw this in
the mid 1980s, already? - Yes, about 1985. And I went back to my law practice. I did not want to get
into this meat grinder that I saw. Actually, I started to see it, before the turn of the century, because I co-authored "The
Shadow University" in '98, and then co-founded FIRE in '99. I'm an early student of this phenomenon. - What are some other
aspects of this, the book, "The Shadow University",
that we may have not covered? - Well, let me tell you a story. I believe I tell it in
"The Shadow University", 'cause it was part of- - [Lex] I'm loving these stories, Harvey. - The stories are fabulous. Let me tell you a story of... I did a tour of the
country, visiting campuses. I visited a college
called Hamline University. I believe it was in Indiana or Illinois. Somewhere in the Midwest. And I attended a freshman orientation. Now, listen to this. This was a freshman orientation. The administrators, the deans and the deanettes, and the deputy assistant
deans and deanettes, and the third-deputy
assistant deans and deanettes, lined the students up,
according to their skin hues. - [Lex] Oh, boy. - The blonde, blue-eyed
white folks were at one end. The darkest African Americans whose
bloodlines had not yet mixed with any of the
whites, on the other end. And the exercise was, you
had to tell how your race affected your success in
life, up until that point. I thought it was the most demeaning thing that one could imagine. Demeaning. I thought to myself, "They could do the same
about sexual orientation. They could do the same about religion. They could do the same
about national origin. It would be demeaning, no matter what." - [Lex] Yeah. - And the students actually verbalized how their race had either been a plus or a minus. - They did it?
- They did. And I thought it was so demeaning. It just confirmed all of my
distaste for this kind of, this kind of approach. - Let me ask you from
the interviewer seat. So, I get to do this podcast
and I often have to think about giving a large platform
and having a conversation with very controversial figures, and the level of controversy
has been slowly increasing. What's the role of this medium, to you? This medium of speech between two people, and me speaking with a
controversial figure. Me, or some other interviewer. What's the role of giving
platform to controversial figures? Say, members of the KKK, or dictators, people who are seen as evil? - Well, we want face
the world with reality. And the reality is that
there is some unpleasantness, unpleasantnesses in the world. Running from genocide, right through to ordinary
discrimination, to offensiveness. It's the real world, as we know it exists. Are we afraid to say it? Do we wanna make people
think that we live in a world where those words are not used? Where those animosities don't exist? The answer is no. - But you can whitewash, you can normalize the use of those words, and you can whitewash the
acceptability of certain leaders. So, for example, interviewing
Hitler in 1938, 1935, 1936, 1937, '38, those are all
different dynamics there, but you can normalize this
person, and in so doing, create enormous harm. - Well, see, I don't
see it as normalizing. I see it as exposing. If more people had taken
"Mein Kampf" seriously, Franklin Roosevelt
would've acted much sooner. He only got us into the war, asked Congress get us into the war, when the Japanese made the mistake of attacking Pearl Harbor. But there were some people
in the State Department, there were some people
in the administration who were trying to get Roosevelt to see what Hitler was really like, and he was blind to it! And this was one of
the greatest presidents the United States ever had. He was blind to it, until the Japanese attacked Pearl Harbor. So, I think that words, unpleasant ideas, as expressed by words are essential for communicating
fact and truth and reality. And that's why I think that we should not whitewash language. We should not whitewash the
fact that Jeffrey Epstein was pretty close to MIT. - And Harvard.
- And Harvard. And reality, reality
actually means something. - Yeah, but from the
role of the interviewer, that's something I have
to think a lot about. Whether interviewing Hitler,
you said "exposing"... I think it's hard to know
what Hitler's like in a room, but it's also hard to know,
I've never met Jeffrey Epstein, it's hard to know what Jeffrey
Epstein's like in a room, but I imagine, to some degree
they're charismatic figures. So exposing them in the interview setting is not an easy task. - Well, interviewing is not an easy- - All right.
- Job. - [Lex] Yeah. - [Harvey] It's not a good idea to have an interviewer be an idiot. (Lex laughs) - I know exactly what you're saying, and I know why you're looking
at me directly as you say it. I appreciate that, Harvey.
All right. (chuckles) Let me ask about your
friend, your colleague, Alan Dershowitz. And I'll also ask about your
review of his most recent book. But before then, it'd be interesting to ask what you think of him
as a human being, as a lawyer. He's quite an interesting case. He's represented some of the most controversial figures in history. - Including Jeffrey Epstein.
- Including Jeffrey Epstein. Mike Tyson, Julian Assange, Jim Baker, and Jeffrey Epstein,
and even Donald Trump. So, he's an interesting figure. What do you think about that? - Claus von Bulow. - What do you think? What do you think about him
as a human being, as a lawyer? What he represents, in
terms of values and ideals? - Well, he is a criminal defense lawyer, and the job of a criminal defense lawyer is to represent accused criminals. He is a lifelong Democrat. He didn't represent Trump because he agrees with him politically. - Voted for Hillary, I believe you wrote. - He voted for Hillary.
Yes, that's what he says. And I absolutely believe
it. He's a liberal Democrat. But he's a criminal defense
lawyer, as well as a professor. And I've represented some very
nasty people, in my career. I wouldn't go out for coffee with them, but they have constitutional
rights to representation. - [Lex] And you take that very seriously. - Yes, you notice something that people don't understand about Dershowitz. He was asked by Trump to represent him in the second impeachment, as well. He turned him down. Why do
you think he turned him down? - So, people should know
he represented Trump in the first impeachment. - He represented him, only in the first, and he was successful, and when Trump was
impeached the second time, he asked Alan to represent him. Alan has had a lifelong policy of only representing somebody once. Never twice. Why? Because he never wanted to be
house counsel to the mafia. So, he early on had this position. He only represents somebody once. The mafia wants a lawyer
who's an in-house counsel who represents them in all their cases. So, that's the reason and
Alan never publicly explained that I know it's a fact,
'cause I've known him from the day that we met at
Harvard Law School in 1964. He was a first-year professor. I was a first-year student. We both had Brooklyn
accents and we hit it off. We've been close friends, ever since. - So there's some kind of
unethical line that's crossed when you continuously represent a client. - Yeah. He thought it was
not so much an ethical line. You have a right to
represent mafia people, but he didn't want to be house counsel. He didn't want to have
them ask him for advice, in advance of what they were doing. He was willing to represent somebody once, no matter how awful. Claus von Bulow was accused
of killing his wife. These are pretty nasty people. But he didn't want to be
house counsel to any of them. - So, you wrote a review of
Alan Dershowitz's new book on Donald Trump. The title of that book is, "Get Trump: the Threat to Civil Liberties, Due Process and Our
Constitutional Rule of Law". Can you summarize this
book and your review of it? - Yes. By the way, I co-authored it
with my research assistant, who's sitting right here. - Emily?
- Yes. I thought that the book was
another example of the fact that everybody's entitled
to a defense and that Alan's being involved with Trump
was purely professional. It was not political. It
was not philosophical. And I thought that the fact
that he was being criticized, he was being shunned, because
of his connection to Trump, I found very interesting
that this is a guy who represented such, I'll call them distasteful figures, as Claus von Bulow, as Mike Tyson, as OJ Simpson, as Sheldon Siegel. And when he was considered
to be a skillful lawyer, made his reputation. And then he represents Donald
Trump, who to my knowledge, never killed anybody, and he's suddenly shunned. I thought the hypocrisy of
it, the political preening, was very distasteful to me. And it was not only
'cause he was my friend. If he wasn't my friend, I
think I'd have the same view. The "holier than thou" nonsense. The hypocrisy of it. They wouldn't talk to him
on Martha's Vineyard now. Alan and I are different.
I'm not so sensitive. Someone doesn't wanna
talk to me? No problem. No problem at all. But Alan, considering how
controversial his life has been, - He's somewhat sensitive.
- He's somewhat sensitive. And I've kept just telling Alan, "Alan, don't let it get to you." - Hey. I can relate, I
can definitely relate. Taking on some
controversial conversations. Still wear my heart on
my sleeve. It hurts. All of it hurts.
- Yep. - But maybe the pain makes you a better student of human nature. Maybe that's the case for him. Nevertheless, the book makes a complicated and I think an interesting point. He opens the book with, "Now that Donald Trump has
announced his candidacy for reelection as president,
the unremitting efforts by his political opponents
to, quote, get him, to stop him from running, at
any cost, will only increase. These efforts may pose the
most significant threat to civil liberty since McCarthyism." So, is he right?
- He's absolutely right. Because these attempted... For example, the prosecution, the one prosecution that has
been brought now, Alvin Bragg, in the Manhattan. I have looked at that, and I don't believe that
Trump has committed a crime, and yet Bragg was pressured to bring that. People in his office
were threatening to quit, if he didn't indict. Wholly improper, wholly unethical, and he's gonna lose the case. Has Trump committed crimes? Yes. Mostly, they're tax crimes. He has cheated on taxes, his whole career, as far as I could tell. He could easily be indicted
for state and federal taxes, but they're not as sexy. And I think that he's become a target by ambitious politicians,
ambitious prosecutors. He has gotten some sympathy,
which he doesn't deserve. and a lot of it is, pardon the phrase, political correctness. The better people are not
supposed to be Trumpers. I had an interesting
experience about Trump. I had two interesting experiences. The more recent one was
I was in the house of Lawrence Summers, the
former president of Harvard, who was driven out by political
correctness, by the way. He insulted women biologists. I was in his house when he was
still President of Harvard, when the Trump/Hillary
Clinton contest took place. And I was with Elsa. We were invited to Summers' house, in Brookline, and it looked like Hillary was gonna win, and the Harvard faculty members,
they were all celebrating, they were all figuring out
what their cabinet positions were gonna be, blah,
blah, blah, blah, blah. And then, at about 11:30 at night, all of a sudden, it was announced that, in terms of electoral votes, Trump had just eked out of a victory. That Hillary beat him in the popular vote, but he had won the electoral college, and there was an immediate depression. - [Lex] Meaning like quiet over the room? - The room became absolutely stone-silent. And they were all, you know, disappointed. Well, that was a memorable moment. And it told me that they were a little bit too overconfident. They were savoring being part of a
presidential administration. Ambition had been thwarted. I'm not a great fan of preening ambition. I think it blinds people to realities. - [Lex] And the resulting
arrogance from such ambition. - And the arrogance, yes. It's one of the reasons I
didn't accept Jim Vorenberg's offer to be part of
the academic community. I mean, I represent professors, I had friends who were professors. I represent students, I have
friends who are students, and I have a great
regard for universities, and higher education. But I was not about to
become part of the culture. I thought that it was not good for me, and not good for the institution, either. - A culture that can breed arrogance. - Yes.
- Self importance. - [Harvey] Yep. - And I, in a sense, the election of Donald Trump
was a big F.U. to such- - Correct. Which is why I think he, why I think he managed to pull it off. - To jump topics a little bit, what do you think about
something you've written about, what do you think about the
mass surveillance programs by the NSA and also probably
by other organizations, CIA, FBI, and others? And broadly, what do you think about the importance of privacy
for the American citizen? - Okay. I believe that the FBI should be abolished. 'Cause I believe that its
culture was so corrupted by its first director, John Edgar Hoover, J. Edgar Hoover, that it is impossible to reform the FBI to make its agents honest, to force them to obey the constitution. The First, Fourth and Fifth
amendments, especially. And it's a culture that cannot be changed. Hoover established the culture
and no FBI director since has been able to change it. If you go online, I did, on YouTube, a video, for the ACLU of Massachusetts. It was when I was on the board. It was probably when I was
president of the board. I was president of the
board for two years. I was on the board for 20 years. And I did a video about advising
people to never, ever, ever talk to an FBI agent, when they come knocking on your door. - Can you briefly explain the intuition why not to talk to an FBI agent? - They have a system. When they come in and interview you, two agents show up, never one. One asks the question.
The other one takes notes. The note-taking agent
takes notes and it goes back to the office and types
up a report called a Form 302, which is the official record
of what was asked and answered. So, when I have a client
interviewed by the FBI, I show up, and I always agree, almost
always agree to the interview. But I bring a tape recorder. And I say, "All right,
I'm gonna tape this." And they say, "Well, by regulation, we're not allowed to do the
interview if it's taped. The record is the 302,
the agent's taking notes." I say, "Well, I have a policy, too. My policy is to never allow
a client to be interviewed, unless it's recorded. So, it's unfortunate, but we're gonna have to end this meeting." And the agents get up and leave. And I have never seen a Form 302 that I consider to be accurate. The agents write down what
they wish you had said. Rather than what you said. It is a wholly corrupt organization that has not gotten any
better since Hoover died. - [Lex] And fundamentally, the
corruption is in the culture that is resisting the
Constitution of the United States. The First and Fourth and Fifth amendments. - Correct. It's not financial corruption. It is corruption of the mission. And I think it should be abolished. And if we need a federal
investigative agency, it should be a new name, a new
culture, wholly new members, a new director. It's impossible to reform the FBI. - Can you elaborate on what
exactly is broken about the FBI? Is it the famous saying, from Stalin's KGB head, Beria, "Show me the man and
I'll show you the crime"? - Right.
- Is it that kind of process? - It's that kind of process. They decide who's guilty and
then they go about concocting a case against a person
who they want to get. - [Lex] So, the goal is
not to find the truth or- - It's to solve the case and close it, and enhance their reputations. - But to show that an
innocent man is guilty is also solving the case,
from their perspective. So, to falsely convict, or falsely imprison an innocent man is also solving the case. - Well, it closes the case, if they falsely imprison an innocent man. They're interested in closing cases. - So, that's the FBI, but broadly speaking about the surveillance aspect of this, what are your views on the right that an American citizen has to privacy? - Well, wire tapping and
electronic surveillance are very, very intrusive. And I think that the circumstance that these tools are
used should be narrowed. For example, they're used
in a lot of drug cases. Since I don't think drugs
should be illegal in any event, I certainly think that it's a
terrible violation of privacy to use wire tapping in a drug case. I could see it in cases of murder, possibly in cases of serious extortion, but on other kinds of kinds
of crimes where they wire tap, especially drug cases, I believe drugs should
all be legalized anyway, I think it's... The price we pay as
society is not worth it. - On the Wikipedia page for
"Nothing to hide", you're cited. In fact, your book that you gave me today, "Three Felonies A Day", is cited. So, "nothing to hide" argument. That's an argument that if
you're a well-behaved citizen, you have nothing to hide, and therefore your
privacy can be violated. - Well, the problem is that
under the federal criminal code, particularly the federal criminal code, it is very easy to be
charged with a crime. Now, why? Under the Constitution, the Federal Government does not have plenary criminal jurisdiction. That's up to the state. How is it that the feds indict, in so many areas of American life? It's because the Supreme Court
has allowed the following absolutely insane situation to prevail. Anything can be made a federal crime, if, in the course of the
commission of the crime, the means of interstate
communication or travel are used. That means that if you commit a crime, which ordinarily would be a state crime, and you use the telephone
or you send a letter, it suddenly becomes federal. That means that the limitation
that the founding fathers who wrote the Constitution intended to keep the feds out of daily life and to give that jurisdiction to the state has been completely thwarted. 'Cause I can't think of the a case where somebody doesn't use a telephone, in the course of planning, discussing something
that's arguably criminal. And so this limited authority,
the federal government, to bring charges in
criminal cases, is illusory. The feds can indict a ham sandwich. - So basically, everybody's
guilty, and if the, if the feds wanna bring you in, they can. They can find a way.
- Correct. And that allows them to terrorize
people who are dissidents. - Yeah. What is broken, what works, about the American criminal justice system,
from your perspective? - [Harvey] The jury system. - The jury system?
- Yes. - You like the jury system.
Everyday citizens representing- - 12 ordinary people have
to agree, unanimously, in order to convict. - What do you think about the
highest court in the land, the Supreme Court? What works and what is broken
about the Supreme Court, as an institution? What are its strengths and weaknesses? - Well, the Supreme Court is unfortunately fairly political. And the current Supreme Court
is overruling precedence, which, it's really improper. Precedence should not
be overruled so easily. It's about to overrule
the affirmative action. Now, I'm opposed to affirmative action. I think I made that clear
earlier in our discussion, but still, it's a precedent, and it should be given some respect. But in order to, in order to propagate a more conservative agenda, the court is treating precedent as if it doesn't have any role, and that's a huge mistake. Some of the congressmen
on the Democratic side are looking to enlarge the court, in order to basically do
what Franklin Roosevelt was not able to do. And that is, change
the court's philosophy. But I think that's very shortsighted, because this is a long game. This is a republic we have here. And anyone who tries to, for example, enlarge
the court from 9 to 12, in order to get more
liberals on the court, then some other administration
will try to enlarge it from 12 to 15, to get more
liberals on the court. You'd have a constant fiddling with a
very important institution. - So the law should
have more lasting power than the political bickering of the day. - Correct. - Let me ask you, you've
lived one heck of a life, and fought a lot of battles
and you continue to do so, with the Harvard Board of Overseers. So, first of all, thank
you for that, but uh, we're all human, we're all mortal. Do you ponder your death? Do you ponder your mortality?
Are you afraid of it? - Well, let me say this.
My father died at 48. He died 'cause he smoked. He died at 48 because he smoked
four packs of Camels a day. He got a massive heart attack at 43. He continued to smoke, despite that. He died at 48. So, I did not
expect to live this long. 'Cause I thought it was genetic. It turns out it was cigarettes. So, here I am, I'm
gonna be 81 on May 10th. I was born on May 10th, 1942, which is Mother's Day, coincidentally, and I realize I'm not gonna live forever. I also take pride in the
fact that I have demonstrated that a lawyer does not
have to go with a law firm, in order to manage to make it. You can make your own, write
your own, what's the word? Write your own ticket. I've done that. I agree that I've had an elite education. I went to Princeton
and Harvard Law School. But I don't think you have to necessarily go to elite institutions
in order to really make it. You need to work hard. But you shouldn't put
yourself in a place where you're not gonna feel
comfortable and what's the word? Empowered? Like I refused to take Vorenberg's invitation for tenure track
position at Harvard Law School. I'll tell you one other
story that illustrates this. I was originally pre-med. My freshman-sophomore years at Princeton, I was in the pre-med program. Why? Because my parents wanted me to marry the daughter
of our family physician. And the idea was I was
gonna go to medical school and I was gonna go into
medical practice with him in Hackensack, New Jersey. We had moved from Brooklyn at the time. Long story why we had
to move from Brooklyn. It had to do with my
father's having a problem with the Furies Union and
having his life threatened. And we moved to Maywood, New Jersey, 'cause he got a job in a fur
shop in Passaic, New Jersey. And a family physician,
they had three daughters, the oldest of whom was my age. She went to Hackensack High School. I went to Pagoda High School. They're both in North Burton County. And the idea was that she
and I were gonna marry, I was gonna go to medical
school, I was going to become a partner of her father, in his medical practice in Hackensack. When he retired, I was
gonna inherit the practice. This scenario was concocted
by Carolyn's mother, and my mother. In my sophomore year at Princeton, I won a fellowship to spend that summer between my sophomore and
junior year in Paris. I was fluent by then. I had taken an accelerated French course, my freshman-sophomore year. And I went to Paris. It was my first time out of the country. I spent the entire summer working, supporting myself there,
first to pay the airfare, and I earned money for room and board. And I thought about my life
and I decided, number one, I didn't want to be a physician,
I wanted to be a lawyer. Number two, I didn't
want to marry Carolyn. And I came back, I changed
from pre-med to pre-law. I broke up with Carolyn, who was, by that time,
at school at Douglas, right down the road from Princeton. She had followed me. Or I had followed her. My life suddenly took a
wholly different turn. So, that summer, in Paris, Paris had a outsized effect of my life. Every year, the Bravo
Theater shows "Casablanca", where Bogart has this great line. He says, "We'll always have Paris." And I think to myself, I
always used to say Elsa, we used to see "Casablanca"
every Valentine's Day, 'cause it was such an
important movie to me, because Paris was
transformative in my life, and we went to Paris, every year. During my vacation, we went to Paris. That was where she took
some great pictures of Isaac where he was this high and this high, and they were hanging up in the house. And so I always... And even after Elsa's death, I've seen "Casablanca" twice now. She died in 2020. And I always think,
"We'll always have Paris." - "We'll always have Paris." (Lex breathes deeply) Well, Harvey, like I said, I hope you're
very successful in your, in your run for the
Harvard Board of Overseers. I think what you stand for, in the realm of freedom of speech is I think the thing that
makes these universities great institutions in American culture, and I'll do everything I
can to help you succeed and I just am really grateful
for all the work you've done and I'm grateful that you
would talk with me today. This was amazing. Thank you. Thanks for listening to this conversation with Harvey Silverglate. To support this podcast,
please check out our sponsors in the description. And now, let me leave you some
words from Harry S. Truman. "Once a government is committed to the principle of silencing
the voice of the opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of
terror to all its citizens, and creates a country where
everyone lives in fear." Thank you for listening and
I hope to see you next time.