Do we have a free and robust public forum for ideas in America today? What has the government done to try to influence that public forum and what should be the limits on its power to do so? Can the party in power pressure private companies, social media companies, or universities to favor its views? Is there a legitimate government concern in checking misinformation and disinformation?
Do we have a free and robust public forum for ideas in America today? What has the government done to try to influence that public forum, and where does the Constitution’s protection for freedom of speech come in? Can the party in power pressure private companies, social media companies, or universities to favor its views? Do the same problems arise from private pressures to toe the party line? And what about the tensions between elites and institutions and those who feel left out of them?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Genevieve Lakier, a Professor of Law and the Herbert and Marjorie Fried Teaching Scholar in the law school, and Anthony Fowler, the Sydney A. Stein Jr. Professor in the Harris School of Public Policy. Genevieve is an expert in constitutional law and free speech, Anthony is an expert in American politics.
I brought them here to get a handle on these big questions, and as you will see, they disagree from the jump. This is an especially lively and important conversation.
Have a listen.
WILLIAM BAUDE: Do we have a free and robust public forum for ideas in America today? What has the government done to try to influence that public forum? And where does the Constitution's protection for freedom of speech come in? Can the party in power pressure private companies, social media companies, or universities to favor its views? Do the same problems arise from private pressures to toe the party line? And what about the tensions between elite institutions and those who feel left out of them?
To try to find out the answers to those questions, I'm here with two of my colleagues, the University of Chicago, Genevieve Lakier, a professor of law and the Herbert and Marjorie Fried Teaching Scholar in the Law School, and Anthony Fowler, the Sydney A. Stein, Jr. Professor in the Harris School of Public Policy. Genevieve is an expert in constitutional law and free speech. Anthony is an expert in American politics. I brought them here to get a handle on these big questions. And as you'll see, they disagree from the jump. This is an especially lively and important conversation. Have a listen. Genevieve, Anthony, thank you both for joining me.
GENEVIEVE LAKIER: It's nice to be here.
WILLIAM BAUDE: So one of the things that I'm obviously very curious about is just the state of public debate in America today, the state of ideas and whether we have a free flow of ideas and freedom of speech, and the things the government does sometimes to try to influence that, for better or worse. Both of you study this in different ways, and so I have a lot of questions about how to think about what's been going on lately.
The first question I have, which is something I know, Genevieve, you've written about, but I'd like to hear more about it, is what we should think about government attempts to influence what private actors do and say. You tell me if I'm wrong about this, but I think this is something we've seen happen across administrations of multiple parties so that the party in power, when it's the Biden administration, maybe tries to pressure social media companies to host the speech it likes or not speech it doesn't like.
We see the Trump administration now trying to punish people who say things he doesn't like through various means. So I guess I'd like to know, at a high level, am I right that that's something that's going on? And is that something that I don't the Constitution cares about?
GENEVIEVE LAKIER: Yes and yes.
WILLIAM BAUDE: OK. Tell me more.
GENEVIEVE LAKIER: So I guess, I mean, and this relates to the broader question that is the topic of this discussion overall, which is, What's the State of public debate in America and public discourse? I think for decades now, but it seems like it's continually intensifying, there is widespread anxiety and dissatisfaction with the state of public debate. There is a view, I think bipartisan view, widely shared view, although the content of that view is going to differ depending on who you are.
But I think both those on the left and those on the right, and also those in the middle, I think very many people think that there are real problems with how Americans are engaging with ideas and talking to each other, and that these problems maybe have something to do with social media, maybe have something to do with the polarization of American society, that there are all these kinds of problems and reasons. We're not quite sure why this is happening, but it's a problem. And then there's a desire to do something about it.
I think that very pronounced view has led the government, not just the Trump administration, but I think the Biden administration and to a lesser degree, prior administrations, to try and influence both to change how they themselves and the institutions of the federal government speak and engage in public debate, but also to influence private institutions, in particular what First Amendment people call speech intermediaries, the large, powerful institutions like social media companies or universities that host and disseminate a lot of speech that are important fulcrums through which the norms and rules around public debate get organized. And so they're useful targets.
There's all kinds of ways you can influence them. You can say, hey, maybe can engage in persuasion and debate yourself. Government actors can participate in public debate like anyone else, and they can speak, and that's constitutionally protected-- or it's not constitutionally impermissible behavior. It's constitutionally valuable. But I think over the past few years, they've done more than that.
The First Amendment cases are very clear that although the government can attempt to persuade private actors to change how they speak themselves and how they regulate other people's speech, they cannot coerce private institutions, like social media companies or universities, to change the rules around speech or to suppress other people's speech for fear of incurring the government's wrath.
I think that's what's happened-- that happened under the Biden administration. I think there was a lot of pressure put on social media companies to change how they talked about COVID and vaccines and medical information and other things, although I think we don't. The problem with this is so much of this happens in secret. We don't really know exactly what happened. But I think the Trump administration is wielding these tactics to an unprecedented degree in an effort to really change how private institutions talk about race, about diversity and equality, about gender identity, but also about politics.
So I think it has been using this to try and suppress democratic political opposition. And so I think, First Amendment scholars call this jawboning, when you threaten or coerce private institutions to change how they speak by wagging your own jawbone, by threatening them. I think we're in an epidemic of jawboning right now.
WILLIAM BAUDE: There's many things that we want to get into, but to think about this jawboning thing for a second. So if the idea constitutionally is that it's fine for the government to speak and it's fine for the government-- I don't know what the good kind of jawboning is-- to talk to intermediaries and tell them what it wants them to do, but it's not fine to coerce them. Lawyers love to ask the question, Where do you draw the line? But how do you draw the line? In a world where the government is so powerful, what does a non-coercive conversation between the president and a university or social media company sound like?
GENEVIEVE LAKIER: I think that is an incredibly important question. I think the cases have not done enough to think through, in a sophisticated way, what coercion looks like. I think this is a problem that pervades a lot of constitutional law. Coercion is a kind of black box. It's an important category, and we don't always know what it means. But at a minimum, the cases are clear that coercion means intentional use of the threat or reality of government penalties, state-related penalties like investigations, legal sanctions, the denial of benefits like funds in order to suppress speech that you cannot directly suppress yourself.
So we don't need to worry-- at least there's an easy out from the complicated question about, How much force is too much force? What counts as coercion versus persuasion? in that the cases are clear that the government's motives really matter. And so if the government is speaking in order to persuade, that's one thing. But if it is saying, unless you do this, we're going to do X to you, that's not permitted.
ANTHONY FOWLER: Can I ask Genevieve-- it's not my podcast, but can I ask why you said Trump's actions are unprecedented?
GENEVIEVE LAKIER: Because I mean, I think jawboning is the hidden free speech problem in American history that we haven't-- or at least in the 20th century, in the 21st century, that has been insufficiently recognized. I think from the early 20th century, in fact, ever since we got a strong First Amendment, the obvious response by government actors was to try and work around the First Amendment by threatening and cajoling rather than directly mandating.
So I think plenty of government actors, plenty of administrations, have used tactics of jawboning to try and evade the constraints and the power imposed by the modern First Amendment. But the Trump administration is doing so on a scale and in a manner that is just so explicit that I think we have never seen before. The threat of removing all federal funding to universities that don't regulate speech in the ways that the Trump administration likes, we've never seen anything on that scale.
ANTHONY FOWLER: I think we have. I think we have. I think Biden did exactly that. I think Obama did that. I mean, with the Title IX--
GENEVIEVE LAKIER: How did Biden do that?
ANTHONY FOWLER: --and the Title VI interpretations.
GENEVIEVE LAKIER: With the Title IX?
ANTHONY FOWLER: Yeah.
GENEVIEVE LAKIER: The Title IX went to the question about what pronouns schools use when referring to students. It didn't go to the core academic missions of the school, whereas what the administration is trying to do with Columbia and with Harvard is to really affect the core practices of those institutions. And so I think it raises First Amendment questions that are in scale and magnitude or insignificance greater.
However, can I just be clear? I think the Title IX and Title VI stuff under Biden was problematic and actually have written an article saying Title VI was being used as a jawbone under Biden. So I don't mean to say that there is no similarities or no problems. I think what the Trump administration is doing is taking existing tensions and problems in the enforcement of our civil rights laws and amping them up. It's not working on a completely blank slate. I'm not here to say everything the Biden administration did was fine, and Trump-- but the scale and the aggressiveness of it, I think is, unprecedented.
WILLIAM BAUDE: All right. So to make sure we have all the pieces here. So when we talk about Title IX and Title VI, I assume we're talking about things where the law will say, look, if you let your faculty use the wrong pronouns to refer to people, or if you let your faculty use racial slurs in class, or if you let your students do or say-- mostly say-- various horrible things to one another, you've created a hostile environment for people of a certain.
ANTHONY FOWLER: To be clear, the law doesn't say that. The law just says no discrimination. And then some bureaucrat interprets it to say our interpretation is this kind of behavior is banned.
GENEVIEVE LAKIER: Well, I mean courts--
ANTHONY FOWLER: And if you allow it, then you lose your federal funding, which looks a lot like jaw-- it looks exactly what you're talking about.
GENEVIEVE LAKIER: But courts have held-- it's not just bureaucrats. Courts have held that hostile environment, harassment claims are permissible notwithstanding the First Amendment, so long as they're pretty extreme and outrageous, so long as there's a pervasive and severe use of speech to create a hostile environment. The Article III courts have said this is OK. This is consistent with the First Amendment. I will say there are First Amendment scholars who are like, whoa, whoa, whoa, I don't understand this. How is this possible. But it is established precedent.
The question is, and this goes to the bureaucrats, What counts as a hostile educational, or what's the kind of speech that can create this kind of hostile environment, either in the workplace or here in the schools? Up until I think relatively recently, it was things like pervasive slurs or lots of pictures of naked women, things that really appear to be intentionally creating a kind of environment where a woman or a racial minority would not feel comfortable to exist. Under Biden, I agree that the standards seem to go down somewhat potentially.
WILLIAM BAUDE: And then I think a lot of this has really come to a head in the past couple of years with questions about anti-Semitism. A lot seems to be in the eye of the beholder, frankly. You see one account of whether speech should be seen as political speech versus the equivalent of various kinds of threatening slurs.
GENEVIEVE LAKIER: Well, I'll just note that the Trump administration, and this again goes to this question of unprecedented, it has been policy, bureaucratic policy, for a long time within the federal government to say, boilerplate. Of course, Title VI and Title IX have to be interpreted consistent with the First Amendment, which means that speech on matters of politics or other important questions of public concern. Absolutely, we're not going to treat that as the kind of speech that creates a hostile environment. That's what they have said. And then there's this question about how it's been interpreted.
But at a minimum, that has meant that kind of protest speech, a didactic speech, speech that looks like the kind of high-value political speech we protect in all other contexts, that's off the table. Most of the time, what we're talking about is direct one-to-one speech, which ordinarily gets lesser protection, harassment, staff targeting.
The Trump administration, for example, in its findings when it came to I think it was Harvard that there was a Title VI problem, was relying heavily on protest speech, which, again, is just taking attention that had, I agree, long existed in the Civil Rights laws in their relationship to the First Amendment and putting it on steroids by all of a sudden saying, the kind of speech that is really at the heart of what we think the First Amendment protects, political protest slogans, is now sufficient on its own to create a hostile environment.
I don't think we've seen that. In some ways, it's good, maybe, because it forces a confrontation. It forces courts to grapple with this difficult question about, Where is, in fact, the line between the First Amendment and the Civil Rights laws.
ANTHONY FOWLER: Just to be clear, I don't like any of it like you, but I wonder-- I'm just thinking out loud. This is more your areas than mine. I wonder if this has been going on to a large extent, and most academics only started complaining about it and being really loudly complaining about it with Trump, because the things that the Obama and Biden administration asked us to do were things that we were either happy to do or things we were already doing anyway.
We were already silencing the right-wing speech that we didn't like. Now Trump is asking us to silence the left-wing speech that we do. And so now we're saying, hey, this is an unprecedented assault on free speech. But that assault was kind of already there.
GENEVIEVE LAKIER: Well, I don't think the fact that there might have been a failure to recognize the problems with the free speech under Biden or Obama means that this isn't unprecedented. Second, I guess just to defend the intensity of the reaction now, the Title IX problems, I think, were real. There were scholars, including Jeannie Suk Gersen at Harvard and Janet Halley, who raised free speech, among other concerns about the Title IX interpretations. And those are scholars who think of themselves very much on the left who are expressing concerns. But I still think that the Title IX--
ANTHONY FOWLER: But we went along with it, but universities generally--
GENEVIEVE LAKIER: Who's "we"? We are going along with it now.
ANTHONY FOWLER: The universities complied, and there wasn't a huge stink, right? There was no Harvard standing up to the administration and saying, we're not going to comply with this. This is against our values.
GENEVIEVE LAKIER: The institutions were--
ANTHONY FOWLER: And there was no New York Times article talking about-- you see what I'm saying?
GENEVIEVE LAKIER: Yeah, I think the politics of the issue were different. Although Biden administration interpretation of the Title IX as it related to pronoun use, was struck down by federal court right at the end of the Biden administration. So there were legal challenges, although that was brought by conservatives, not by liberals. So for sure, the politics are different. But at the same time, also the question about pronoun use, while important and significant, and significant from free speech question, it doesn't go as directly to the heart of the First Amendment, which is political speech that is addressed to a broad public audience.
I just think the Title VI questions are raise the stakes of the confrontation with the First Amendment in a way that make it inescapable, the free speech problems here, in a way that I think the Title IX problems don't. But I agree, I have long been of the view that people on the left should be more worried about the uses and abuses of federal power when it comes to the meaning of anti-discrimination. So if this leads people to be warier or to look back and have more complicated views than they do now about the Biden administration's practices, I'm happy about that. I take the point.
But still, I do not think that doesn't mean that what the Trump administration is doing is unprecedented, or that the Title VI and the anti-Semitism context, because it is so much about a protest movement, a clearly political speech, is a different ball of wax from the prior administration's use of jawboning.
WILLIAM BAUDE: I don't know if this is a sympathetic way to understand this or unsympathetic, you can tell me. But given where you started with, you might think that we've always lived in a regime where the government has a lot of power over any kind of large institution. There's always the risk of an endowment tax. There's always a risk of your grants getting cut. There's always a risk of not getting whatever favors you want from the government. Universities are experiencing that now. That's always been there.
Maybe in previous administrations, everybody in the government thought it would be improper to be as candid about the strength of that power as they are now. So you'd see some people push the envelope in various ways, but you'd see them do it in-- either they were, in fact, being more careful and saying, well, we're concerned about this and not this, or at a minimum, they hired lawyers who told them they had to pretend to be more careful and say, this is what we care about. And now all the--
ANTHONY FOWLER: But I don't know if that's better. Is it better for them to be doing it secretly or quietly?
WILLIAM BAUDE: That's what I said.
GENEVIEVE LAKIER: I mean, I think there were a whole set of norms that are collapsing and maybe started collapsing under Biden and maybe started collapsing even earlier, which raises the question, Why are they collapsing? But a whole set of norms that attempted to soften I think this tension that will is identifying between, on the one hand, the idea that our liberal legal system, including the First Amendment, requires a strong separation between the public and the private realms.
That the government can exercise power within its own realm, but when it comes to the private sphere and private institutions, hands off. That's what the First Amendment says. That's what a lot of our constitutional rights are trying to protect, the freedom of the private sphere, private people to make their own decisions, whether or not the government likes it. The fact that basic political, economic fact of the modern system, which is that private institutions depend very heavily, and we're learning how much, on the government for not just funding, but privileges, permission to act, security clearances, a whole range of benefits that enable them to operate.
And so what is supposed to be a firm line between the public and the private is constantly being undermined by the basic political, economic facts of society. I think in response to this, I think profound tension in the way we're structured as a liberal democratic society with a very powerful central federal government, in response to this, I think governments for many decades had norms of chastening the power, limiting the power, constraining the power.
So they were going to give out funds to support all kinds of research. Since the 1940s, this has been a major and growing focus of government expenditure. But they were going to be careful in not making that a political question. They were going to fund universities, but they weren't going to use the threat of funds termination too much to constrain what they did. We're going to be careful because we're trying to preserve the separation, even while we're also trying to use our tax dollars to shore up these private institutions.
This worked roughly, I agree, probably not perfectly. There was lots of jawboning and problems in implementation, but it worked roughly for decades. I think we were able to maintain both a system that formerly had the separation between the public and the private realms, so that was the ideal. But also there was a lot of government support for the private institutions. Whatever, over the last 10 years, I think the Biden administration--
ANTHONY FOWLER: Do we know that it worked? I mean, it could be-- so the Twitter files was a big thing that we learned about this thing that we wouldn't have learned about in an older era. It's certainly possible that the White House was constantly in contact with the editors of major newspapers and so forth. They were telling them, cover this, don't cover this, say this, don't say that. The public wouldn't have learned about it.
And we've learned about it only recently with social media and Substack and other ways of getting information, and with Elon Musk buying Twitter and releasing all those files and so forth. I mean, do we know that this kind of thing hasn't been going on for a long time?
GENEVIEVE LAKIER: I think we do know. Historians of the press and the press, the Washington press corps in particular, we know that for decades now, in fact, I think probably the whole history of the country, from Jefferson trying to create his own favorable newspaper, there have been efforts by the government to influence the press, to wine and dine the press, to put pressure on the press. We know that during World War II and the Vietnam War and-- World War I maybe, but they used much more direct sanctions because there wasn't the modern First Amendment then.
There was plenty of efforts by the government to pressure newspapers and later TV stations to put good "reporters," pro-government reporters on the front lines and not other reporters to change their reporting. So this kind of pressure on private institutions, yes, it has existed particularly with the press. But what I'm speaking about is-- and it's a problem. It's a problem. I think there is an unwritten history of jawboning in the United States that needs to be written, because I think it is a very significant problem and has been for a long time.
But this whole of government approach, which I think is what the Trump administration is doing to pressure private institutions into suppressing speech that they don't like, using the NSF, the NIH, the security clearance regime, immigration-- didn't they just talk about removing Harvard's patents? The tax laws, this multi-pronged effort to use whatever resources, benefits, and privileges the government gives out to punish and pressure private institutions into complying with the government's mandate. I think this reveals a kind of wholesale abandonment of even the idea that there should be some kind of separation between the public and the private realm.
That raises me the question about, How liberal is our democracy anymore? Is this liberal democracy? The Trump administration seems to be attempting to eradicate, in very significant ways, the distinction between the public and the private realm when it comes to control of a speech. To me, that's a profound threat or challenge to how we think the system is supposed to structure. I really don't know of prior episodes where it has been on this scale.
WILLIAM BAUDE: So I want to get into that bigger question in a second. I want to do one more, maybe specific version of this to think about the media. So my understanding, many people have said this, that it's sort of is a custom in the regular newspaper press, the print media, that if a newspaper has a story that might implicate national security, it's not uncommon for somebody in the White House to call the newspaper and say, please don't run this story until six months from now when this operation is over, or please take out these details in the story.
I guess, so part of the question is, Is that jawboning? Does it depend a little bit? Does it depend on whether they say please? Does it depend on whether they say, please do this or else we're going to investigate whether or not you got this through an improper use of classified information, which you may or may not have? We don't know. I mean, it's obviously different because it's much more targeted.
ANTHONY FOWLER: So presumably what matters is, What happens if you don't comply? Maybe we don't observe that because that's off the equilibrium path. So this is a hard inferential problem.
GENEVIEVE LAKIER: I mean this goes to this question about what counts as coercion and why as simple intent standard, I don't think is enough. So just doctrinally, no, that's not jawboning unless the government says exactly as you suggested, like, unless you do this, we're going to do Y. Most of the time with the press, what is so interesting is that that's not necessary. There is this culture of-- I think members of the news media think that this is being responsible journalists.
This is why there's all this angst about the opening of the floodgates, the end of the traditional news media having control over what information makes it into the public sphere, because now we've got irresponsible actors operating. What that means sometimes is that these are actors who are not going to check in with the government to see whether this raises national security questions or shouldn't be run, whereas the editors of The New York Times and The Washington Post are in, I think, constant communication with government officials about these questions.
But to the extent that they are doing it because-- which is also what we see in World War II in Vietnam, many of the times, it's sort out of patriotism, or because they believe that the government has good reasons for its actions, not because they fear that bad things will happen to them. That doesn't count as jawboning. Now, should we think that that's still a problem, given this kind of ideal of the separation between the public and the private spheres, I certainly think so.
In the news business, there is efforts to insulate certain kinds of decision-making from other improper motivations. So you have the barrier between the advertising and the news sides of the business traditionally, because of an effort to make sure that commercial considerations don't influence your editorial choices. I think there should be similar kinds of walls, separation potentially, between editorial judgments and too much discussion of the government.
I think this stuff does raise problems, but it's not jawboning because it reflects a culture of-- and again, this goes to this question about, What's going on in our system of free expression that is leading to these problems? That reflects a shared culture, a shared sense of values and commitments that the government could say, Hey, can you do this? And the news media would say, we hear you. We believe you're acting in good faith. We understand the values you're trying to promote, so we will go along voluntarily.
One explanation for why we're seeing, I think, an epidemic of jawboning is that shared culture, shared set of values between the private institutions and the government has broken down. And so the Trump administration does not feel if it goes to Columbia and says, Hey, could you do this? they will just voluntarily do it. Now that's even as I say it. That's a little weird, because that Columbia was bending over backwards to do a lot of things in an effort to forestall what the Trump administration did. So maybe that's not a fully convincing story. There may, in fact, be all kinds of shared values, and we're still seeing jawboning.
But one explanation for why you see these threats is because the softer cultural ways of enforcing complicity and unanimity no longer work. And so if that's the case, then maybe this isn't a huge crisis for liberalism. Maybe this is just a sign that the private sphere is very robustly independent in a way that maybe it wasn't before. And the government hates it and is responding, but I don't know about that.
WILLIAM BAUDE: So, Anthony, do you buy the premise that there's something wrong with our public sphere in the first place and that--
ANTHONY FOWLER: I do. I do. I think the government jawboning that we're talking about is a huge problem. You're the legal scholar, so you can tell-- that seems legally a huge dilemma and unconstitutional. But even outside of the legal sphere, there does seem to be a problem of just this general sense of, I don't want to say anything that's too controversial or too upsetting. I could lose my job. I could lose my friends if I say the wrong thing, people self-censoring and so forth.
Certainly, that happens a lot here at the University. I'm sure that happens a lot if you're a journalist, if you're working in Washington and so forth. I think that is a challenge for us, certainly a challenge in the University, where we're trying open inquiries important for doing the kind of work that we do. But I think it's a challenge for society and for democracy.
GENEVIEVE LAKIER: Do you think it happens all the time at the University?
ANTHONY FOWLER: I do. I do think it happens all the time at the University. I mean, I don't do it very often.
[LAUGHTER]
WILLIAM BAUDE: None of us would.
GENEVIEVE LAKIER: Not me.
[INTERPOSING VOICES]
ANTHONY FOWLER: I speak my mind more or less openly when I'm in seminars and classes and faculty meetings, et cetera. But one bit of evidence that it does happen a lot is because I'm the kind of person who speaks my mind. Lots of other people come up to me after these meetings and say, I'm really glad you said that. I was thinking the same thing, but I was too scared to say anything, or at the next meeting, will you be sure to relay this? Because I know you're the kind of person that's willing to say the thing that might upset people.
It's fascinating. I step back, and I think, wow, you're a tenured professor at the University of Chicago, and you were afraid to speak your mind in a faculty meeting? But I think it does happen all the time. It's not on everything, I think. I think that's the other interesting part of this, is that certain things get politicized in certain directions. And so certain kinds of extreme opinions are perfectly fine to voice and other kinds of opinions that might actually be well within the mainstream of American public opinion, people are scared to voice them.
WILLIAM BAUDE: So again, you could imagine this not-- you make that sound bad. You could imagine this being, as people would say, well, that's just how social norms work. That's actually not a bad thing. If you're in a community where you care what other people think, then there will be times when it might be like you wouldn't. You imagine somebody just doing something beyond the pale. They just refuse to do their job, or they show up drunk. You can imagine, I guess, somebody saying like, man, I wish I could do that. But they don't because people would think less of you, and it's a limit. You'd be doing a bad job.
ANTHONY FOWLER: Yes. At a dinner party, it seems wrong if someone says, Will, I really think your jacket is ugly. That's just is not the kind of thing that-- that's not contributing positively to-- so it's fine if people self-censor in those ways. I don't see that as a societal problem. If people are self-censoring, even in an academic debate where we're supposed to be exploring new questions, answering scientific questions, that does seem like a huge problem for us in academia, in educational settings.
If people are self-censoring in political debates, where they maybe feel strongly one way, but they're scared to say so out loud, and so then everyone else feels like, oh, I must be in the minority, I should keep quiet, that's probably not a good thing for democracy and for political discourse. So I think it depends on what it is. Some amount of self-censoring, like you say, is perfectly normal and probably perfectly fine and not a huge problem for society.
WILLIAM BAUDE: Do you buy this?
GENEVIEVE LAKIER: I mean, I guess I'm sympathetic to the view that these kinds of forms of self-censoring are just the way in which society operates, and often can be quite good, including about political matters. So I think there's a point at which it's no longer OK to say racist things in public, even if at some point it was. I think that's probably not a bad way in which you change people's understandings and attitudes.
So social pressure, social shaming, it's just a very historically well-established means of both enforcing and shaping norms. So I think at some level, it is not new. It's also not problematic-- it's just the way society functions. Again, why I guess in the First Amendment context, we distinguish government forms of pressure from social forms of pressure. But I agree that for healthy democratic functioning, people should not be feeling like they have a whole set of political views that are simply not possible, not able to be aired in a particular kind of environment, even if in another environment, they can air them. This is not views that are beyond the pale, but simply that people don't like.
I mean, I think that just reflects a certain kind of polarization where people are navigating in these institutions. We live in a political world where the two parties have views that are understood by each other as, I guess, totally objectionable or not within the realm of debate. So if someone holds those views, you don't debate them. You shun them because they're a monster or something. I think that is a view of some. That seems like unhealthy for democracy, although, again, I'm not sure how new it is.
ANTHONY FOWLER: I think it is worth making the distinction between the elites and the general public here for a second, because the kinds of self-censorship that I'm thinking of-- I've never had a colleague come up to me and say, I have this truly objectionable, horrible view. Please express it for me. Usually, it's actually probably the majority opinion that they were just too afraid to say.
GENEVIEVE LAKIER: Can you give me an example? Like what?
ANTHONY FOWLER: Well, I don't want to get them in trouble.
[LAUGHTER]
I mean, I think if you look at the public opinion data, most members of the public are actually somewhere in the middle. If you ask them, What do you think about abortion? only 9% of Americans think it should be legal in every circumstance, and only maybe another 12% think it should be illegal in every circumstance. The vast majority are somewhere in the middle. And yet that's not what you hear from our politicians. That's not what you would hear even in an academic setting where people were having a debate on abortion and so forth.
There are a lot of people sitting there with this kind of moderate majority opinion, and they're afraid to speak out. So I'm sure there are some cases of people with really fringe, horrible views self-censoring, and you would say that's fine. But that's not the main thing here that I'm talking about. I think so the elites, the political candidates, the people running the academic seminars, the journalists, they tend to have pretty extreme views. There's lots of regular people who have views somewhere in the Middle. Very often, it's the moderate views that are kind of silenced by this. That seems not good for our discourse.
I think regular Americans might be Democratic and Republican and neighbors with each other, and they go out to dinner with each other. They're friends, and that's all fine. But it's really at the elite level where this is a problem, where you get the sense that if you're in one of these settings where most people lean one way, you're kind of afraid to say anything that looks moderate, looks like a majority opinion in America.
Anyway, I think there's a lot to talk about there, but I don't think-- when I'm talking about self-censorship, it's not people with crazy, fringe, extreme, unpalatable views that are keeping silent. It's, if anything, the extremists telling everyone else, here's what you are allowed to say, and here's what you're not allowed to say.
GENEVIEVE LAKIER: This is definitely your area more than mine, but I thought that the political science evidence was that actually not just in elite institutions like this one effect of polarization or the kind of sorting, the desire of Democratic parents not to have their kids marry Republican partners, or vice versa, and sort of a failure to recognize the legitimacy of the other side's point of view. I thought that was actually not just a phenomenon that is simply about places like University of Chicago.
ANTHONY FOWLER: I think a lot of that is overblown. There are these standard survey questions you ask people, How warmly do you feel toward Democrats and Republicans? And of course, Republicans give much higher scores for their party than the other, and vice versa. But follow-up questions on that, or different tweaks to that question, suggests that when people are answering that, they're mostly thinking about the elites. They're thinking about Mitch McConnell and Joe Biden and the politicians that they do or don't like.
They're not thinking about their friend Steve, who happens to be a Republican who lives down the street. When you ask them-- so they actually really don't like the elites. They don't like the polarized extreme elites. They're fine with their fellow citizens who happen to disagree with them a little bit. I don't think people are walking around the world thinking, I'm a Democrat, and I hate all those Republicans, and vice versa. They're looking up at the political candidates on offer and what they're hearing from these elite sources. And they're saying, I don't like that.
So there's this an interesting distinction there. But I think polarization among the general public is really not that high. If you try to measure public opinion, you get this nice normal distribution with most people in the middle.
GENEVIEVE LAKIER: That's fascinating because you wouldn't it from any of the institutions of mass communication in this country. So it's not just universities. In fact, let's come back to the University question about if you think about our media, our social media, and our political parties, the very three important buckets through which we harness and through which democratic political debate happens, I think of these as core arenas of democratic public life.
ANTHONY FOWLER: They're dominated by the extremists.
GENEVIEVE LAKIER: All of them have become incredibly polarized over the last, I don't know, several decades.
ANTHONY FOWLER: That is partly the result of this kind of self-censorship I was talking about, which is the moderates just choosing to say, I'm not going to participate in that debate. I'm going to stay out of it. I'm going to stay silent on social media.
GENEVIEVE LAKIER: But the viewer base for Fox News and for MSNBC and the user base for, I mean, I guess Twitter and Bluesky are pretty small comparatively. But still there is demand for these kinds of spaces. And so you're suggesting that it's mostly because of the choices being made by the owners and controllers? But surely they're responding at least somewhat to popular demand.
ANTHONY FOWLER: Yeah, I think extremists are much more likely to want to go scream about politics on social media. And so they're overrepresented on social media. If you go to Bluesky, it's going to be extreme leftist. And if you go to other places, you'll find the extreme right. But there's no place to go if you're like, I'm a moderate, and I'm really mad at both political parties. Where do I go scream about that? Most of these people would just rather not do that.
WILLIAM BAUDE: Because they get those people just watch sports or something--
[INTERPOSING VOICES]
ANTHONY FOWLER: Probably, yeah.
GENEVIEVE LAKIER: Why do you think there is no place to go? Surely, if there is such a significant pool of people--
ANTHONY FOWLER: There might not be demand. They might just rather not talk about politics, and they'd rather they'd rather stay out of it. But you're getting this skewed sense of public opinion only by watching cable news or social media, et cetera.
WILLIAM BAUDE: You can imagine that people who care about politics have more extreme views, and that most people who don't care about politics and have more moderate views.
[INTERPOSING VOICES]
ANTHONY FOWLER: My guess is it's the reverse causation, that people who have extreme views end up caring more about politics, just in the sense that if I am one of those extremists, I really hate the extremists on the other side. Whereas if you're in the middle, you kind of dislike the extremists on both sides. So everyone might care about it. But if I just think about what those utility curves look like, the extremists care way more about yelling about the thing they don't like on the other side.
GENEVIEVE LAKIER: I mean, there is another dimension to this, I think, which might also help explain why there might be some kind of gap between some groups feeling that their views are not being represented, and then the major organs and institutions of democratic public life, which is this-- what we have seen when it comes to the mass public sphere over the last several decades is this incredible shift towards national rather than local institutions and forms of talking about politics.
So if you're a regular person, even in Chicago, our local newspapers, which, one might think, might much more represent local concerns and so have a somewhat different political character and might actually represent the parties in a different way-- the Democratic Party in Chicago has historically looked quite different than the Democratic Party today because it was just the party. And so it would take account of all the different kinds of constituencies that were relevant in Chicago.
Anyway, that's you would look at the Chicago Tribune. You would go to local party events. You would be embedded in this local world of politics. I think that has largely-- it's not entirely gone away, but it's become much less important. The Chicago newspapers are a ghost of what they used to be. So it's just true that everything has been moving to these national institutions, which tend to be right now highly polarized. And so that might also explain this gap you're talking about.
ANTHONY FOWLER: I'm sure it does. And certainly, there's been a decline of local media, exactly the kind of thing you're talking about. So there's just less paying attention to, What is my particular city council member or state legislator doing? And are they actually representing us? And so I pay less attention. I just vote party line. That frees them up to just take whatever extreme positions they have. So I think you're probably right-- those things are related.
And yet there are exceptions. I mean, the Sun-Times just ran a big cover story on Brandon Johnson, and he's extremely unpopular, even among just Black Chicagoans, even among just those that voted for Kamala Harris, et cetera. So people are getting other news other than just the national news. They have these views that maybe you wouldn't expect if you thought of things as just two polls opposing each other.
WILLIAM BAUDE: I wonder this goes to the elite thing a little bit. I will say we still got the print Chicago Tribune every day.
GENEVIEVE LAKIER: Oh, you do?
WILLIAM BAUDE: And yeah, the reaction of [INAUDIBLE] university is that. So I feel like I'm the only person I know who regularly reads this newspaper that I think a lot of people in the city still get and read.
GENEVIEVE LAKIER: And do you think it has a different political character than the national news?
WILLIAM BAUDE: Yeah, and it's a different conversation. Again, I think if you enjoy reading about what the elites and the other side are doing and either being excited or angry about them, it's not the thing to do. But if you want to read about a different side of things, it's a different conversation.
GENEVIEVE LAKIER: It's interesting. It's complicated, actually, thinking from a jawboning perspective about what the effects of this shift towards these national level institutions like The New York Times, the centralization of all discourse in these fewer but bigger hands means. Because on the one hand, the view has often been that the government has less power, less ability to jawbone effectively these very powerful institutions because they have their own resources, economic might. They can stand up to the government. If they say, we're going to leave the country, it's going to cost the government a lot of jobs and popularity.
And so there is some evidence that, for example, with the Biden administration's campaign against the social media companies, they were actually not that compliant because Facebook has a lot of political power of its own. And so it wasn't maybe as scared of the Biden administration as a local newspaper would be if a government official comes calling. So you might think, on the one hand, the shift to the national means that it's going to be harder for the government to effectively jawbone because the might of the target is so much greater. But I think in response to that, we're seeing the mobilization of incredible amounts of government resources. So even Harvard is having trouble standing up to the Trump administration, given everything that is being thrown at it.
But on the other hand, it also means that the government can have a profound effect on the landscape of democratic politics by just targeting a few institutions. If it goes after The New York Times and Facebook and Harvard, all of a sudden, it has-- and the law firms that support the Democratic political party, all of a sudden, with relatively little effort, being able to profoundly change the character of a lot of democratic public debate. So on the one hand, it means that they're going up against more formidable adversaries. But on the other hand, it might mean that the jawboning is more effective as a sort of anti-democratic device.
ANTHONY FOWLER: Can I raise a related point? I'm still thinking about exactly how this interacts. But in politics, we normally talk about this left-right dimension. But there is this other I think increasingly important dimension of just, How pro-establishment are you? How much do you trust the CIA and the CDC, et cetera? How much do you trust The New York Times and Harvard, et cetera. I think that's probably becoming more correlated with the standard left-right dimension. But you can think of it as this separate thing.
You could be a kind of Bernie Sanders liberal, who really doesn't trust the institutions. Or you could be kind of a Donald Trump conservative, who doesn't trust the institutions. It just seems like there's this interesting phenomenon happening, where, historically, the political candidates have been kind of aligned with the establishment. And now you get Trump all of a sudden coming out and being a really successful candidate who's not aligned with the establishment. And he's, I think, winning a lot of votes precisely because of that, not because people like his right-leaning policy views, but because people like that he's anti-establishment.
That interacts with these free speech debates, I think, in interesting ways, where I think the pro-establishment people are more willing to say, yeah, we trust the government to decide for us what kind of speech should and shouldn't be allowed-- except when it's Trump, of course.
[INTERPOSING VOICES]
WILLIAM BAUDE: Or we trust the large institutions--
[INTERPOSING VOICES]
ANTHONY FOWLER: Right, right. We trust. And we trust The New York Times, and we trust Harvard to have our best interests at heart and to do the right thing, and so forth. There are a lot of Americans out there who think, we don't trust those organizations. So this is actually a really good politics for Trump to go after those organizations and to say, we don't like the establishment. We're not-- but also then for him to turn around and say, the way we're going to go after it is by targeting their speech. Obviously, there's a problem there. But I find it fascinating, and I don't yet how to think about it. It's not the kind of thing political scientists really study is this establishment dimension. But I think we should.
WILLIAM BAUDE: So I was hoping to bring this conversation to a close soon. But this brings me to the last question I'd like to ask, which is a kind of a research question, actually, which is, I guess one thing we often talk about at the University is the research frontier, What is the set of stuff that we don't yet? It's kind of just beyond what we understand about these important topics for studying. It's like the next thing we need to figure out. Often, our job as scholars is to push that out and say, OK, that's something we need to understand more about, the history of jawboning or the role of anti-establishment politics.
I guess my last question for both of you is, in this area of the public sphere we have and the threats to it from whatever direction, what do you think are the next questions on the research frontier, the thing that we don't know that we need to figure out?
GENEVIEVE LAKIER: I mean, for me, they're so big that it's kind of hard to think about them just as, to think about how to put them into bite size pieces. But as I suggest, I think that there is right now, we are seeing a profound or the illumination of a profound challenge to how we think our society is and has been structured, which is that the public-private distinction that is so core to my area of constitutional law, the First Amendment, doesn't seem to be holding up very well.
The government is wielding very effectively enormous amount of power to suppress or influence the speech decisions of private institutions. And so I think the challenge, the question that First Amendment scholars, free speech advocates of all kinds need to be thinking about is how to defend these core values of private autonomy and the public-private divide in the face of a federal government that wields such enormous regulatory and economic power. I think it's a huge question. It's so big. It's hard to think about answers to it, but I think that is the question that we need to be asking.
And then, relatedly, I think there is this deeper question about how to understand this in a historical perspective. Why is it now that we are seeing this crisis of jawboning, or maybe the more explicit, more aggressive, more overt use of jawboning than we've ever seen before? What are the changes in American society and politics and the structure of the public and the private domain that have gotten us to this point? Because I think understanding that maybe helps us think about how to get out of it. But those are the questions right now, and there are very big ones.
ANTHONY FOWLER: Yeah, there are lots of ways we could take this conversation. I'd like to see more and better research on how the public thinks about these free speech issues. I think the kinds of survey questions that are out there are pretty generic and strangely worded, and you get all kinds of different answers depending on-- and so I think you get everyone kind of expressing some tacit support for free speech in the abstract. And then the question is, Will they still support it even when it's speech that they really find objectionable?
GENEVIEVE LAKIER: No, that's the answer. No.
ANTHONY FOWLER: And is there demand for political candidates that are really committed to free speech? I don't know the answer. Maybe the answer is no, but that would be interesting to know. Is there demand for a newspaper that's really committed to free speech? And we'll say no when the government calls them up and tells them what they should and shouldn't say, and so forth. I don't know, those are interesting questions. But yeah, I think there are a lot of interesting things we should be doing on this topic.
GENEVIEVE LAKIER: Yeah.
WILLIAM BAUDE: Thank you both for joining me.
ANTHONY FOWLER: All right.
WILLIAM BAUDE: The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression, and driven by rigorous interdisciplinary research, the project brings together leading scholars to explore these questions with depth and nuance.