Speech as the measure of freedom
In the 2014 episode, Bob Zadek asks Yeonmi Park what it felt like to reach South Korea and have her first experience of freedom. Park answers that it was everything, that she felt nothing to envy in this world, and that she would never get tired of freedom. Zadek then narrows the question to speech: whether she can speak what she wants and not be afraid. Park says yes, and describes the change concretely — that she cannot believe she can call Kim Jong-un’s name without the words “our supreme leader,” and that in North Korea she had no freedom to speak, listen or wear, and could do nothing by her own free will. Yeonmi Park – North Korean Defector: “Juche” Die, Markets Rise (2014)
Park’s account ties speech to a broader absence of agency. She says that in North Korea nobody asked her what she liked to do, what her dream was, or what she thought, because the government controlled everything and set people’s destinies; arriving in South Korea, she was at first unnerved by being asked what she wanted, because she was not used to thinking for herself. Zadek frames the segment by saying that she is experiencing freedom for the first time, and that Americans take that freedom for granted and can be passive as it slowly erodes. Yeonmi Park – North Korean Defector: “Juche” Die, Markets Rise (2014)
Platform liability and speech about sex
The 2019 episode with Elizabeth Nolan Brown approaches freedom of speech through Section 230 and the prosecution of Backpage. Zadek describes Backpage as a mainstream, long-standing, legitimate media operation, paper and online, started by two fellows to make money and to be journalists, widely read alternative media in the model of The Village Voice. Brown adds that they ended up owning The Village Voice, that they started in the 1960s as an anti-war paper, that they owned alt-weeklies, and that classified advertising in the back of the print newspapers paid for the journalism; she says the people involved have won many awards and have spent four decades fighting the federal government on freedom of speech issues. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Brown’s explanation of platform liability is that on any open internet platform — Facebook, Instagram, Twitter — users can sign up and post, filters and moderators set content rules, but if people do post prohibited content the website generally cannot be held responsible. She gives the example that a user who makes a true, credible threat on Twitter can be in trouble, but Twitter cannot. She says people argued that prostitution was happening on Backpage and Craigslist even though those sites said illegal advertising was not allowed, that some ads were coded for prostitution, and that when police found underage posters the government wanted to hold the websites themselves responsible for sex trafficking. Various attorneys general sued Backpage and various people sued in civil court, and judges kept saying federal law prohibited it and that the law would have to be changed — which, Brown says, has now been done. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Zadek notes that the founders of Backpage and several former leaders had been arrested, with trial not until 2020, and that they were not charged with sex trafficking but with money laundering for allegedly allowing prostitution ads to run. He objects that the federal crime of publishing ads promoting sex trafficking is a felony even though the underlying act is a misdemeanor, that prostitution is a misdemeanor where criminal and legal and regulated in Nevada, and that there has never been a federal referendum on criminalizing prostitution. Brown’s position is that sexual activity between consenting adults should not be criminalized whether or not money is involved, that people need not like prostitution or sex work and may advocate against it, but that criminalization creates more harms — raids, women jailed, criminal records, inability to work in brothels — and that legal brothels in Nevada see hardly any violence against sex workers because workers can screen clients. Elizabeth Nolan Brown on the War on Sex Workers (2019)
The First Amendment and the branches of government
In the 2020 episode, Randy Barnett argues that the Constitution drops out when the Supreme Court cites Congress and Congress cites the Supreme Court, and that originalism holds that the Constitution should constrain everybody, not just the courts. He says the courts do enforce the First Amendment — freedom of speech, press, assembly — and that because they enforce it, when Congress considers a law that might restrict speech it actually debates the question and makes arguments, because it knows the Supreme Court is looking over its shoulder. He compares this to his work as a felony review assistant in the Cook County State’s Attorney’s Office, where felony charges in Chicago could not be brought unless a felony review assistant signed off, so police knew their work would be checked and did better work before asking for approval. Amy Coney Barrett on Trial (2020)
Zadek’s framing in that exchange is that with double deference each side deflects responsibility to the other and “We the People” end up with no advocate for the Constitution, which he calls the line of defense against expansive government depriving people of their rights. He proposes that the people need something like a public defender in every case arguing for the Constitution, or another branch on the model of independent counsel or an inspector general, because both the legislative and executive branches abdicate. Amy Coney Barrett on Trial (2020)
Limits and the burden of proof
The 2021 episode with Ilya Somin contains the sources’ only extended treatment of when speech may be restricted. Somin says he strongly believes in broad freedom of speech, even for people with awful political views, but that one can imagine circumstances where the only options are to suppress the freedom of speech of fascists or to let fascists come to power and take over the country. In that situation he would say it is fine to restrict the freedom of speech, but he would want a high burden of proof for showing those really are the only two options — if it is the Weimar Republic in 1933, maybe they really are the only two options, but most situations are not like that. Hard Questions About Asylum and Afghanistan (2021)
The same episode’s argument is otherwise about immigration rather than speech. Somin outlines a three-part test for claimed harms of immigration: whether the problem is real, whether it can be addressed by a less draconian means than exclusion, and whether the wealth created by migration can be tapped to alleviate it. He applies the same standard to restriction of any other important human right, which is where the speech example enters. Hard Questions About Asylum and Afghanistan (2021)
Across episodes
The topic is touched in four episodes spanning 2014 to 2021, and the excerpts show no single developing argument so much as four different angles. Park (2014) supplies the experiential baseline, speech as the first thing lost under tyranny and the first thing recovered; Brown (2019) supplies the institutional case, in which a publication’s classified advertising becomes the basis for felony charges against its founders; Barnett (2020) supplies the structural case, in which the First Amendment works only because courts enforce it and Congress anticipates being checked; and Somin (2021) supplies the limiting case, conceding that even a broad defender of speech must set a high burden of proof before suppressing fascists. The later treatments are more abstract and more willing to name conditions under which speech may be restricted; the earlier ones are concrete and treat restriction as the thing to be escaped or litigated.
What the sources do not cover
The excerpts do not state which amendment or statute governs platform liability, the name or text of the law Brown says has now been passed, or what any court held in the Backpage litigation beyond the general refusal to hold websites responsible. They do not give the outcome of the Backpage trial, the disposition of the money-laundering charges, or any holding on the First Amendment status of advertising. Barnett’s account does not name a case, and Somin’s Weimar example is offered as a hypothetical rather than as history. Nothing in the excerpts addresses commercial speech doctrine, obscenity, or the speech of government employees.