Transcript for:
Free Speech and the Role of Academia Lecture Notes

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 um 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 then I am interested in figuring out who loves me the following is a conversation with Harvey silverglade 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 the writing campaign so you have to spell his name correctly civil glat 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 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 and pathetic way is 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 Friedman podcast to support it please check out our sponsors in the description and now dear friends here's Harvey silverglade 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 the 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 the e used to be education the 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 Moore's the the progressive organization rather than a civil liberties organization and um and we've taken the um the the role of dealing with free speech in in the society generally in and now this is a particularly um uh an era prone to censorship um everybody thinks they're right 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 um it's about as as intolerant an era as I can remember in I'm going to 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 um so that says a lot and um it sort of reminds me of that well let's start with that 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 um 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 that I am interested in figuring out who loves me or who likes me so hate speech is the most important in my view and yet it's uh it's banned in for example schools it's unbelievable um kids are not schooled into understanding the glory of the first amendment when when schools say to them they shouldn't say things that are going to make somebody feel bad um I mean the purpose of speech is to express honest views that people have and um so I believe hate speech is as important as love speech and my view is more important so it should be brought to the surface rather than operate in 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 there 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 is uh the thinking is done collectively and without being able to speak to each other we cannot do this kind of collective ranking and out of speed the theory is that ultimately out of speech comes truth that isn't no 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 mixed together and clash and out of that usually comes the better the better decision not always but usually more more often than not but if somebody is not allowed to be a you know sit at the table of decision making then the decision-making process is poorer um less robust diverse and ultimately less successful so can you elaborate on the idea Free Speech absolutism so hate speech can be quite painful to quite a large number of people does this worry you yep living in a free Society requires that you expose yourself to some discomfort you call it pain it's maybe emotional pain it's not physical pain um but it's uh 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 oh it's the most diverse country in the world because of immigration I mean my my grandparents My Father's Side came over from Russia my mother's side came home 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 um so um I'm thankful that they came in and um this is a great country it's got troubles right now but our country doesn't and we've had it's really had a civil war we had segregation uh 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 uh eventually lead to physical action to physical harm to others no I don't I think that that um we have developed a culture in which um it's understood that if you don't like what you hear you you talk back um you write you write something um we don't punch each other we insult each other um it's 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 by bones but names can never harm me and it's absolutely true if what was true when I was five is true and I'm I'm almost 81. so I've lived a long time I've seen it all and I'm talking from experience as well as Theory it's what happens when you reach your 80s I read that you had this line that you cannot be protected from being called an asshole correct okay especially if you're an asshole well that's uh uh but you don't have to be an asshole to be called an asshole that's correct and uh I think the internet has taught me that well the internet is posed a particular challenge to free speech absolutist because of 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 uh in newspapers or in lectures or in classrooms or or conversations among people what do you think about the tension between freedom of speech and freedom of reach as is uh kind of sometimes termed so the internet really challenges that aspect it allows the speech to become viral and spread very quickly to a very large number of people but you know we've had we've had Revolutions in um in in the modalities of communication after all newspapers were the first challenge um radio and television posed A new challenge um the FCC tried But ultimately gave up the attempt to control um obscenity for example um 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 um during much of my life we were the Warren Court it was uh William O Douglas Brennan 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 or the the people way over on the right that I call the fascists and the people way over on the left who are the Communists um but with respect to most people in this on the political Spectrum Republicans Democrats socialists Libertarians um they agree on the Primacy of free speech because it protects them when when protection is needed so to you even on the internet Free Speech absolutism should rule yes nobody's gonna die remember the death threats are not not protected um nobody's gonna die so people are going to 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 um people some people don't have as tough a hide as others well then develop it um I hope everyone I don't mean to sound uh cruel um but you know you're living in a free Society develop a tough hide so that's the cost of living in a free Society there's a cost the thing is that it can really hurt at scale to be Cyber Bullied to be attacked for the ideas the express or maybe ideas you didn't Express but that uh somebody decided to lie about you and uh use that to attack you well first of all there are there were so there were some exceptions to the First Amendment libel and slander is an exception um direct threats are an exception you know if you if you say such and such I will murder you that is not lawful if you say that it's somebody um if you say about somebody oh you know um you beat your wife um that 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 um so it's not absolute this is not the first amendment is not absolute but this is it's more absolute than it is in any other society and it's pretty near absolute um for example fraud if you would 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 going to make it more than 10 miles that's fraud that's not free speech um so free speech is not absolute there are these limits but they're very narrow specific categories of limits but uh this 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 the rumors can spread at scale thousands hundreds of thousands of people can make up things about you you have to defend yourself using more speech we're we're big we're through freedom of speech and we're big boys and girls um you have to defend yourself um you know in in some societies if you say something um if you right now if you say something nasty about Putin you'll end up in the gulag um if you say something nasty about um you know 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 because that's where we educate our young citizens and if you are educated under a notion that some Dean can can call you on the carpet because you say something which is considered racist so you can say something which is uh considered uh then you know dangerous to uh to the social cohesion um then it's not a liberal arts college now um the um the theory that I used in in the shadow University a book you've written the shadow Universe 1998 1998. you were ahead of a lot of these things I'm afraid that as as a pessimist I always saw the bad side of things betrayal of Liberty on America's campuses the shadow University the a book you co-authored with the Alan Charles yes with one of my Princeton classmates Alan Charles cores 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 um it was Harvard Law School I I taught a course in the mid-1980s um but in any event um the college campuses are one of the most important of all for uh for free speech because this is 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 the this is how you become a thinking adult you have to decide which ideas make more sense to you which ones you're going to follow um 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 you know we have in the Sciences um we have a scientific method so scientific method is you try experiments and you see which ones work and then you develop theories based to public 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 which one's not so the scientific method I apply to um to non-science to history to journalism um 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 don't do that experiment because it would be very bad if that turns out to be accurate you know that outcome that's not the way it works um every every point of view is thrown into the marketplace whether it's science or whether it's a you know non-science and that includes uh the kind of ideas and the kind of discourse that might actually lead to an increase in hate on campuses the the the First Amendment prohibits speech which is liable to produce imminent imminent violence so for example um you know the um the exception is um yelling uh falsely falsely yelling fire in a crowded movie theater a lot of people misstate it they say oh um the exception is yelling fire in a movie theater if there's really a fire you're performing a real important function but it's falsely yelling fire you can start a riot people would be crushed try to get out so there are these that that's one of the exceptions that the First Amendment as the Supreme Court has defined it um there are very few exceptions um and defamation is an exception I'm a I'm not a fan of that exception frankly but um if you say something um about somebody that has serious implications in their uh in their life and their ability their own living if you say accuse somebody of being a pedophile but it's not true that person can sue you um my own view is I think that's an unfortunate exception but I'm not on the Supreme Court um I think that I'm I'm with I a friend of mine was not hentoff that hand tough who wrote for decades for the Village Voice in New York um he was a friend of mine he was a free speech absolutist and uh he wrote a fabulous book called free speech for me but not for thee um and he was an absolutist and I'm I'm with I'm with Matt hentoff even on the defamation aspect I mean I agree with you in some sense just practically speaking it seems like that the way the best way in the the public sphere to defend against deformation is with more speech correct and through authenticity authentic communication um of the truth as you see it yeah you know it's the times the Boston Globe has said something about me that it hasn't been accurate they have invariably published my letter to the editor um I'm also uh not bashful about getting in charge in touch with the reporter that at the end of every column they give the reporters email address um and I know people say that I I have more access to the media than most people um but um all that means is I get to fame with the most people can we also comment on from the individual consumer of speech there's a kind of uh sense that freedom of speech means your 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 um that nobody can force us to sit in the room and listen to a radio program that we don't want to listen to nobody can force us to read a book that we don't want to read um the whole notion of freedom of speech means that people have uh 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's that is the theory academic freedom is the is supposed to be the highest degree of free speech yeah um you should be able to entertain all kinds of hateful threatening ideas and 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 the Harvard Yard it should be the opposite and what happens is um 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 do nothing about academic freedom they feel that their job is to keep a water 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. um and try to deal with them in 1999 when I started fire code started fire and um uh 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 and fellows of Harvard College the chief governing board of the University with the real power um the board of office is is a secondary body but quite influential uh to fire 95 percent of the administrators it would have a salutary effect on the academics of the University would have a salutary effect on free speech and academic freedom it would cut tuitions by about 40 percent um and it would create a whole different atmosphere on the campus and the same set of MIT or any other place um I think administrators are a uh a a a very uh bad uh influence on American higher education can you sort of elaborate uh the intuition why this thing that you call administrative bloat is such a bad thing for a university so first of all just in terms of the the cost of yeah maintaining there are more administrators in the American Education than they were faculty members the course is enormous number two they are inimical to the uh the the teaching Enterprise and and they feel that their job is to control things to make sure there are no problems that nobody's feelings are hurt um uh being called you know be before I a Dean because you said something um 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 you insult a black student you insult a woman um there's a disciplinary hearing but there shouldn't be um black people uh are accustomed to being insulted Jews are cousins cousins women or cousins being solid and it's very good to know who doesn't like you it's useful it is very you 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 outside of the University outside 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 by treating you like like a little flower but what role does the University have to protect students to women African-Americans anybody Jews anybody who gets killed you could be a victim of hate speech they they protect you from physical assault if somebody physically assaults you then they um they get punished but they shouldn't and so 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 is to said I want to 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 uh space of discourse that the insulter will eventually lose I think that's true I think of the insult or eventually will wear out his or her welcome um I do but I I like to know who the insultism because it gives you a deeper understanding of human nature yeah and and usually by the way my experience has been that the insulters have generally not been as smart as the people they've insulted yeah and that's probably one of the reasons they insult them because they're if they feel inferior yeah I mean I'm not trying to be a a a psychoanalyst here but a lot of the people who were the haters are pretty low down in the intellectual scale anyway 95 of administration you would fire your calling to fire 95 of the administration 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 you know 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 the beautiful variety that makes the university great which is the teaching the Student Life the protests the the the um the clubs all the fun that you can have at University all the very kind of exploration which you can't really do once you graduate correct it's the place the university is a place to really explore in every single way so let me just talk about this important thing because uh 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 uh what is this board how much power does it have uh and what would you do if elected okay first of all I have a I have a prediction yes that in about five years they're gonna probably change the name because overseer is reminds people of the slavery or yes and we're in a such a politically correct era now that the English language is being restricted corrupted is the way I put it because certain words are uh are forbidden we we have some problems in this country and I think part of the problem is the educational system has lost a sense of what academic freedom and Free Speech were all about and um and and um I think it's essential that the educational system begin to take more seriously what Free Speech you know they're feeling really are that's why I'm running for the Harvard Board of overseers so let me just link on the uh the role of the administration in protecting free speech so what often happens I think you've written about this is there's going to be a few maybe a small number of hypersensitive students and faculty that protests so how does Harvard Administration uh resist the influence of those hypersensitive protesters in protecting uh Speech and protecting even hate speech Harvard has done fairly well under the presidency of Lawrence back how I have had a couple of meetings with backho um I like back how I have donated to Harvard a prince of my Lake but my late wife took a picture of Bob Dylan and Alan Ginsberg when the Rolling Thunder review got to Harvard Square and it's a it's sort of an iconic photograph she called it the music lesson because it's got Dylan teaching Ginsburg how to play the guitar and I donated one of those to Harvard it's hanging in back House Office he 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 um I don't think she believes in free speech and academic freedom I think she's a progressive not a liberal um I'm not happy with the the uh the the the 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 uh your run for it the specifics actually it will be it'd be nice because I think you're a writing candidate and the election is over on May 16th uh yes and I think there's 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 I've graduated from Harvard you have to in order to run in order to vote in order to vote and the process I imagine is not trivial but uh it this is done online and if you're an alumni you should have received an email from a particular email address harvard.mg electionservicescorp.com and uh 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 you to vote for Harvey you have to enter his name correctly Harvey silverglate and spell it correctly um obviously I'm imagining this because I'm MIT not Harvard so I'm imagining the process is not trivial because you have to click on things you have to uh uh sort of follow instructions that are not uh trivial and uh I'll also provide an email if the process is painful it doesn't work for you that you can email email Harvard and complain I.T help harvard.edu and so on I'll provide all the links but is there something else you can say about the voting process uh 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 um I wrote to the Alumni Association and I said you have now sent out the curriculum vitais 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 um from the 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 um everybody can vote but not everybody can run it is ill becomes a liberal arts college where you know the Clash of ideas will produce the truth will worry about the class of ideas on the board of overseers the board of overses is important it doesn't have the same power and 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 the students currently going to Harvard most The Faculty at Harvard probably stand behind that ideas and the ideals that you stand behind yep the the people that love Harvard and what it stands for so yeah the alumni were educated in an era when these Concepts were taken seriously and before the administration's administrators took over so I do think if I get my message out I'm going to win the seat and if I win a seat I will have a great perch for for trying to convince the real power that be which is the Harvard Corporation to do the things that I'm suggesting you know get rid of 95 of the administrators get rid of the speech codes reduce tuition by 40 percent all of these salutary benefits uh 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 the just the freedom of expression freedom of speech freedom of thought yeah it's America's greatest universities I think is something that everybody would agree on it would have a it would have a a tremendous effect on the whole country and uh is there something to say about the details of how difficult it is for alumni to vote without experience with this you could vote online or you can vote by paper ballot you could request the paper ballot um and all I could say is that the the hard part is getting the message out um my name doesn't appear on the ballot because I couldn't get enough signatures um well Harvey Harvey silverglate s-i-l-v-e-r-g-l-a-t you know when my grandparents arrived from Russia um the uh the the the name in Russian was something like zilba glyph yeah and the immigration officer had several choices he could have said Sylvia gate yeah gate is a real silver and gate are real English words yeah he could have said silver Glade g-l-a-d-e those are real English words that's how my name is often the spelled neither Silver Gate or silver Glade silver Glade is a nonsense syllable and why the immigration officer chose to transliterate silverglid as silverglade I'll never understand and it is the cause of endless mistakes in my name well the the fundamental absurdity of life yes is also the source of his Beauty yes anyway we shall spell it out and we shall get uh 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 uh diversity inclusion and Equity programs you've been you've had a few harsh words to say about those you know the idea of diversity I think is a beautiful idea uh 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 laws 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 so it's it is it it violates the fundamental role of higher educational institutions to have any restrictions at all that that's number one number two as I think I said earlier if people students are not allowed to be frank with one another they don't really learn about one another uh and um uh you know I I've given a lot of lectures in which I have said and I think people students Now understand it I'm much more interested in hearing from the people who Haven and the people who love me I'm much more interested in knowing who disagrees with it and 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 true 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 mineconf to understand people that hate there is also quality uh to disagreement that we should strive for and I think a university is a place where when uh disagreement and even hate is allowed it's done in a high effort way you know somebody asked me once about what books I would what I have is required reading in in literature courses and I listed my account and they were horrified and I said well it's one of the most important books of the 20th century yeah I mean six million Jews died an enormous number of other people died because one guy wrote a book called mineconf and took it seriously it's one of the most important books ever written how can how can an educated person not have at least breezed through Mein Kampf and um it's not a great read though it's not a great read he was not a great writer but you you do get a sense for the the sociopath that was Adolf Hitler yes because he really acted on the words that he wrote yeah and it was there and if people took that work seriously correct they they would have understood it's one of the most important books of the 20th century and if it's Politically Incorrect to read it crazy but can you uh speak to the um the efforts to increase diversity in universities which I think is embodied in this die effort of diversity inclusion and Equity programs where do they go right where did 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 um and I think that um 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 penis Harvin case um it's the there's a there are two cases joined together one of a public university and one of a private universities the private university is Harvard uh I I predict that the Supreme Court will vote six to three to abolish affirmative action it is 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 this deciding vote was just the Sandra Day O'Connor she wrote a very famous opinion in which she said I am hesitate to vote to up to keep up there 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 um members of racial ethnic minorities and we have to try to get them into colleges um so I'm I think it should be approved for 25 years um and um it will uh it should be it should in 25 years they should have performed this role well it hasn't and um the 25 years is coming up I think it's for three or four years left the Supreme Court is going to abolish it you can take my word for them because it's such an obvious violation of equal protection why do why did affirmative action come into play because the secondary and elementary schools are so bad public secondary in elementary schools are so bad why are they so bad partly because of the control of the teachers union has Randy Weingarten runs the public school system in the United States and what I have suggested is that the effort should be to uh this is an emergency it's 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 room and so it's a very skewed Power Balance so as supportive as I am of private sector unions I am an opposition of Public Safety unions they're very destructive and I think without the 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 I had um in my late wife and I um uh had a classmate of we have a son who's Now 44 who went to the public schools in Cambridge um he has a friend first name Eugene who was 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 elsewhere and I would show up the school committee meetings when there was bargaining between the teachers union and the school committee that teaches Union objected to our being there we argued we're taxpayers we have a a kid in the school and we have his best friend lives with us and goes to school with them we have a real interest and the school committee walked out of the bargaining session the city council then reconsidered his vote and they voted that we 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 um and um so I am I have become an opponent of the national Teachers Association the Cambridge teaching a lot okay with Teachers Association I don't think there should be unions for public employees because there's no real bargaining going on and um I think that the public school system will never be improved as long as the the the teachers are unionized so that to you as at the core of the problem that results in the kind of inequality of opportunity that affirmative action is designed to solve so if you 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 will get good education if uh uh public unions are abolished correct and but do you mind incidentally the Postal Service would probably work better too that's a whole nother conversation but do you at the core of the problem of the inequality in in universities that diversity inclusion and Equity programs are trying to solve is the public education system correct of secondary education yes correct Elementary and second Elementary and secondary education well then is there use what is the benefit what is the drawback of uh d i e diversity inclusion and Equity programs Universities at 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 it will never improve as long as we're able to cover up the wound and as I said affirmative action is going to be abolished by the Supreme Court it's a clear violation of equal protection there's what's Santa's Day O'Connor understood but ignored intentionally but as an experiment uh and um I believe it's going to be abolished that that's going to have that's going to force the Elementary and high schools to get serious do you see the same issues that you discussed now at Harvard uh at MIT we're here in Boston so I have to talk about the the great universities here in Boston you've written about MIT I'm uh 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 can you explain the case of Dorian Abbott lecture that was canceled at MIT yeah well you know it's this is this is not the only it's not the only incident um there have been incidents all around the country um of academics professors who have used the don't comport with the uh as the great Lillian Hellman another friend of my late wife said they they they she said she refused to cut her garments in order to fit the Fashions of the day um Dorian Abbott didn't cut his suit um to fit the Fashions of the day in his intellectual suit and so he was um this has happened at Princeton this has happened at Harvard this has happened at MIT the great universities in the country um have decided that the Clash of ideas is not such a good idea because some people's feelings will be heard well this is there was quite a revolt against it um fire sounded the alarm and then in the end the universities were I believe Abbott was invited to come back I think he turned him down he he shouldn't have turned him down but he did um and um when when the light is cast upon these situations the universities back down because they're so embarrassed yeah um 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 so they grow the universities yes so they they really emphasize they catalyze the embarrassment yes so is that one of the ways is that the best way to fight all of this yes sunshine is the best disinfectant uh you've written about mit's connection to Jeffrey Epstein yes he was well connected at MIT and at Harvard um what do you what lessons do you draw about human nature about universities about all this from 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 the donations and the person is funding a building the building should be named after him or them Harvard is facing us now at the Sackler building because the sacklers had become now a persona non grata because of their role in producing the opioids that cause the huge scandalous opioid addiction there are people who want to have removed the name the Sackler from the Sackler Art Museum and however Larry bakhow the president of Harvard to his credit has refused to to do that um and um 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 cyclists got their money they should be bonded in the mic in in my um uh undergraduate alma mater Princeton there's a movement to remove the name Woodrow Wilson because Wilson was president of Princeton before he became governor of New Jersey before he became president of states how he got to be Governor New Jersey was he was someone sufferable that the trustees of Princeton got an denomination to run for governor of New Jersey they had said we had to get this guy out of here um and um not because it was anti-black and anti-semitic because the trustees were as well but because he just was insufferable he drove the faculty crazy and they got him out um and um so Princeton was thinking of changing the name I wrote a letter to President Ice Prince saying you know the the this is part of the University's history you don't want to re you want to rewrite history falsely uh Woodrow Wilson was the president of this institution he was one of your predecessors he never answered me either um I think these people you know they they know they have no answer the reason I didn't get a response from president ice group 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 they that they feel they have no choice because they feel that they would be criticized for racism homophobia 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 skin when I say academics I mean academic administrators they're very thin-skinned politically correct holier than now um as I said I would fire 90 95 of them and I would be more um careful in who I elected to leave this institutions so I said Pauline gay is probably going to 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 um which in part requires you to admit and to uphold the mistakes you've done in the past correct not to hide them correct and that do you do 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 um 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 um it's emotionally complicated it's particularly complicated if they want naming rights yes you know the Jeff Jeffrey Epstein biological Laboratory um that that would be a problem for most universities um I don't think that naming rights have to be given to somebody that you that you don't think is worthy of having their name I think the university has the right to say no we'll we'll take your money but we will not name the building a few I think they have a right to do that there's some degree in which you whitewash the name though if you not not with naming rights but if you take the money it allows the person in uh public discourse to say that they're collaborating they're working together with Harvard and with MIT I have a problem with universities making morals tests of the donors because not every donor is as bad as everything but some of the donors made their money in Industry by being rapacious uh by paying low wages by exploiting people you can uh make the case that accepting money from the Department of Defense from DARPA from the United States organizations that uh contributed to Waging War and killing hundreds of thousands of civilians over the past few decades correct um folks like the 10-year Professor Noam chomski who make the case that that is far more evil than accepting money from Jeffrey Epps yes still Jeffrey Epstein is a known pedophile yes so that's why I say I would I would not give him naming rights I think the university has the autonomy to not give naming rights but I think giving morals tested donors is a 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 um fire a few scapegoats and it didn't seem like a genuine response of two the evils that uh human beings are capable of sort of like rising to the surface the description in a fully transparent way of all the interactions that happen with Jeffrey Epstein and what that means um yeah what that means about the the role of money in universities what that means about just human beings in power money money is essential to run a university one of the reasons is essential is because the university is artificially artificially requires huge amounts of money and that's partly because of the administrative Army that they that they they support and they wouldn't be less dependent on the Jeffrey epsteins of the world if they didn't have the the so it's sort of all part of the same Circle but there's attention here you're saying we shouldn't be putting a morals test on money but actually if you make uh if you expand the amount of money needed to run the university this you're going to make less and less up more and more unethical decisions I I am flexible enough to say that I don't think I would name a building after somebody who is truly evil I think university has the has the right to limit the naming rights or for a donor um if I was an absolutist I would not even say that but I'm I'm not an absolutist um I 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's should be a requirement on there should be moral requirements on who to accept money from but the question is that the concern you have is 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 you don't approve of the conduct of the donor it's a Pandora's Box 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 you telling me some none of the administrators are evil um but that doesn't sure sure so uh saying 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 uh 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 uh who is who's charged with the sexual improprieties against students um and as a lawyer I represented that person um uh people say how could you represent you know some of the people that represented bad people see how can you represent them 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 be have my license taken away I'm a lawyer the only difference between my obligation and the doctors obligation is the Constitution gives people the right to assistance of counsel they don't have this constitution says nothing about the assistance of cardiologists I have a very high duty to represent unpopular people well I think as I apply the same test to the college donors um the university should not have a morals test um whose money to take um I I do draw a line about naming rights of buildings um and as I say that's an inconsistency with my absolutism but I just emotionally I just can't deal with having you know 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 right and there's a little awful lot of people who abuse power at University and especially when it comes to abuse power over students correct so sexual harassment so in the realm of sexual abuse of power and uh all kinds of other well this is a crime to use one's power position in order to take sexual advantage of a student it's a crime yeah um this is not a close question yeah but if there's a legal crime and there's uh 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 well then you shouldn't be a criminal defense lawyer or a cardiologist I think you're right 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 in a bad man or a bad woman and you take advantage of it yep we see that in the smallest of ways and in the biggest ways and uh institutions and regimes all across the world oh 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 uh without restriction all right just a 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 the problem with I'm a political liberal the problem with the 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 and um the the problem with what 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 um the um the critical it's the critical race Theory uh it started Herbert Marcus it was a professor at Brandeis and he came up with his 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 Uber mentioned in order to create real um equality you have to reduce the rights of the upper classes and artificially increase the rights of the lower classes and um that will produce out of unequal treatment true equality will be 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 going to 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 improve those schools we're going to have a problem of a 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 somebody I've spoken with many times on Mike and offline is Jordan Peterson I'm not sure if you're familiar with his work yes but he is an outspoken critic of uh or proponent of free speech on campus and he's been attacked quite a bit he's a controversial figure which throw the university to protect the Jordan Petersons of the world I think the university has an absolute absolute not relative not water that absolute Road obligation to protect the academic freedom of even the most controversial faculty members and you can imagine at a University campus you have more people who are outliers than you do in the general population um and um that's the hope at least hopefully yeah and and um 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 their views whether they're considered racist whether they're considered to be you know a promote an idea of human society that's considered obnoxious um it doesn't matter if you can't if if you can't have freedom of thought on the college campuses where can you you know then we're lost as a society we're lost and as an educational institution um 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 fascism fascist regime and uh 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 were mocked at the beginning I mean think of poor Charlie Darwin Charlie I see he is on nickname uh levels with you uh well because we're talking about these big topics of sexism and racism and hate they should not forget about the smaller topics which might even have the much bigger impact which is what you're speaking to which is uh outlier uh ideas and science so basically whelping welcoming controversial ideas in science and by controversial I mean just stuff that that uh most 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's uh that universities have empowered by the administration where young faculty that come in they're kind of uh pre-tenured yeah there's a there's a process in chasing tenure where you're kind of supposed to behave and there's an uh incentive to kind of fit in and to not be an outcast and that that's a really huge problem because oftentimes the youth is when the craziest the biggest ideas the revolution idea is common if you're forced to behave and fit in and not speak out then even in the realm of science the The Innovation is stifled well now you now you trigger my uh I'll tell you this story that you're triggered this is good in the mid-1980s I decided to take a four-month sabbatical from my law practice yes Professor James vornburg who is the time dean of the Harvard Law School heard about it heard about it from his wife Elizabeth Betty wurenberg whom I was very friendly with because we were both on the acou the ACLU of Massachusetts board at the time and um 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 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 some of the classes and um so Jim called me and said hurry the students loved 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 ever has ever in my Administration has ever turned down a tenure track offer at Harvard Law School so because I could see that I'm not a good fit that the administrators are over run the place that faculty members especially untenured who are afraid to say things that might not get help them in the 10-year Quest um it's it's not a good fit for me you saw this in the mid 1980s already yes 1985. and um I went back to my law practice I I did not want to get into this me crime that that I saw after all I had 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 was early student of this phenomenon what are some other aspects of this uh the book The Shadow University that we may have not covered well let me let me tell you a story I believe I tell it the shadow University because it was part of I'm loving these stories Harvey the stories are fabulous let me tell you a story of um um I I I I did a tour of the country go visiting campuses I visited a college called Hamline University I believe it was in Indiana or Illinois somewhere in the Midwest and I I attended a freshman orientation now listen to this this was a freshman orientation the administrators the Deans and the dnets and the deputy assistant Deans and Dean hats and that that third Deputy assistant Deans and dinas line the students up according to their skin hues oh boy the the blonde blue-eyed white folks were at one end the darkest um you know African-Americans who had whose Bloodlines had not yet mixed with any of the whites on the other end and the exercise was you had to tell how you erase affected your success in life up until that point I thought it was the most demeaning thing that I could imagine demeaning I thought to myself they could do the same about sexual orientation they could do the same about religion they could just have a national origin it would be demeaning no matter what yeah and 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 uh this kind of approach uh let me ask you from the interviewer see it 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 the level of controversy has been slowly increasing uh what's the role of this medium to to you oh this medium of speech between two people and me speaking with a controversial figure me or some other interviewer what's the role of uh giving platform to controversial figures say members of the KKK or dictators um people who are seen as evil well we want to face the world with reality and the reality is that there are some unpleasantness unpleasantnesses in the world you know running from genocide right through to ordinary discrimination um to offensiveness it's the real world as we we know it exists are we afraid to say it do we want to make people think that we live in a world where those words are not used where those animosities don't exist um the answer is no but you can whitewash you can normalize the use of those words you can whitewash the uh 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 is normalizing I see it as exposing if more people had taken mancom seriously um Franklin Roosevelt would have acted much sooner he only got us into the war as Congress to get us into the war when the Japanese made the mistake of attacking Pearl Harbor um but there were some people in the state department there were some people in the administration who were trying 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 um and um your 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 uh it's also hard to know I've never met Jeffrey ever since cartoon know what Jeffrey Epstein is 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 yeah um it's it's not a good idea to have an interview and be an idiot hey 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 let me ask about your your friend your colleague uh Alan dershowitz and I'll also ask about your review of his most recent book but before then it'd be interesting um to ask what you think of him as a human being as a lawyer he's a quite an interesting case he's represented some of the most controversial figures in history including Jeffrey up Steve including Jeffrey Epps team Mike Tyson Julian Assange Jim Baker and uh Jeffrey Epstein and even Donald Trump so he's an interesting figure what do you think about that that's about bulo what do you think what do you think about uh him as a human being as a lawyer what he represents in terms of values and ideals well he's a criminal defense lawyer and the job of a criminal defense lawyer is to represent accuse criminals uh he he is a lifelong Democrat he didn't represent Trump because he agrees with him politically voted for Hillary I believe he wrote he voted for Hillary yes that's what he says and I absolutely believe it he's a he's a liberal Democrat um but is a criminal defense lawyer as well as a professor and um I've represented some very nasty people uh in in my career um I wouldn't go out for coffee with them but they have the constitutional rights to representation and you take that very seriously yes you notice something that people don't understand about their shorts he was asked by Trump to represent him in the second impeachment as well he turned him down why do you think he turned down so people should know he represented Trump in the first impeachment she represented only in the first and he was successful and when Trump was impeached the second time he asked Alan to represent him has had a lifelong policy of only representing somebody once never twice why because he never wanted to be house counsel to the mafia and so he early on had this position he only represented somebody once the mafia wants a lawyer who's an in-house Council who represents the mirror in Wale cases so that's the reason that now I never publicly explained that I know it's a fact because I've known him from the day that we met at Harvard Law School 1964 he was a first year Professor I was a first year student we both had Brooklyn accidents 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 one and you have a right to represent Mafia people but he didn't want to be house counsel he didn't want to be you know have him ask him for advice in advance of what they were doing yeah he he was willing to represent somebody who won so no matter how awful Klaus Farm bulo was accused of killing his wife these are pretty nasty people um but he didn't want to be house counsel to any of them so you wrote a review of Alan dershowitz's new book yes 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 um and um I thought that the book was another example of the fact that everybody is entitled to a defense and that Allen'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 um uh criticized he was being shunned because of his connection to Detroit but I found it very interesting that this is a guy who represented such um I'll call them distasteful figures as Klaus Farm Bulow uh as uh um Mike Tyson uh as O.J Simpson a Sheldon Siegel uh when he was considered to be a skillful lawyer made his reputation and then he represents Donald Trump who to mind knowledge never killed anybody um and he's suddenly shunned I thought the hypocrisy of it the political preening it was um very distasteful to me um and it was not only because he was my friend if he wasn't my friend I think I'd have the same view um the holier than thou nonsense uh the hypocrisy of it um you know they wouldn't talk they were Martha's via now different I'm not so sensitive I'm someone doesn't want to talk to me it's no problem no problem at all um but Alan is because considering how controversial his life has been is someone sensitive he's somewhat sensitive and I'm just telling out you know the hour don't let it get to you you know okay I can relate I can I can definitely relate take an awesome controversial conversation still wear my heart on my sleeve it hurts all of it hurts yep but maybe the pain makes you a better a student of human nature yep maybe that's the case for him nevertheless the book has a makes a a complicated and I think an interesting point he opens the pair he opens the book with not that Donald Trump has announced his candidacy for a re-election 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 the one prosecution that has been brought now Alvin Brigg in in the Manhattan I have looked at that and I don't believe that Trump is committed a crime and yet Bragg was pressured to bring that people in his office we're threatening to quit if he didn't indict holy and proper holy unethical um and is going to lose the case has Trump committed crimes yes most of their tax crimes um if his uh he has cheated on taxes his whole career as far as I can tell he could easily be indicted for the state and federal taxes but those that they're not as sexy and um I think that um he's become a Target um by ambitious politicians ambitious prosecutors he has gotten some sympathy which he doesn't deserve and um a lot of it is is you've pardoned the phrase political correctness the better people are not supposed to be trumpers um I I I had an interesting experience about Trump I had two interesting experiences the more recent one was I was in the house of um Lauren Summers the former president of Harvard who is driven out by political correctness by the way he insulted women biologists um I was in his house when he was still president of Harvard uh when the Trump Hillary Clinton contest took place and I was with Elsa um we were invited to Summer's house in Brookline and um it looked like Hillary was going to win and the Harvard faculty members they were all celebrating they were all figuring out what their cabinet positions were going to be blah blah blah blah and then about 11 30 at night all of a sudden it was announced and in terms of electoral votes Trump had just geeked out of a victory that Hillary beat him in the popular vote but he had won the Electoral College and there was a immediate depression and um like quiet over the room but we removed him absolutely stolen salad and they they were all uh you know disappointed well that was a memorable moment and it it told me that they were a little bit too overconfident and they they were savoring being part of a presidential Administration ambition had been thwarted uh I'm not a great fan of preening ambition I think it blinds people to realities 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 have friends who are professors I represent students I have friends who are students um and uh I have a great regard for universities in higher education um but I was not about to become part of a culture I thought that it was not good for me and not good for the institution either that can a culture that can breed arrogance yes self-importance yeah and I in a sense the election of Donald Trump was a big Fu to such correct which is why I think he why I think he he managed to uh to pull it off um the jump top is a little bit uh what do you think about something you've written about uh what do you think about the mass surveillance programs by the NSA and also probably by other organizations CIA FBI and others um and broadly what do you think about the importance of privacy for the American citizen okay I believe that the FBI should be abolished because 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 uh agents honest to force them to obey the Constitution the the first fourth and fifth amendments especially um 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 a video about advising people to never ever ever talk to an FBI agent when they come knocking on your door can you uh briefly explain the intuition yes why not to talk to the FBI they have a system when they come in and interview you two agents show up never one one asked the question the other one takes notes the 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 I almost always agree to the interview but I bring a tape recorder and I say all right I'm going to tape this and they say well we're by regulation we're not allowed to do the interview of the state the if the record is the 302 the agent is 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 the I have never seen a form 302 that I considered to be accurate the agents work write down what they wish you had said yeah rather than what you said it is a holy corrupt organization that has not gotten any better since the Hoover died and fundamentally the the corruption is in the culture that is uh resisting the the the Constitution of the United States correct the first and fourth and fifth correct it's not it's not Financial corruption it is um it is corruption of the mission and um I think you should be abolished and if we need a federal investigative agency uh should be a new name a new culture wholly new members a new director and um the it is it's impossible to uh to reform the FBI can you elaborate on what exactly is broken about the FBI is it the the uh the famous saying uh from uh Stalin's KGB head uh Barry uh show me the man and I'll show you the crime right is it that kind of process it's it's that kind of process they decide who's guilty and then they go about concocting a case against the person who's who who they want to get so the goal is not to find the truth or uh to solve the solve the case and close it in in Kansas City reputations but to show that an innocent man is guilty is also solving the case from their perspective so to falsely convict or uh falsely imprisoned an innocent man is also solving the case well it closes the case if they fall asleep in prison innocent man their issues within closing cases so that's the FBI but uh broadly speaking about the surveillance aspect of this what are your views on the the the right that an American citizen has to privacy well um wiretapping and electronic surveillance are very very intrusive and um I think that the circumstance that these tools are used should be narrowed for example they're used in a lot of drug cases I don't think drugs should be illegal in any event I certainly think that it's a terrible violation of privacy to to use why it's happening in the drug case I could see it in cases of murder um possibly in cases of serious extortion but on other kinds of kinds of crimes with a wiretap especially drug cases I believe drugs should all be legalized anyway um I think it's um the the the the the price we pay as a society is not worth it there's uh on the Wikipedia page for nothing to hide you're cited in fact your book that you gave me today three felonies a day excited so nothing to hide argument that's an argument that uh if you're a well-behaved citizen you have nothing to hide in there for your privacy can be violated well the problem is that under the federal criminal code particularly the federal criminal code um 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 the thief 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 or used that means that if you commit a crime which is 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 because I can't think of we 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 feds can indict a ham sandwich so basically everybody's guilty and if uh if if the if the feds want to bring you in they can they're going to find a way 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 from the jury 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 uh 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 is is um unfortunately fairly political and um the current Supreme Court is overruling precedence which are it's really improper imprecedence cannot should not be overruled so easily um it's about to over really affirmative action now I'm opposed to affirmative action I think I made that clear earlier in our discussion but still um it's a precedent and it should be given some respect but in order to um in order to uh in order to propagate a more conservative agenda the court is treating precedence as if it doesn't have any any role and that's a huge mistake um some of the congressmen in the Democratic side are looking to enlarge the court in order to basically do what Franklin Roosevelt was not able to do um and and that is a change the Court's philosophy but I think that's very short-sighted because this is a longer this is a long game this is the Republic we have here and anyone who tries to for example enlarge the court from 9 to 12 in order to get more um 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 have a a constant fiddling with the very important institution so the law should have more lasting power than the bickering the political bickering of the day correct let me ask you you've lived one heck of a life and um fought a lot of battles and 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 because 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 this that he died at 48 so I did not expect to live this alone because I thought it was genetic it turns out it was cigarettes so here I am I'm going to be 81 on May 10th I was born on May 10th 1942 which is Mother's Day coincidentally and I realize I'm not going to 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 right you wrote what's the word write your own ticket I've done that um I agree that I've had a an Elite Education I went to Princeton and Harvard Law School but I don't think you have to necessarily go to a lead institution in order to really make it you need to work hard that you shouldn't put yourself in a place where you're not going to feel comfortable and what's the word empowered like I refuse to take Warren Birds invitation for potato track position at Harvard Law School um I'll I'll tell you one one other story that illustrates this I was originally pre-med my freshman sat four 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 to go to medical school I was going to go into medical practice with him in Hackensack New Jersey we had moved from Brooklyn at the time the long story why we had to move from Brooklyn had to do with my father's having a problem with the furries Union and having his life threatened and we moved to Maywood New Jersey because he got a job in first 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 Bogota High School the both of them both North Bergen County and the idea was that she and I were going to marry I was going to become I was in a medical school I was going to take become a partner of her father in his medical practice in Hackensack when he retired I was going to inherit the practice this this scenario was concocted by Carolyn's mother and my mother in my sophomore year of that Princeton I won a fellowship to spend that summer between my sophomore junior in Paris I was fluent by then I had taken accelerated French course my freshman sophomore year and um I went to Paris it was my first time out of the country and um I spent the entire summer working supporting myself and participate the airfare and I I earned money for room 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 for pre-med to pre-law I broke up with Carolyn who is by that time a school at Douglas right down the road from Princeton she had followed me or I had followed her and um my life suddenly took a wholly different term 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 will always have Paris and I think to myself I always just said Elsa we used to see Pastor Blanca every Valentine's Day because 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 wherever she took some great pictures this high and this high they were hanging up in the house and um so I always I I and even after Elsa's death I've seen Casablanca twice now she she died in the 2020. and um I'm always I always think people always have pairs we'll always have Paris well Harvey um like I said I hope I hope you're very successful in your um in your run for the Harvard Board of overseers I think what you stand for in the realm of freedom of speech is uh I think the thing that makes these universities great institutions in American culture and um I'll do everything I can to help you succeed and I just uh I'm really grateful for all the work you've done and I'm grateful that you will talk with me today this is amazing thank you thanks for listening to this conversation with Harvey silverglade 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 the government is committed to the principle of silencing the voice of the opposition it is only one way to go and that is down the path of increasingly repressive measures until it becomes the source of Terror to all its citizens and creates a country where everyone lives in fear thank you for listening and hope to see you next time