2024 Freedom of Thought Conference: Panel 3 - Securing the Rights of a Free People - The Freedom of Thought Podcast

Episode Transcript
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(01:19):
All right, welcome back. I'mAlita Cass, vice president for Strategic Initiatives
and director of the Freedom of ThoughtProject. Panels this morning focused on the
evolution of corporate rights and privileges fromthe founding era to today. This afternoon,

(01:40):
we are now going to focus onthe flesh and blood humans. What
are the natural rights of citizens andwhat responsibility does the state have in securing
those rights. To moderate this fantasticpanel, we have Judge Kyle Duncan.
Judge Duncan is known to many ofyou. He is a great friend of
the Federalist Society and the Freedom ofThought Project. His impressive bio is on

(02:04):
the Federalist Society website. I inviteyou to take a look, and I
guess I will just sort of likedelicately allude. He has had his own
personal experiences with insufficient appreciation for freedomof thought. Perhaps, Judge Duncan,
thank you so much for being withus the four years. Thank you,
Alita, I really appreciate you notreading my bio out loud. It is

(02:28):
a delight to be with you andto moderate this wonderful panel. I will
get to their comments as quickly asI can, because they're much more informed
and interesting than mine. But letme introduce the esteemed panelist to my immediate
left, Professor mim And Schwartzchild isa professor of law at the University of
San Diego School of Law, wherehe's taught since nineteen eighty two. He's

(02:49):
published extensively on constitutional law, Jurispruden'sLaw and religion, and civil rights.
He is an English barrister and anAmerican lawyer. He was in the Civil
Rights Division of from seventy six toeighty one. He has been a visiting
professor at the Sorbonne and Hebrew Universityin Jerusalem. He's the director of the
Institute of Law and Religion at theUniversity of San Diego. And to his

(03:15):
left is a professor who's well knownto me and to all of you as
well, Professor Randy Barnett, who'sthe Patrick Hotung Professor of Constitutional Law at
the Georgetown University Law Center. Hewanted me to mention that his most recent
book, which is coming out soonJuly second July second, which he may

(03:38):
mention himself and others yes, iscalled A Life for Liberty The Making of
an American Originalist, which sounds fabulous. I was going to mention your other
book from twenty twenty one, whichI have, but I'll just go ahead.
Don't feel inhibited, right, ProfessorBarnett. Let's see, he told

(04:01):
me to keep it short. Hedid argue the Gonzales versus Rage case in
the United States Supreme Court. Hewas one of the lawyers involved in the
NFIB versus Sabelia's case, and heportrayed a prosecutor in a twenty ten science
fiction feature film Inalienable. The movieI have no idea what that means,
but it is in your bio andI wanted to read that, and I'm

(04:24):
going to go stream that as soonas I can on YouTube. You can
watch it for free on YouTube,free on YouTube. Excellent, excellent.
Great. We have to his leftJonathan Urick, who is Assistant Chief Counsel
of the United States Chamber of CommerceLitigation Center. He joined the Chamber after

(04:45):
helping launch the national litigation boutique LhotskyKeller LLP, where, which is an
up and coming or by now avery well established litigation boutique. Before that,
he was McGuire Woods in Richmond.Jonathan served as law clerk to some

(05:05):
an amazing roster of all star judges, starting with Judge A. Wolf Lapar
when he was on the Eastern Districtof Kentucky, and then moving on to
Judge Jeff Sutton of the Sixth Circuit, and then to Relate Justice Antonin Scalia
and then Justice Clarence Thomas of theUnited States Supreme Court. He is a

(05:27):
graduate of the University of Virginia LawSchool. To his left we have the
Honorable row hit Chopra, who isthe Director of the Consumer Financial Protection Bureau,
which is a unit, as youall know, a unit of the
Federal Reserve System, charged with protectingfamilies and honest businesses from illegal practices by
financial institutions and ensuring that markets forconsumer financial products our fair services are fair,

(05:55):
transparent, and competitive. He is, as in his capacity as Director's
all alo, a member of theBoard of Directors of the FDIIC and the
Financial Stability Oversight Council. In twentyeighteen, he was unanimously confirmed by the
US Senate as a Commissioner on theFederal Trade Commission. He previously served with

(06:15):
the CFPB from twenty ten to twentyfifteen, and prior to government service,
worked at Mackenzie and Company. Andlast, but not least, is professional
and professor Josh Kleinfeld, Professor ofLaw at the Northwestern University Pritzker School of
Law, who teaches and writes aboutpolitical, legal and moral philosophy, criminal

(06:36):
law, and criminal procedure. Healso practices with Northwestern's Juvenile Criminal Defense Clinic.
He is also a professor by courtesyin the philosophy department at Northwestern.
He has been a visiting professor atHarvard and Stanford, and he is a
recipient. I could keep reading,but I won't. He has been a

(06:56):
recipient of the Paul Baytour Award,and he holds a jd from Yale Law
School, a PhD in philosophy fromthe good To University of Frankfurt, a
b and philosopher from Yale College.He clerked for J. Harvey Wilkinson on
the Fourth Circuit, Judge Janets RogersBrown the d C Circuit, and President
Chief Justice Aaron Barack of the SupremeCourt of Israel. What a great panel

(07:18):
we have here, and I'm goingto immediately turn it over to Professor Schwarzchild
to lay the initial theoretical framework forour discussion. Thank you, thank you
hugely, Judge Duncan, and it'san honor to be here, and also
pleasure to be among friends, andit's especially good to be on this panel.

(07:48):
The threat to freedom of thought andof speech, and to the life
of a free society generally, threatstudent which do not come only from government,
are not exactly a newly discovered concern. John Stewart Mills On Liberty,
a foundational text in liberal thought,published in eighteen sixty nine. This is

(08:13):
not a first edition to actually haveone at home, and to this day
an extraordinarily good read on Liberty confrontsthis problem explicitly, and a dominant theme
of On Liberty is that social pressure, pressure from private persons and institutions,

(08:35):
can be as much or more ofa threat to freedom as any legal sanction
or censorship. Recent decades in America, and not only in America, have
seen widespread growth of private, institutionaland corporate efforts to suppress free expression.
Censorious speech codes appeared at universities andcolleges in this by the nineteen eighties,

(09:01):
in some cases at public universities,but in many cases at private ones.
Stanford was a dubious pioneer in thisdubious field. But it was by no
means alone. They've kept it up. They did, indeed, But over

(09:22):
the last decade or two the situationchanged somewhat. At the time in the
nineteen eighties when the speech codes firstappeared, and even into the nineteen nineties,
it could still be taken for grantedoff campus that you were more or
less free to think and say whatyou liked. Over the last decade or

(09:43):
two, it could no longer besaid that the campuses of the universities and
colleges were islands of repression in asea of freedom, in a sharp and
apt phrase that was used actually firstby Abigail Thurnstrom, civil rights scholar about
the university and campus situation in thenineteen eighties and beyond. In the new

(10:07):
century, privately owned media and publishers, tech companies, entertainment companies, banks,
arts associations, museums, and manyothers many other private bodies have canceled
or suppressed the expression of ideas orfacts that are out of line with the
ideology that prevails among the leaders ofthese institutions or among the activists to whom

(10:33):
these leaders bow. There have beenmore than enough examples of this some widely
publicized, many more not publicized butwell known to the people involved with them,
so that the phenomenon is widely understoodin the country, and many Americans
now routinely self censor and worry thatthey might say something a wrong word or

(10:58):
the idea or opinion that could getthem into serious trouble. This was just
the sort of climate imposed socially andat least not directly by government or by
law that John Stewart Mill worried about. Climate that On Liberty argued impeded both
good decision making and a search fortruth, and also personal self development and

(11:22):
autonomy. That was the theme ofOn Liberty, that a free way of
life promotes, promoted and promotes humanflourishing, both in the sense that the
search for truth in a broad sense, including the capacity to make good decisions,
promotes human flourishing, and that autonomyitself and the ability of people and

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the fostering of people to be somethingmore than one of the crowd, is
of the essence for human flourishing.And the climate that has appeared very much
more sharply in this present century,and perhaps at the very end of the
last one, is precisely that censoriousand suppressive climate, coming at least in

(12:15):
very substantial part from private sources andcorporate sources and institutional sources that are not
merely government. That was the concernof Mill. It's not a new concern,
but it's a highly timely one.There is, however, increasingly a

(12:35):
phenomenon, and certainly the threat ofa phenomenon that Mill did not foresee,
at least not on liberty and Ithink not elsewhere, namely, extensive collusion
between government and private institutions, includingcorporate ones, to censor or discouraged speech
unwelcome to the government or out ofline with the preoccupations of the administrative state.

(13:00):
There's considerable evidence growing evidence this hasalready happened on more than a minimal
scale. One case, the Murthycase that Andrew Ferguson just referred to over
lunch now before the Supreme Court,involves claims which the lower federal courts found

(13:22):
likely to succeed on the merits offederal contacts with tech platforms to censor criticism
of COVID policies and much else.A House Subcommittee on the Weaponization of the
Federal Government has published extensive evidence ofwhat the subcommittee calls the censorship industrial complex.

(13:43):
The extent at least so far,and also the culpability of this of
government and private collaboration along these linesmight be debatable. In the Mirthy case,
the government says it was just expressingits opinion about mis information online.
It turns out that much of thatalleged misinformation, in particular about masks and

(14:11):
mass COVID lockdowns, and prominently theorigins of the COVID coronavirus in the Uhan
lad, turns out not to be, at least on very strong evidence,
not to have been misinformation at all. But in any event, it is

(14:31):
clear that the technological capability now existsand is fast developing further for unprecedented social
surveillance, including social surveillance and censorshipof expression, managed at least in part
through private channels that can claim tobe exempt from First Amendment constraints. When

(14:54):
government collaborates with private corporations to censoror suppress speech, it obviously opens the
door whenever the government is then challengedor sued for impeding free speech, to
say, oh, it's not us, and to point the finger at the
corporation, adding that the corporation isn'tbound by the First Amendment, and indeed

(15:16):
that the corporation is just exercising itsown free speech rights. This has some
of the sinister aspects of a corporatistregime. The idea developed by Mussolini's Fascist
movement as an alternative to state ownershipof everything, the Bolshevik model, that
instead there should be collaboration between government, corporate industry, labor unions, and

(15:39):
other civil organizations, of course,to do the government's will. Mussolini famously
summoned summed this up with the phraseeverything within the state, nothing outside the
state, nothing against the state.To trinilo stadto niente aldifori de lostato nu

(16:03):
la contro lostato. It's more musicalin Italian, but no less sinister.
A social credit society is now orwill soon be technically quite feasible. The
question is whether it will be politically, socially and legally feasible as well.

(16:25):
It seems to me that there aretwo possible safeguards or antidotes against such corporate
censorship and such a corporate censorship regime, and they are either competition from differently
oriented private institutions or legal regulation.Each it seems to me, has theoretical

(16:48):
and practical advantages and strengths, andalso disadvantages and weaknesses. Competition is obviously
desirable in as much as it fostersfreedom of choice. But if tech companies

(17:10):
in particular, and as a goodexample, are, as a practical matter,
natural monopolies or natural megopolies, thensuccessful competition may not be feasible.
There have been various conservative startups.Parlor was one that's been mentioned here,
and there have been a few othersthat have been started with the hope of

(17:33):
competing with the major players. Theyhave not on the whole been successful.
The alternative, and it's a questionwhether it is the only alternative, is
government regulation. Yet overweening government poweris prototypically the problem and not a solution,
and government regulation is clearly no solutionif it's the very government, the

(17:56):
party in power, that's colluded orinitiating the censorship. There are at the
moment state federalist efforts to restrain socialmedia censorship. There are two cases before
the Supreme Court at the moment wherethe constitutionality of these is being is in
question, the Net Choice cases fromFlorida and from Texas. We will presumably

(18:22):
soon know how these cases turn outunless there's news today, which there may
be not today. But it seemsto me that the efforts of a few
states to regulate tech platforms in socialmedia not to censor the political speech of
their users may be a step inthe right direction, or a shot across
the bow, but surely not afull fledged solution to government collusion with private

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bodies at the expense of John StuartMill's ideal of robust and free debate.
Perhaps most importantly, Mill might addthat a society whose members, at least
in the necessary ways and numbers whodo not value freedom will be a society
all too easily prone to losing whateverfreedom it may have had. Thank you,

(19:12):
and I'm sure we will return tomany of these themes in our cross
talk and questions. I'll hand itover to Professor Barnett. Now, now
we've just heard from Professor Schwartzchild aboutliberty and about some challenges to liberty,
to freedom from concentrations of private power. You are well known as to identify

(19:34):
as a quote libertarian. What doeslibertarianism say about such issues? Well,
thank you, judge, and thanksto the Federal Society and to Alita cast
for having me here. As Idescribed in my soon to be published memoir,
A Life for Liberty The Making ofan American Originalist, which all of

(19:55):
you can and should now pre orderon Amazon, I've always been on the
right. In nineteen sixty four,at the age of twelve, I debated
on behalf of Barry Goldwater in frontof my entire grade school student body.
In my twelve year old heart,I knew he was right. But in

(20:18):
my junior year at Northwestern University,I went from being a William F.
Buckley conservative to being a libertarian.In my senior year, I organized and
taught an accredited seminar on libertarianism atNorthwestern. Then in the fall of my
first year of law school, Imet and was befriended by Murray Rothbart and
the entire New York circle of libertarianintellectuals. By my second semester, I

(20:40):
had joined the board of directors ofthe Center for Libertarian Studies, which held
its annual Libertarian Scholars Conferences, thepapers from which were published in our journal,
the Journal of Libertarian Studies. Libertarianismin the nineteen seventies was an internally
contested intellectual project, not a ridgelyfixed set of policy positions. But unlike

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originalism, which has benefited from twentyyears of internal intellectual debate among originalists,
libertarianism has largely been frozen in ambersince the nineteen seventies. I see five
distinct ways that libertarian theory needs toup its gain. First, the need
for natural law ethics in addition tonatural rights. Second, the need to

(21:29):
distinguish between libertarian ideal theory and secondbest libertarianism in the world of governments and
competing nation states that would yield alibertarian theory of nationalism. Third, the
need for a libertarian theory of citizenshipand civil rights. Fourth, the need
to separate the public private binary fromthe government non government binary. And fifth

(21:49):
the need for a more refined theoryof corporate power and corporate rights. Let
me offer a few words about eachof these, and I offer them each
of these five in sort of declininglevels of confidence or certainty about what should
be done. First, so thisis most confident about this, The Lockean

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conception of natural rights needs to besupplemented by a more Aristotelian Tomist conception of
natural law and the good for humans. I have in mind the kind of
approach taken by my teacher Henry Veachin his nineteen eighty seven book Human Rights,
fact or Fancy, which provides apersuasive account of how the common good
relates to the natural and inalienable rightsto life, liberty, and property.

(22:36):
This position closely resembles that of NationalReviews Frank Meyer, who has commonly been
misunderstood to have advocated a fusion betweenlibertarianism and conservatism. Meyer explicitly repudiated this
aim and stressed that his actual intentwas to create a fusion between libertarianism and
the idea of virtue. This radicala libertarian, as Murray Rothbard, recognized

(23:03):
this same relationship, as he wrotein nineteen eighty one, quote, only
an imbecile could ever hold that freedomis the highest, or indeed, the
only principle or end of life.Freedom is necessary to an integral with the
achievement of any of man's ends.Freedom, he continued, quote, is
the highest political end, not thehighest end of man per se. Indeed,

(23:26):
it would be difficult to render sucha position in any sense meaningful or
coherent. A conception of natural rightsthat is informed by natural law ethics can
offer a coherent account of the commongood, and a rebuttal of conservatives like
Adrian Vermuell and Patrick Denine, whoassert that government should simply pursue the common
good directly, rather than protecting theindividual, natural and civil rights of the

(23:49):
people. Second, libertarianism, inits more radical varieties should be seen as
a form of what philosophers call idealtheory. The natural rights that libertarians insist
are adhere to persons by virtue oftheir humanity and independent of any government.
In this regard, libertarianism is atheory of ideal justice in the state of

(24:11):
nature without any government. Such aworld would by definition lack any national borders.
What libertarianism also needs is a theoryof the second best, Libertarianism needs
to be better accommodated to the nonideal world, that is the real world
of competing nation states or competing nations. A libertarian approach to nationalism, for

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example, would take seriously the competitionamong differing forms of government, which are
better and worse from a libertarian perspective. Third, the separateness and diversity of
competing forms of government entails a needfor a theory of citizenship that libertarianism now
lacks. Because the ideal theory oflibertarianism is based on natural rights, that

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is, the rights that all personscan clim in a state of nature or
pre political state. Libertarianism lacks aconception of civil rights. Civil rights are
those legally enforceable rights one receives whenone leaves the state of nature and enters
into civil society with others. Theseare the rights, privileges, and immunities

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that members of each civil society holdingthe status of citizens can claim against their
fellow citizens, as well as againstthe government. While modern libertarianism lacks the
theory of citizenship and civil rights,both concepts were understood and asserted by nineteenth
century libertarian abolitionists and eventually by theanti slavery Republican Party. While continuing to

(25:38):
assert the importance of natural rights,these nineteenth century libertarians developed a conception of
citizenship and civil rights privileges and immunitiesthat came with membership in one of many
competing regimes. Fourth, to fleshout the conception of citizenship and civil rights,
libertarianism needs to recognize that public,private, and government non government are

(26:03):
not one, but two distinct binaries. Free citizens may rightfully be excluded from
private non governmental spaces such as ourhomes and our beds, and also from
private governmental spaces such as military bases. But free citizenship may carry with it
the privilege of accessing public spaces andservices, whether governmental like streets, sidewalks,

(26:29):
and parks, or non governmental likeplaces of public accommodation and common carriers,
without being subject to arbitrary discrimination.This too, was recognized by Republicans
when they enacted the Civil Rights Actof eighteen seventy five, which barred such
discrimination on the basis of race.Finally, libertarians need to be as concerned

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with corporate state fascism as they arewith state socialism, which we just heard
myman tell us about the Italian varietyof There are no corporates in the state
of nature, as some nineteenth centurylibertarians recognized and some left libertarians insist today,
there comes a point at which thesize and scope of private corporations can
pose as great, if not greater, threat to liberty than government power,

(27:15):
especially as the two become intertwined inways that are difficult to disentangle in practice,
as we have witnessed in recent years. Imagine, for example, if
the current handful of cell phone providersbegan electronically screening our calls for subversive communications,
canceling those who were found to transgresssome alleged moral norm. Would the

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fact that they are non governmental makethem any less a threat to individual liberty?
I admit that this may be themost challenging of the five possible refinements
to libertarianism that I emerge in.A first step might be to recognize that
not all corporations are created equal.We heard a little bit about this earlier.
Some like Citizens United, the BoyScouts, and the Little Sisters of

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the Poor truly our associations of naturalpersons whose natural and civil rights should be
legally protected from the government. Butothers, like publicly traded corporations where ownership
and control have been separated, aremore akin to artificial creatures of the state,
the exact nature of which is subjectto public regulation to protect the freedom

(28:21):
of the individual. So if libertarianismis updated or revised to incorporate some or
all of these five features, itis still fair to call it libertarianism.
To answer this, let me closewith an anecdote that I relate in a
life for liberty. When I wasat three to l I did an independent

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study with Ronald Dwarkin, who isvisiting Harvard Law from Oxford. I wrote
a paper criticizing a chapter of Dwarkin'snewly published book, Taking Rights Seriously.
In that chapter, he argued thatit is absurd to suppose that men and
women have any general right to libertyat all, at least as liberty has

(29:02):
traditionally been conceived by its champions.There is no general right to liberty,
Dwarkin contended, because quote, Ihave no political right to drive up Lexington
Avenue. This is because quote,if the government chooses to make Lexington Avenue
one way downtown, it is sufficientjustification that this would be in the general
interest, and it would be ridiculousfor me to argue that for some reason

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it would nevertheless be wrong. Inmy paper, it titled Taking Liberty Seriously,
I contended that this was no refutationof a general right to liberty,
because liberty needed to be defined bythe background scheme of property rights. In
a libertarian world, you do nothave the right to do anything you will.
Only one only has the right todo You only have the right to

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do anything you will with what's yours. Our meeting to discuss the draft of
my paper was taught in the styleof an Oxford tutorial. What impressed me
most was that Dwarkin did not pushback directly against this criticism of his work.
Instead, he got inside my argumentto analyze what I needed to do,
what I needed to make it work. One of his points has stuck

(30:08):
with me to this day. Heasked, quote, if you had a
choice between a world of more libertyand less property, or more property and
less liberty, which would you choose. After pausing a moment, I said
more property. Well, he replied, then you're not a libertarian, you're

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a propertarian. Now, I thinkI'd answer this question differently. Libertarians to
need to be more concerned about thethreats to human freedom that come from private
as well as from public power,from non governmental as well as from governmental
actors. Unlike the left, however, who seek to collapse the public private

(30:53):
distinction and make everything public, Libertarians, conservatives, and even modern liberals need
to preserve the public private distinction.That poses a bigger challenge for us to
identify exactly what limits on power wieldedby non government actors are warranted. But
that makes it no less important forlibertarianism to come to grips with how liberty

(31:17):
that is needed for human flourishing,marriage protection in the real world from both
government and non government actors, libertariansmay need to be a bit more libertarian
and a bit less propertarian. Thankyou, thank you Rader much. I

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will now pass it to Jonathan Uric. Jonathan, we just heard from Randy
and from Miman about concentrations of privatepower, and of course those are often
going to take the form of corporatepower. And so do you see an
inherent tension or conflict between corporate rightsand individual natural rights? And do corporations

(32:04):
warrant some kind of special treatment becausethere are creatures of the state. What
do you think? Thanks Judge Duncanand that for the kind introduction, and
many thanks to Alita and the FederalistSociety's Freedom of Thought Project for including me
on this wonderful panel. Just beforeI get to the substance of my remarks,
I just need to start with abrief but important disclaimer. I'm here

(32:25):
today purely my personal capacity. Myremarks do not necessarily reflect the views of
the US Chamber of Commerce or itsmembers. But with that out of the
way, let's talk about natural rights. So Since the panel is about natural
rights, I think it's appropriate toaddress more theoretically, sort of the general
implications of such rights for corporations andtheir regulation by the state. I'll definitely

(32:50):
touch on law and legal history,but I want to mostly talk natural rights
theory. The panel description poses thequestion whether rights primarily limit governmental power or
whether they protect the natural rights ofindividuals, and I think the obvious answer
to that question is, of course, obviously both rights such as free speech

(33:13):
protect the natural rights of individuals againstboth governmental and private interference, you know,
for example, by violence. Buteach individual's natural rights and where others
natural rights begin, there is nonatural right to violate the rights of others,
for example, by compelling their involuntaryassociation or contract with you. So

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I thus reject any abstract theoretical conflictbetween the natural rights of individuals and the
rights of corporations. And for reasonsI will describe the modern business corporation is
not merely a creature of the state, so to speak, warranting special regulation
because of its supposedly unique privileges thatare in conflict or tension will with natural

(34:00):
rights. On the contrary, assome of the prior panelists indicated there is
no such conflict or tension at all, because the natural rights of individuals and
the rights of corporations are one andthe same. That doesn't make corporations completely
unregulable by the state. That's notwhat I'm suggesting at all. It just
means that the corporate form does notlower the theoretical bar for such regulation.

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So state regulation of corporations is notsomehow easier to justify than regulation of individuals,
because corporate rights are individual rights,just exercised collectively. Protecting the latter
cannot justify flipping just for business corporationsthe ordinary conservative and libertarian presumption against restricting

(34:47):
the exercise of natural rights. Someother justifications outside natural rights for regulating corporations
are required to overcome that presumption,such as the public good or social welfare
or economic efficiency, but those justificationsmust be the same sort of reasons that
justify restrictions on the natural rights ofindividuals. As a theoretical matter of natural

(35:12):
rights, in my view, corporationsare not uniquely susceptible to state regulation simply
because of their legal form. Individualshave natural rights to own property, to
contract, to speak, among manyother natural rights that Randy's taught us cannot
be listed, and they have acorollary natural right, I think, to

(35:32):
associate with others to exercise these naturalrights collectively, and to empower representative agents
to exercise their natural rights on theirbehalf. So I see no significance from
a natural rights perspective in the separationbetween ownership and control, even at a
very very large scale, at leastas a theoretical matter. You know,

(35:54):
you have a natural right to hireagents and appoint them to exercise natural rights.
The natural rights of very large diffusecollective groups. Every organization, regardless
of its legal form or features,consists only of individuals. So whatever we
call it a group or association isonly a concept. It's a mental construct,

(36:17):
a stand in that we use toclassify different types of relationships between individuals.
And the rights of any organization orassociation are thus the rights that it
derives from the individuals who create andsustain that organization. So, as a
matter of natural rights, a groupcan acquire an exercise only those natural rights,

(36:38):
which is members possess as individuals,nothing more, nothing less. So
when individuals join together in a voluntaryventure, they neither gain nor lose any
rights. I think these associational implicationsof individual natural rights are fairly straightforward and
uncontroversial, and in my view,what we refer to today as a corporation

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is simply a collective body in whichindividuals come together to exercise their natural contract
and property rights as investors, managers, employees, and suppliers. So,
to use a term from the lawand economics academic literature the professor Miller referenced
earlier, the modern business corporation issimply quote, a nexus of contracts among

(37:27):
these various groups. So for purposesof natural rights, then this nexus of
contracts is the same should be treatedthe same as other ordinary contracts between individuals.
The state, in my view,thus only creates, so to speak,
corporations in the limited sense that itcreates other types of private contractual relationships,

(37:51):
that is, by recognizing them andenforcing them. I thus respectfully disagree
with Randy's claim that there are nocorporations in the theoretical state of nature.
Look to be sure, I'm notmaking a ridiculous claim that there are corporate
charters issued in the pre political stateof nature. That's not the claim I'm
making, but a state, astate granted corporate charter merely recognizes the existence

(38:19):
of this nexus of private contracts thatwe refer to as a corporation, just
as a marriage certificate, for example, recognizes a private relationship among two people
that we call a marriage. ButI don't think we would say that the
state creates, so to speak,marriage, the relationship that is marriage,
so far from being a creature ofthe state. The corporation salient features,

(38:43):
which we've discussed a little bit onearlier panels, in my view, can
arise through the voluntary contractual association ofindividuals independently of the state, without violating
anyone's natural rights. And interestingly,in the late seventeenth century, British businessmen
actually discovered this on their own,that they could through private contract and trust

(39:06):
law, they could create joint stockassociations, copying closely the structure of the
companies which held royal or parliamentary chartersof incorporation without obtaining government permission. And
these joint stock associations are a prettyclose predecessor of the modern business corporation.
Indeed, in my view, they'recloser in substance to that to the modern

(39:29):
corporation than the specially chartered corporations ofold that predate the modern shift to general
and corporation laws. And Parliament actuallydid attempt to crack down in the eighteenth
century on these joint stock associations,but they nevertheless flourished on both sides of
the Atlantic, and so the mostimportant features of the modern business corporation that

(39:50):
are commonly identified as so called specialstate created privileges are entity status, perpetual
duration, and limited liability. Webasically covered the first to in the prior
panels, so I won't go overthem again. Both of those features can
more or less be created through privatecontract and agreement, so I'll skip right
to limited liab limited shareholder liability.Limited liability with respect to voluntary creditors is

(40:15):
super easy to justify under naturally andreconcile with natural rights. It's just an
implied contract. If you contract withthe corporation lend it money, you implicitly
agree to that limited liability. Okay, that's easy. So what about limited
liability to involuntary creditors Toward creditors right, I would argue that this is also

(40:35):
consistent with natural rights, even thoughit affects third parties for two reasons.
One. Investors actually can already contractfor such limited liability in other forms.
For example, you can contribute toa partnership as a non partner creditor,
right and you get, uh,you know, limited liability with respect to
torts. Indeed, limited limited liabilitywith resrect to torts is not even unique

(41:01):
to corporate shareholders. It's actually thedefault rule, the general rule for creditors
overall. And so I don't thinkit's a special privilege for just one class
of investors, for shareholders, right. So that's the first response, And
then my second response is perhaps alittle spicier, which is that, in
my view, any strict shareholder liability, meaning liability without fault for the torts

(41:25):
of corporate actors, seems to bean exception to the natural rights of shareholders
rather than an exception to the rightsof TOWRT victims. Right now, Again,
I'm not saying there may be othergood bases for justifying the rule of
vicarious liability for shareholders or otherwise,whether it's public good or economic efficiency,

(41:46):
but it seems to me inconsistent withnatural rights to have pure strict vicarious liability
for the torts of others. Youknow, for principles on behalf, you
know, for the torts of theiragents, because property doesn't commit torts.
Only people commit torts, right,So I don't think, you know what,

(42:08):
the natural right of a tort victimto a remedy for wrongful conduct requires
strict vicarious liabilities. So from anatural rights perspective, for these two reasons,
I think it's not a special statecreated privilege. And so what is
this consistent? Then? Is thispicture if I'm correct that, as at
least as an abstract theoretical matter,that the modern business corporation is consistent with

(42:35):
natural rights? What about American legalhistory? Well, look, as we've
discussed, I think, you know, sure, the corporations that existed in
the special legislative charter era before theadoption of general incorporation's laws, those were
largely corporations granted monopoly privileges, otherspecial legal privileges, sometimes even the powers

(42:58):
of the state like eminent domain orcertain police powers. Sure, I think
it makes perfect sense to treat themdifferently theoretically as a matter of natural rights.
And thus it made sense at thetime for courts to have a different
model of the corporation. But bythe late nineteenth century, when there was
widespread adoption of general incorporation laws.I think the judicial understanding of the corporation

(43:24):
aligned with the associational model that I'mdescribing now by the nineteenth century. I
have a bunch of case quotes.I won't quote him right now because I'm
running short on time, but Ithink by the time of the modern business
corporation emerged at the end of thenineteenth century, where it was no longer
this special grant of a charter bya legislature with special monopolistic and other privileges,

(43:45):
the associational model of the corporation wonout legally, and so I think
it would be a huge mistake tojust import that old model of the corporation
during the special legal charter era tothese new entities that are that we call
corporations, but that are totally different. Right. I just think as a
matter of original meaning, I thinkit makes no sense to say, well,

(44:07):
they're named the same thing, andthey look a little similar, so
as a matter of the original meaningof how we do legal and constitutional rights,
they should be treated just the same. I think that makes no sense,
given that modern business corporations are justcategorically very different with that. I
was going to talk about how thisapplies to free speech, but I've run
a little bit on time, sowell we can cover the hit, so

(44:30):
sure, Thank you, all right. Jonathan reminded me that I should also
offer a disclaimer that nothing I sayhere is reflective of the court that I
set on, which which should beof great comfort to the panelists. It
means that we're not going to getreversed by the Supreme Court anytime soon.

(44:52):
Row Hit. I will turn itover you. Thank you. I know
you wanted to talk about concentrate.You want to comment on this idea of
concentrations private power rivaling government power.Well, thank you so much, Judge
Duncan, and I especially want tothank everyone who put this together, especially
Alita and her team for inviting meback to the Freedom of Thought Conference.

(45:15):
Let me just start with again theprompt about what should be the great threat?
That we are always thinking about governmentpower, private power or both.
And I think there's an emerging consensusthat increasingly in our lives there are private

(45:35):
regulations and laws being decreed outside ofthe democratic process. We have more and
more firms throughout the economy who haveunusually an enormous power to dictate the way
in which we interact as humans,the way we connect in the commercial context,

(45:57):
and so much more so. Iactually want to really build on what
Professor Barnett said and Professor Schwarzchild talkedthrough in their remarks, with potentially a
little bit of a finer point onsome specifics around concentration and regulation as we
heard earlier. So let me startby saying that we learn in our economics

(46:23):
textbooks and from the economists that firmswill essentially produce until marginal revenue equals marginal
costs. This, of course,it does not bear out in any conception
of the modern economy where firms areactually maximizing on returns on equity. Returns

(46:45):
on equity are maximized under a seriesof strategies. But what many in our
private economy realize is that return oneconomy and equity is not maximized through some
sort of output or other types oftraditionalist economics textbooks. It's really about figuring

(47:07):
out ways to agglomerate a certain musthave or gatekeeper power, often with certain
types of network effects over switching costsare nearly impossible. So where do we
see the capital investment directed in oureconomy to investment thess that are primarily driven

(47:27):
on what is not replicable or wherethere is first mover advantages to the point
of creating dominance. We have seenthis in our history, but we see
this very close up in the wayour digital economy is evolving. And the
title and moniker of freedom of thoughtreally has focused a lot of the discussion,

(47:49):
and we heard this earlier about theoppressive and censorious ways in which speech
can be exchanged. We certainly knowthat the agglomerations of communications in today's digital
economy, of course, they havethe power to prioritize or deprioritize or censor.

(48:09):
But I think what I also wantus to think about is, as
commercial beings, what are the otherways in which there are opportunities for other
forms of censorship. So the CFPBhas been undertaking a very significant analysis and
multi year study of modern day paymentnetworks. One module focused on what we

(48:34):
see in the Chinese economy. Inthe Chinese economy, there are two dominant
payment systems, one called we Chatpay and one called Ali Pay, both
affiliated with large Chinese tech conglomerates.They're really traffic The vast majority of point
of sale payments as well as aconsiderable amount of digital payments. These two

(49:00):
individual firms, many people examined theirenormous power to be able to dictate who
gets to participate in the Chinese commercialmarkets and think that power derives purely from
loose affiliations official or unofficial affiliations withthe CCP. But I think it's important

(49:24):
for all of us to think aboutwhat power would they have even if they
were separate and apart from the Chinesegovernment. They would still, in fact,
I would argue, have the abilityto create the private laws that could
determine winners and losers in the society, cutting people off from the ability to

(49:45):
exchange money. We have started thatprocess and looked broadly in the United States
of where are there similar types ofchoke points. Of course, we know
that in the US, two ofthe payment networks, Visa and MasterCard,
outside of legislation or regulation, setthe parameters and rules whereby merchants and purchasers,

(50:13):
issuers and others are able to participate. We will, of course always
wonder when will those rules become theplace that could determine the winners and losers
even in our commercial economy. Butas we lurch into the future, we
are increasingly seeing greater and greater dominanceof big tech firm or other payment networks

(50:39):
that have that type of power.We have been assessing very large dominant tech
firms like Google's Google, pay,Apple, pay others, as well as
some examples of where there has beennetwork effects and tipping points such as the
commonly used Venmo and PayPal services.Many of you might recall how a year

(51:02):
and a half two years ago,many people who were users of paypals Venmo
service received some communications and there wasnews about this about the ability of that
company to be able to sanction orfind you taking money and confiscating it out

(51:23):
of your account for your activities orspeech that may have been unrelated to payments,
in other words, creating a wayin which they're setting laws or conditions
outside of the democratic process that denyor foreclose access to what is essentially essential

(51:44):
payments infrastructure in the society. SoI think we should all really worry about
how modern day business practices that encouragethe accumulations of capital for these network based
businesses with difficult switching costs that cannotreally be easily replicated, that are sometimes

(52:07):
referred to as winner take all markets. At what point do those entities start
becoming lawmaking bodies regulators on their own. And I think, you know,
I run a regulatory agency that issubject to all of the ways in which
the Congress can simply pass a lawto change through the democratic process. That

(52:31):
is not necessarily what we have withthese enormous agglomerations of power today. So
I want to briefly talk about whereare the places we should be most concerned
about private power. So there's ofcourse the emergence of the concept of the
economic termite, the concentrations of powerthat have crept their way into the entire

(52:54):
economy, extracting rents through the processthrough a must have input. There is
also the type of business that isa network based business that we might also
think of as social infrastructure, criticalinfrastructure. And I think if we reflect
on the past hundred years and generationsago, there was a time in which,

(53:17):
and I think this was mentioned earlieron a bypartisan basis a real recognition
about those threats, especially when itcomes to speech. But it's also more
I would draw your attention to thePackers and Stockyards Act, which really raised
serious concerns about the coercive power ofsome of the concentrated meat packers and stockyards

(53:40):
operators where there was natural oligopolies,and the ability to set rules in ways
that a producer had no meaningful optionto exit, similar to some of the
ways we would think about how speechis increasingly limited through certain channels today.

(54:01):
I believe the Communications Act of nineteenthirty four was mentioned whereby we would not
permit certain telecom operators to be ableto make determinations on which calls were able
to go through or not, orto be able to monetize and snoop based

(54:22):
on the content of those calls.We have other laws, the Bank Holding
Company Act, where there is actually, in some degree a less of an
issue of network effects, but majorissues around public subsidy and the extraction of
public subsidy and the ability to thenset those types of rules for the economy.

(54:42):
I think we should be looking atall of these as some degree of
place of how do we think ofthe modern economy in those contexts, and
where is it going to be moretechnically feasible for there be threats to liberty,
which I think is a real bigquestion Right now, we move and
lurch more and more toward a digitizedworld with fewer and fewer gatekeepers around that.

(55:07):
I believe Professor Barnett raised the issueof the Civil Rights Act, and
I wanted to just build on somethinghe said where he used the term discrimination.
And in fact, when we thinkof anti discrimination in the nineteen sixties
era of protected class, that wordactually derives from the common carrier tradition of

(55:30):
not discriminating against those who are movinggoods, those who are moving information and
others. So I think we insome ways need to think of how those
agglomerations of power really do pose somesimilar threats. So here's how I would
like to say that we should bethinking about competition and regulation, which I

(55:52):
think you're really importantly framed up.Obviously, both play really important roles.
Stimulating competition and decentralization has a numberof liberty enhancing effects, and I think
as we think about regulation, weshould also think about how we can make

(56:13):
regulation rights enhancing. So what arethe ways in which those types of gatekeeper
power or choke points can be ameliorated. One of those ways is there are
ways to do it. We aregoing to be finalizing some rules later this
year that essentially allow individual consumers toswitch and fire their bank or other financial

(56:37):
company more easily and switch their businesselsewhere, in other words, lowering the
friction and reducing the switching costs,to reduce people being trapped by a dominant
incumbent who is laying down more privatelaws and regulations that may in fact pick

(56:57):
winners and losers. And there's alot of other examples about how we can
think about arming people with more rightsand more ability to control their destiny rather
than allowing private actors with concentrated powerto be able to dictate that. So
I don't want to go over myallotted time, but just again, I

(57:20):
really want to thank everyone for puttingthis together, and I really appreciate some
of the comments we heard earlier becauseI think there's a lot and we can
learn from it. Thank you,Professor Kleinfeld. You told me before the
panel that all I needed to doto get you going was to tap you,

(57:42):
So I'm tapping you right now.Well, Thanks Judge, and thanks
Federalist Society. Thanks above all toAlita. I just want to echo what
Andrew Ferguson said at lunchtime about theremarkable things you're doing and have built with
the Freedom of Thought Project. Ivalue it as a person who's been in
the Federal Lists Society for twenty oneyears now. So I'd like to tell

(58:04):
a story. It's a hypothetical story. It starts a few months in the
future and goes a few years intothe future, and I just want to
tell a story with a point atthe end. So story starts. In
July twenty twenty four, the SupremeCourt has decided that Florida and Texas may
not tell private social media companies whoto platform their private corporations. They have

(58:28):
free speech rights too. They're likenewspapers. They don't have to platform everyone,
and their rights include deciding when toallow someone who in their view is
engaging in hate speech or misinformation tobe on their site. They can exclude
them if they want. There's anotherScotus case decided about a month from now.

(58:49):
Let's imagine where they decide that thegovernment is free to encourage social media
companies to take misinformation off their websitesabout the pandemic, for example, or
about climate change. Now, tobe sure, government can't coerce social media
companies. Coercion is wrong, butthey're free to remonstrate they're free to correct
the record, they're free to expresstheir opinion, as the government officials do

(59:13):
this all the time. And ofcourse there are big events happening outside of
SCOTUS this summer, number of institutionaland cultural developments. For example, many
private health organizations and educational institutions governmentalorganizations too agree there are thirty four genders
thirty four and the struggle against systemicracism goes on. The current manifestation is

(59:38):
just the problem of the existence ofTrump voters, of course, and they're
racist, anti immigration policies, andworryingly that racism is spreading across Europe with
the rise of the far right.They're learned articles on whether fascism is back
yet. And of course there areyet more revelations of powerful men sexually assaulting

(59:59):
women, showing the presence of systemicsexism as well. So fast forward,
it's twenty twenty six. As everyonenow knows, there are forty one genders.
The AMA Harvard Medical School in California, state governments all agree. There
are some who complain about it,but increasingly they are recognized for the transphobic

(01:00:20):
hate mongerers they are, and particularlybecause social media companies recognize that denying gender
identity as a form of hate speech. They use their content moderation policies to
remove people who engage in hate speechwith the permission given them by the Supreme
Court. In twenty twenty four,Biden has been re elected and due to
health problems, has replaced two SupremeCourt justices, Justices Thomas and Roberts,

(01:00:45):
and the new Supreme Court has repudiatedthe sffav Harvard case. They have quite
said that the case was racist,but they've said it was sort of racially
insensitive or tone deaf. Have givenpermission to engage in positive forms of racial

(01:01:06):
affirmation. Another thing that happened intwenty twenty six was yet another police killing
of an unarmed black man, andthe BLM movement has redoubled in response.
And at this point all the institutionsthat dominate American life are determined that every
admission to a university, every scholarship, every prize, and every job opportunity

(01:01:29):
should take account of the need tofight systemic racism everywhere. Of course,
they are objectors to this, peoplewho say it's wrong, but they're not
on social media because they're speech constituteshate speech. They have a shadowy network
of communications with one another on thingslike Signal and WhatsApp and snapchat, and

(01:01:50):
they try to communicate with the publicthrough substacks and other forms of communication to
the extent they can. It's twentytwenty eight. There are fifty three genders.
Everyone knows. Sorry. The problemof racist, transphomic climate change denying
speech is getting worse. And it'san election year. The candidate of the
fascist right is JD. Vance Andas all institutional leaders know, this is

(01:02:15):
a unique threat to democracy. Theythought Trump was a unique threat to democracy,
but this is a doubly unique threat, ultra unique. It's a threat
to true democracy, and it's athreat by the populists who are really fascists.
And it's urgent that our institutions defenddemocracy from the voters. And thankfully

(01:02:35):
Google owns WhatsApp and Facebook owned Signal, and so they close them down.
Now. Now, some people say, wait, that doesn't make sense in
light of the profit motive. Thoseare very those are very profitable alternative forms
of communication. But there's a phealanxof economically minded lawyers who say, no,

(01:02:55):
no, these businesses only do whatis profit of bull and so they
must have had a profit motive.It follows analytically that they had a profit
motive from the fact that they didit and they are businesses. The biggest
thing that might happen in twenty twentyeight is actually that the Vance Campaign was
debanked. Since they are, afterall, hate engaging in hate speech and

(01:03:20):
generally in hate, they have beendebanked. It's hard to give them money
to contribute to them, and hardfor them to spend it on advertising or
whatever else that successfully defeats the VanceCampaign. It's twenty thirty, there are
sixty seven genders everyone knows, andthe Stop Hate movement has taken off.

(01:03:45):
The Stop Hate movement is the biggestmovement in recent American life, and the
Stop Hate Movement has found that debankingwas quite effective against the Vance Campaign,
and AI is improving and increasingly wecan identify not just Advance Campaign as being
a hate organization, but just individualswho have a propensity to hate, people

(01:04:08):
who are prone to engage in hatespeech and misinformation, and their dbank too,
kind of like the truckers in Canada, private universities insist that they too
have a right to create a safeand respect for educational space, and they
use these same AI technologies to enforceDEI norms against hate speech and misinformation.

(01:04:30):
Social ostracism is then joined to anetwork of formal sanctions, and it's joined
to various job consequences, because ofcourse employers want to know in advance if
they're going to employ someone who mightengage in hate, and so gradually this.
You know, students are afraid tospeak in school, and they keep
their mouths shut. Private universities only, by the way, not public universities,

(01:04:55):
although there doesn't seem to be toomuch airspace between public and private universities.
And twenty two, okay, it'stwenty thirty two. There are seventy
seven genders. Everyone knows. AImakes it easy to score people for their
propensity to hate, and other communicationsnetworks join what the social media companies did
long before. So emails just failif you're prone to hate, cell phones

(01:05:20):
just drop calls. And if somepeople say this is outrageous, but others
point out quite correctly that the principalunderlying it is the same as the principal
underlying the social media companies deplatforming peoplewho they have no responsibility to platform because
they're private corporations with their own freespeech rights. Verizon is a private corporation
with its own free speech rights,and so is Gmail. Other institutions follow

(01:05:45):
suit, after all universities have doneso, So why not k through twelve
institutions They know less than universities havean interest in a safe and respect for
learning environment. And why not airlinesalong with banks? Why not hotels?
People get a known traveler number,and your non traveler number doesn't identify your

(01:06:06):
propensity to terrorism, but your propensityto hate, and that affects your ability
to travel. It's twenty thirty four. There are eighty three genders. The
United States is indubitably the freest countryin the world. It must be.
All our political philosophers and constitutional lawyersagree. There has been no state action

(01:06:27):
to invade free speech rights. Infact, alone among the Western countries.
The United States recognizes that private corporationsare right sparers and their rights must be
respected to private companies can be whothey are, and if you don't like
it, hey start your own.Wisdom has prevailed. Corporations are a nexus
of contracts. Their freedom is anextension of the freedom of all natural persons.

(01:06:50):
And on a larger level, werecognize that state oppression is unlawful,
but oppression just is state oppression.Conceptually analytics, no other kind of oppression
is possible. Oppression is the state. The state is the only oppressor.
So if you limit the state,you expand freedom. It's necessarily so to
limit the states to expand freedom.And by the same token, we recognize

(01:07:14):
that all rights are limitations on thestate. And again that's just a conceptual
truth. That's what a right is, is a limitation on the state.
There are children and there are rubswho think silly things about rights, like
being free to speak means you can'tbe fired for what you say. But
they're just unenlightened. They don't understandthat rights are limitations on the states.
It's a curious thing. As oftwenty thirty four, we know where the

(01:07:39):
freest country in the world, butno one feels free. Even in twenty
twenty four, foreign visitors to theUnited States. Our students in our universities,
for example, say that American freespeech is a joke. They feel
more controlled than they do in theirhome country. By twenty thirty four,
ninety eight percent of Americans say thatsaying wrong things in class or at work

(01:08:00):
will lead to sanctions they cannot endure. In a sense, everyone knows what's
unsayable, but in another sense,it's always changing. On the one hand,
there's a general understanding that the unsayablethings are broadly about identity plus special
topics like climate change. On theother hand, the lines keep moving,
and so occasionally people without meaning tomess up, they say something they didn't

(01:08:24):
realize was unacceptable, and they getspanked or really destroyed. But that's the
educational process that's now the rest ofus learn what's unsayable and not. In
terms of how people live, ofcourse, people fall into line. There's
a few rebels. Of course,they're almost all male. They're the kind
of people who don't like to makeeye contact and talk your ear off about
cryptocurrencies. They've then not quite liveoff the grid types, but they're getting

(01:08:47):
close. Socially normal people do notrebel against the entire structure of their society.
In fact, they don't even disagreewith the entire social structure of their
society, because that's an impossible aboutcognitive burden to sustain. They modify their
thinking to live within the social normsthat they experience. I'm going to end

(01:09:10):
the story here in twenty thirty four. I'll let you imagine what happens on
the way to twenty forty four.A dystopian story is an invitation to see
something that is going wrong in thepresent day. But what has gone wrong?
After all? In all of mystory there was no state action.
There are some things you know whenyou feel them. You know when you're

(01:09:30):
in love, you know when you'rehaving fun, and you know when you're
free. But you still need tomake sense of how you feel. You
still need to make sense of whetheryou're free with what justification. What I
want to suggest is that what's gonewrong in my dystopian story is a fundamental
mistake, a philosophical mistake about thenature of rights. A right is a

(01:09:55):
functional capacity to live in a certainway. The freedom of religion means to
be sure that you can't be toldby the government who and how to worship,
But it also means you can't bestoned for blasphemy. The right to
free speech is a right to speakwithout consequences so severe as to overwhelm a

(01:10:15):
reasonable person's willingness to speak. Canonly the state infringe. Free speech is
the legal right to free speech onlya right against the state. No,
there's no foundational structure as to whocan infringe free speech or other natural rights.
This is my contention as a philosopher. Or right is a right to

(01:10:39):
a functional capacity to live in acertain way, But there's no foundational structure
to how those rights can be invadedor how we can defend them. It's
not as though the Constitution applies onlyto the states, or statutes or common
law whatever else can apply only tostate action. The legal protection of the

(01:11:01):
right, the way it needs tobe protected, depends on the circumstances in
which we find ourselves, and overthe course of historical time, those circumstances
are extremely variable. Maybe the threatis state tyranny, and what we need
is a system of constitutional rights againstthe state. Maybe the threat is violent
criminal gangs. If you can shootme, I don't have rights, and

(01:11:24):
so we need vigorous criminal law.Maybe the threat is violent ideological gangs like
the Reconstruction Congress found with the KKK, And then if you lynch me for
voting, I don't functionally have aright to vote. And the solution is
to extend federal protection, federal statutoryprotection to what would otherwise be matters of

(01:11:44):
state assault. In other words,there is no philosophical structure to how we
redeem rights in given circumstances. Itis a question of the contingent circumstances in
which we find ourselves. The greatesterror in modern political or legal philosophy is
that a right is conceptually defined asa limitation on government. That has no
support in the foundational thinking on theorigins of rights, the early Enlightenment thinking

(01:12:10):
that inspired Locke the idea that we'rebeings made in the image of God and
endowed by God with certain inalienable rights. It has no foundation in utilitarian Enlightenment
thinking that we are beings who havethe capacity to suffer, and our rights
exist to prevent certain kinds of suffering. It has no foundation in the deep
kantient or deontological thinking that we arebeings with the capacity for freedom and that

(01:12:33):
our freedom has to be defended.It has no support at the American Founding.
It wasn't part of the natural rightstradition that the founders believed in the
common law tradition they inherited. Itwas not part of their conception of rights
that they were fixed that the rightswere purely limitations on the state. In
fact, they innovated things like commoncarry or doctrine precisely because they didn't think

(01:12:57):
that it has no support of reconstruction. There is a recognition then that it
was private actors interfering with rights,and that securing the rights meant using the
government against institutions like the KKK orprivate hoteleries or the like to secure people's
natural rights, and no support inthe modern civil rights era, which developed

(01:13:18):
the ideas of places of public accommodationto defend rights. Now in our era,
there is a great threat to rightsfrom those who had create systemic oppression
in the name of a comprehensive ideology. And there's a phalanx of defenders of
this new threat to liberty from twosides. From the left, of course,
those who agree with the ideology beatimposed not all of those on the

(01:13:41):
left, but some, And fromsome of those on the right. There
are those who cannot conceive of aright except as a limitation on the state.
But I say again, a rightis a functional capacity to live in
a certain way, and our goalis to organize society in such a way
as to make people can live livescharacterized by the enjoyment of certain rights.

(01:14:03):
How we realize that that those rightsdepends on the circumstances of our time.
Thank you, thank you. Ishould I should say, if the if
the professor thing doesn't work out,you could get a job writing for the
TV show Black Mirror. And yes, of course, of course you say

(01:14:29):
you were describing the future Professor Klinfield. But it sounded like modern day Scotland
to me? Was what's your whatyou were describing? And Canada? Yes,
no, no disrespect of course tothose great nations. All right,
now, so I have let everyonerun over because I believe in spontaneous ordering.
Uh. And so what I thinkwhat we'll do is we have just
a few minutes left that like eachof you, if you want to just

(01:14:53):
add add something to your presentation andresponse perhaps to something that you heard,
if you wish, And then ifwe have few minutes after that, we
can take one or two questions.Why don't I come back to you myman?
Well, I think to some extentall of us on the panel at
least are grappling with much the sameissue, namely, in a world in

(01:15:19):
which Joshua's dystopia is very imaginable andin which as Judge Duncan says, to
some extent, you don't have towait till twenty thirty four or twenty forty
four, because there's an awful lotof it going around in twenty twenty four.
The question is to what extent bothgovernment and private institutions, including corporations,

(01:15:45):
And then, third of all,the collusion of government and private corporations
all can be dealt with in waysthat don't impede human flourishing, and in
particular that don't create a censorship regimeand a regime of the suppression of freedom

(01:16:09):
of thought and freedom of speech.And that that's that's really the that's that's
the dilemma, and it seems tome there there are two possibilities. One
is that government is unique, andthe government can drive a tank into your

(01:16:32):
drawing room, into into your bedroom, and a private corporation can't do that,
and therefore that it makes sense totreat government as a uniquely suspect threat
to freedom, and that the privateprivate ordering is a is less threatening and

(01:16:58):
more compatible with your flourishing. Andthe trouble is that there's an awful lot
of evidence going around that it isn'tnecessarily so we see in the Supreme Court
term this year examples of private abuse, some of it promoted by government.

(01:17:20):
The volocase, which the Supreme Courtvery interestingly decided a couple of weeks ago,
involved essentially pressure from rather thuggish NewYork state agencies on banks and insurance
companies to debank and de ensure theNational Rifle Rifle Association. And interestingly,

(01:17:44):
it was so thuggish on New York'spart and so overt and so unsubtle that
the not only was the Supreme Courtunanimous that this was a violation of free
speech by the State of New Yorkin violation First Amendment, but the opinion

(01:18:04):
was written by Justice so to Mayor, the Biden administration felt constrained to come
in on behalf of the NRA,as did the A. C. L
U, and implicitly the Biden administration, I think it was visible to everybody
was coming in on behalf of theNRA in order to vindicate the Biden administration's

(01:18:27):
own slightly more subtle position in theMirthy case and in other contexts where the
government wants to claim, oh,we're just expressing our opinion to the tech
platforms and the social media companies andwe're not actually bullying them or strong arm
strong arming them in order to suppressmisinformation. And so this is the Supreme

(01:18:49):
Court came out unanimously with the backingof the Biden administration against that kind of
government collusion, with efforts to debankpeople for their ideas and their thoughts in
more subtle contexts. It's more subtle, and it's predictable that however the mercy

(01:19:12):
case comes out, it's not goingto be unanimous. And that's the that's
the problem really that confronts the courtsin the country and and those of us
who are concerned in federal society aboutmaintaining a free society. And the tension

(01:19:33):
is between uh seeing government alone asa threat and the idea that pluralism,
including pluralism of corporate entities is ais a is a an effective counterweight and

(01:19:54):
an effective antidote to creeping tyranny.And the question of whether corporations and private
ordering will successfully do that or whetherthey too are culturally and in other ways
so prone at this point to attackingfreedom rather than promoting it is is the

(01:20:23):
problem I think of perhaps the greatestproblem that those of us concerned with freedom,
are going to be needing to wreckto wrestle with now and in the
foreseeable Thank you. Why don't welet Randy? I just we don't have
much time left. I'm going tomake two basic points. One is that
our history says that rights, firstand foremost are rights that we have against

(01:20:45):
each other and not against the government. I cite first of all, the
Declaration of Independence, which, afteraffirming the natural rights to life, liberty,
and the pursuit of happiness, saysto secure these rights, governments are
instituted among men to their just powersfrom the consent of the government. In
other words, what it's saying isthat governments are established to secure these rights.

(01:21:06):
Governments are not established to secure theserights against government. Governments are established
to secure these rights against each other. That's the first duty of government.
Then you need a constitution to protectus from the protector. So you create
a new problem when you create governmentto secure these rights. But the first
duty of government is to secure theserights. The equal protection of the laws

(01:21:28):
that is protected by the Fourteenth Amendmentwas put into the Fourteenth Amendment because Southern
states were failing to protect the rightsof its people from private violence. And
from private rights violation, as wellas later on from private discrimination in places
of public accommodation, paces of publicamusement, and common carriers. So these
and it was the failure of stateprotection that gave rise to the need for

(01:21:50):
a constitutional amendment and a Section fivepower in Congress to fill in the gap
that states were leading open. Sothis is an example how rights can't possibly
be limited. Natural rights are notpossibly limited to government, especially in the
state of nature when there is nogovernment. The second thing I'll just say
very briefly is a plea for theory. Now, I know that lawyers don't

(01:22:14):
like theory, and a lot ofpeople don't like theory, but the issues
that we've been talking about on allof these panels are very complicated, and
it's not enough just to take adystopian view of the kind that Josh so
eloquently described and say, all right, there's a problem here. You have
to do something else that Josh starteddoing, and that is you have to

(01:22:34):
have a theory about what the problemis. And the theory, know,
you formulated a theory of rights.Well, he has to do that in
order to figure out what's wrong withwhat's going on. So I just have
to This is where academics come in. This is where scholars come in.
We need this and it's not justenough to legislate by the seat of your
parents. It's okay to try,because in the meantime, you know the

(01:22:56):
house is on fire, you mightwant to try to do something to put
it out. But we have tothink harder about exactly what liberty is and
where the threst for liberty lies,and how to distinguish between corporate power when
corporate power is simply being used tomake profits, and when simply being used
to protect itself, and when corporatepower is being leveraged to affect the decision
making and conduct of all the restof us. Thank you, and we

(01:23:18):
can. I've been given permission bythe powers that be to take an extra
five minutes for questions. So inthat case, well, and so we'll
move on. Jonathan, I knowyou wanted to no, no, please,
no, no, you go rightahead, and sure you had something
else. Do you wanted to sayabout free speech? Yeah? I mean
I think I think this actually,you know, follows from what Randy and

(01:23:40):
my men were discussing, which isthat I totally agree in the theoretical framework
that Randy just you know, laidout that you know, I concede that.
I think it's obvious that natural rightsare rights against private as well as
public interference. I think the questionis, you know, there are lots
of different natural rights. Right andthe right to contract and the right to

(01:24:01):
associate are also natural rights. Andso you know, again put the original
meaning of the First Amendment aside fora second. You know, there are
conflicts between you know, the naturalright to speak and someone else's natural right
to refuse to contract or associate withyou. Again, those are not rights
that are inviolable or never subject tostate regulation. They just I don't think

(01:24:24):
they can be justified by a theoryof natural rights. I think they need
a theory of the public good orsocial welfare or something else, some theory
of constraining rights rather than the rightsthemselves, because at least I think as
conservatives and libertarians. Maybe we don'tall share this, but I think as
conservatives and libertarians we basically accept thepremise that you have a natural right to

(01:24:45):
associate or contract or not with certainpeople, and we restrict those rights for
very good reasons anti discrimination, whilelots of things, but we need a
theory of why. Okay, letme just comment very briefly on a few
people have raised the threat of debanking, and I think both as we think

(01:25:09):
about the various ways in which peoplecan be foreclosed from living their life that
is beyond just some of the enumeratedprotections we have in our constitution, and
I think the ways in which thatpower can be weaponized should be very,
very concerning. And the general schoolof thought over the past forty years is

(01:25:34):
do whatever, on whatever basis youwant. You can even use an algorithm
now to do it. And Ithink that the technical feasibility of implementing ways
to foreclose people from living their lifeare greater than ever. And there's a
number of ways in our existing statutesI believe to protect against that we should

(01:25:59):
all be thinking about using. Iask you when and when in the future
is my core going to be abolished? I'm curious when I need to start
looking for another job. Forget it. That's that's just a joke. Go
ahead. Sorry, I didn't needto joke, you know, as I
said, just tap me and Iget going. So sorry, I jumped
the gut. I want to,you know, take up the invitation that

(01:26:21):
Randy uh presented at the end tostart thinking theoretically about rights. I think
he's right. I think Randy's rightthat we need to engage in some high
level theory to reconsider some basic premises, to face challenges that our society didn't
face or didn't know what was facingbefore. And I the place to focus

(01:26:45):
our theoretical fire, at least atthe beginning, is what is a right?
What do we mean by a right? We want to be a rights
respecting country. What does it meanto respect or right? I've heard it
said that every right to polices avalue, that the right to life protects
the value of life, that theright to freedom of religion protects the value

(01:27:08):
of religion. I think that's right. I think we could add every right
polices a certain way of life.So we can ask what does it mean
to set up a legal regime bywhich we protect lives characterized by the right
to life? And I think thefirst thing we would all think of is
protections against various forms of arbitrary violence. As Randy intimated, the first idea

(01:27:30):
of the right to life is aprotection against certain kinds of criminality. What
does it mean to have a rightto religious freedom, Well, it means
that no one can tell you,the government can't tell you have worshiped.
But it also means that you're notpropagandized or indoctrinated to such an extent that
you cannot have a faith that's authenticallyand truly your own. You have the
capacity to, for example, readthe Korean and read the Talmud, and

(01:27:55):
read the Torah, and read aNew Testament and decide which faith resonates with
you. What does it mean tolive a life characterized by the right to
be free of arbitrary discrimination. Well, as we've long since discovered, discovered
in the eighteen seventies and rediscovered inthe nineteen fifties and sixties, that doesn't
just mean a right to be freefrom governmental discrimination. It means a right
to be free from discrimination in theplaces of public accommodation, places of work

(01:28:20):
and learning. What does it meanto be a person? There's a freedom
of thought conference. What are thesocietal presuppositions of being a free thinker?
You know, to some extent it'san immunity from certain kinds of imposition or
propaganda, But it's also a rightto be educated in such a way that

(01:28:41):
we have the capacity to think forourselves, which is a positive right that
has to do with our education.In other words, every right that we
care about invites us to think aboutthe legal system by which we protect a
person whose life is characterized by theenjoyment of that right. And that's the
theoretical exercise that Randy is inviting.Well said, we can take a couple

(01:29:01):
of minutes, and if anyone hasquestions from the floor, we'd be happy
to entertain them. Please Hi.So, first of all, I think
the only thing wrong with Professor Kleinfeld'sdystopia is the timeline is just far too
optimistic. And so as somebody whosefamily comes from the other side of the

(01:29:23):
Iron curtain, I think it's worthremembering that even the late Soviet Union was
not characterized primarily by state action andcensorship. The Gulag was not in very
heavy use by the late sixties andseventies, and plenty of places in the
Soviet Union or its satellites. Instead, what you saw thing you saw things

(01:29:44):
like if you were a painter,there was a guild and artists Guild,
which is a private organization that thenchecked if you had if you were in
good standing with the party, whichitself was only a quasi governmental organization,
and if you weren't, then youcouldn't make the purchase of buying paints,
not to mention your work wasn't exhibited, et cetera, et cetera, Right,

(01:30:04):
but like even the purchase of paint. So I don't know that there's
such a huge gap between. Ithink people traditionally think of tyranny, even
the more classic kind, the statekind, there's always sort of this private
enforcement, or at least has beensome of this private enforcement. But my

(01:30:24):
question is, you know we've hadwith Murth Murthy, with all the NCLA
cases, with just example after example, with the Twitter files, whatever else,
you know. Professor Schwarzschild pointed tothe collusion part of this, where
what we're seeing is that the structureof the kind of censorship or tyranny that

(01:30:45):
we're seeing has a purely private componentthat Professor Kleinfeld laid out in his Dystopia,
has this mixed kind of component thatProfessor Torschild pointed out with the collusion,
where there's influence, we have todecide exactly how much influenced by government
is coercive, right, So whatstructure, because I can just in the

(01:31:08):
previous panels, plus you know recentSupreme Court cases. You can think of
antitrust, common carrier law. Rethinkingon a theoretical level what we think of
as rights or or you know,this way of life kind of protection way
of thinking about this. But whatactual legal avenues do you think are the
most likely to develop a body ora doctrine of law that recognizes what we

(01:31:33):
even if it doesn't currently sort ofconnect with our various first amendy, jurisprudence
or whatever else, so we allrecognize as rights, if I may.
You're asking about remedies, So doesanyone want to just add anything quick with
respect to remedies that we haven't alreadytouched on. No, anyone, Okay,
but thank you. That's and Ithink you make an excellent point that

(01:31:55):
we have all sorts of examples fromsometimes recent history to about how these things
play out. We don't need towatch Black Mirror necessarily. Could I just
say one very quick thing in response, not not so much about the remedies,
but about the experience of the SovietUnion. I recently my wife is
Armenian and we spent the summer oftwenty two in Armenia, and there I

(01:32:17):
got to know a member of theSupreme Court who had grown up in the
sort of echo of Soviet Armenia.And it was remarkable talking to him because
no one I have ever met before, he had never been to the United
States. I have never met anyonebefore who caught on to what was happening

(01:32:39):
ideologically and politically, particularly with thewoke movement in the United States. It
was remarkable to see, and itwas remarkable because he understood all the moves
on the chessboard instinctively from the Sovietexperience. We really, you know,
we feel like the Cold War isa thing of the past, or like
the lesson of the Cold War,or is the lesson of a free economy

(01:33:01):
versus a state controlled economy. Butthere is a social history of how a
pervasive ideology becomes a class ideology anddominates every facet of life, which is
part of the story of the Sovietexperience that we need to reabsorb to understand
what's happening. There's a book bya friend of mine named Rodrira called Live

(01:33:21):
Not by Lies, that is interviewswith people who used to live behind their
iron curtain commenting on sort of whatthey see happening. It's a very interesting
book. Yes, ma'am, Iwanted to ask you this first, a
difficult question because even John Stuart Milldoes envisage a limit to freedom of speech.

(01:33:42):
And the question, the difficult question, which I think, is how
should we now define should there beany limits to freedom of speech, and
what exactly should they be. Forexample, to me, a limit on
the freedom of speech now, aserious limit is the freedom of certain people

(01:34:03):
not to be offended. And theyseem to spend their entire lives being offended.
So that's an important question I thinkwhen we're looking at these issues.
Another point, and quite a differentpoint I would like to make. I
take entirely what you were saying aboutself censorship and other means of censorship.

(01:34:24):
I think for those of us whoare perhaps freer from constraints, it is
more important than ever for us toresist all such forms of censorship, to
have the courage to speak up.And in speaking up, don't forget that
humor is a very powerful weapon,and that's the one that we should use.

(01:34:47):
Well, very well said, verywell said. And you know,
I let me just take a privilegeand then we'll hear from Robert. I
speak to student groups and sometimes youngsometimes high school kids about free speech all
the time. For some reason,I get asked to speak about free speech
a lot. I have no ideawhy, but I tell them we have
well defined categories of free speech inAmerican jurisprudence. And I tell them what

(01:35:11):
they are, fighting words and truethreats and all these things. And I
asked them, how many of youthink that we can criminalize hate speech?
And half of them, and theseare smart kids, half of them raise
their hands and say, oh,yeah, hate speech sounds terrible. Surely
five years in the slammer for hatespeech. And I say, my friends,
you have a federal judge sitting infront of you. There is no
such thing as a legal category ofhate speech. And they're shocked, and

(01:35:36):
they probably go home and tell theirparents that this mean guy came and said
there's no such thing as hate.But of course I'm not saying that.
I'm saying there's no legal category ofhate speech, at least not right now.
It's a very important point, andit's amazing to me that people don't
understand that. Last shot. Sothis goes to my friend, Professor Kleinfeld's
story. Imagine I go out andsay something that offends somebody in people will

(01:36:00):
don't like it. Shocker in mycase for those of you who know me.
The government responds by coming and arrestingme. We all agree that violates
my right to free speech. Myneighbor responds by saying, well, I'm
not gonna invite that guy Miller over. Ever. Again, no one thinks
that violates my right to freeze.Only the best judge, only the best.

(01:36:24):
Now consider two intermediate cases. Mybaker responds by saying, I'm never
gonna bake another cake for that guy, no matter what right. That's the
masterpiece cake masterpiece cake case. Lotsof people thought that baker should be permitted
to not bake the cake for mebecause I can buy a cake somewhere else.

(01:36:44):
The bakery industry is competitive. WhatFry's Professor Kleinfeld's examples is that at
each step there's either a company withmonopoly power who shuts you out, or
there's a cartel that forms, suchas the cartel collectively has monopoly power and
shuts you out. Isn't the theorywe need just come back to. We
don't like monopoly power. Whether itexists in one company or in a quartel.

(01:37:10):
Let me tell an old libertarian hypotheticalfrom back in the days when I
was in law school, and thatis, and you'll see my example kind
of dates it. That is,supposing, in a libertarian world that the
entire state of New York came tobe owned by the Rockefeller family and the
entire state of Massachusetts came to beowned by the Kennedy family. Would everything?

(01:37:33):
Could they do whatever they wanted?Would that solve all the problems because
these are now privately owned And theanswer from this hypothetical is that no,
the problems would all be the same. It wouldn't matter that they were privately
owned, because they would have allthe same power that the state would have.
But even worse, all of ourconstraints that we have now built up

(01:37:55):
to limit state power would not beapplicable to the Rockefeller family and be applicable
to the Kennedy family, So wewould be worse off. And in some
respects, I think what we're witnessingnow is a workaround the constraints that have
been erected to protect us from governmentabuse. And it's a work around by
people who want to limit our freedom, and they do so by means that

(01:38:18):
work around the constraints that currently exist, by exerting, by engaging, and
by employing concentrated power that is notgovernmental, and therefore they do the work.
I think it's fitting that we inthis panel that means censoring Randy,
and I want everyone to join mein thanking this wonderful panel for the scat

(01:38:47):
pains me so much to get upon stage and so this conversation down.
We have five minutes and we willbegin our next panel, the last panel
of the day. Will take aquick five minutes to replace the panelists and
start again. Thank you. M. M.

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2024 Freedom of Thought Conference: Panel 3 - Securing the Rights of a Free People

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}2024 Freedom of Thought Conference: Panel 3 - Securing the Rights of a Free People