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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast where every other week take an uncensored look at the world of free expression through personal stories and candid conversation. I am, as always, your host Nico Perrino. Today I am here with Ilya Shapiro. Ilya is a senior fellow and the director of constitutional studies at the Manhattan Institute. He previously served as vice president at the Cato Institute and as the director of its Center for Constitutional Studies. He is the author of “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. “And he has a new book that just came out titled “Lawless: The Miseducation of America’s Elites.”

This is the book we’re going to be talking about today. At the end of the conversation we might get into some current events. Ilya, welcome to the show. It’s been, what, three years since the incident at Georgetown?

Ilya Shapiro: Three years coming up on the infamous tweet and I guess four years or so, four and a half since we recorded something about my last book. So, I appreciate this time actually being in person, in studio, not just Zooming everywhere. I appreciate, more generally, we can get into this as I certainly cover it in the book, ��ݮ��ƵAPP����’s friendship and allyship as they say and for giving me at least a master’s if not a doctorate in crisis management during those four days of hell as I describe the initial launch of what put me on this path of writing the book.

Nico Perrino: Yeah, so take us back to that time. You were gearing up for a big professional transition. You were going to start a new job at Georgetown. You’re on a trip to visit some friends, about to put your head on your pillow. This is the time where there is going to be a change at the Supreme Court. You decide to tweet about it. What’d you say?

Ilya Shapiro: Yeah. So, I’d been at the Cato Institute for nearly 15 years. Got an opportunity to take my career in a different direction, to become the executive director of Georgetown’s Center for the Constitution under Randy Barnett.

And that’s an important center because as we’ve learned, the rest of the law school is a center against the Constitution. A few days before I was due to start that job was when news of Justice Breyer’s retirement broke. This is in my wheelhouse. My last book, “Supreme Disorder” was about the politics of Supreme Court nominations and all that. So, I was doing media all day while in Austin, Texas. Some business meetings, a friend’s celebration of his job transition.

And then as you said, came back to my hotel room and was getting more and more upset that Joe Biden was hewing to his campaign promise to appoint a Black woman to succeed Breyer. Not because a Black woman couldn’t be on the Supreme Court, of course, but because you shouldn’t restrict your candidate pool, whether for janitor or Supreme Court justice based on race and sex. So, not a best practice. I was doom scrolling Twitter, getting more and more upset. And fired off a hot take, as you said before going to bed saying if I was Biden, I would pick the chief judge of the DC Circuit, the second highest court in the land.

Sri Srinivasan happens to be an Indian American immigrant, very well respected progressive, all the things. But because of today’s hierarchy of intersectionality, we would end up with a lesser Black woman, by which I meant less qualified, the basic logic. If I have someone in mind as the best person, then everyone else in the universe is less qualified.

Nico Perrino: And this was the time before you could have a super long tweet. Elon Musk had not purchased Twitter yet. You couldn’t have a book length tweet. You were still whatever the character limitation –

Ilya Shapiro: Absolutely. There were other grammatical errors and awkwardness in that Tweet. Anyway, that’s how it came out. So, I fired that off and went to bed. And overnight all hell broke loose. My ideological enemies went for my head, went for my job because, of course, if I had just been at Cato tweeting this or now at the Manhattan Institute, I don’t think anything would have really happened.

But I was trying to go onto their turf, onto the left’s turf at Georgetown Academia. And away we went. Protest on le mob, protest letter writing campaign. I survived thanks to ��ݮ��ƵAPP���� and many other friends, Kmele Foster, Bari Wise, National Review, Wall Street Journal all these folks coming out publicly and privately behind the scenes to try to push at the dean, the lone decision maker. So, I wasn’t fired the first 24, 48 hours. It was hellish. It was my four days of hell. Ultimately, I was onboarded but immediately suspended pending investigation on whether I violated the university’s harassment and anti-discrimination policies.

Nico Perrino: What was the first thing you heard from the university?

Ilya Shapiro: Well, the next morning I woke up and I saw that this thing had taken off and not in a good way and was being willfully misinterpreted as saying I was racist and sexist and all these things.

I thought oh no, this is not good. So, I took it down and I said –

Nico Perrino: Do you regret doing that?

Ilya Shapiro: No, no. The question should you have apologized, all that, I wrote that up for the City Journal, MI’s –

Nico Perrino: I think we advised you not to apologize.

Ilya Shapiro: You did, you did. You advised me to not do any of that. I came out with a very limited apology in the sense that I wasn’t going to say sorry I’m racist, I need to do the work and educate myself, none of that. I just said look, this was a failure of communication. It’s become a distraction to my underlying point that you should have merit based, not race based hiring and all that. So, I took it down and that was it. I very quickly had a phone call with Randy Barnett who hired me. I said we need to get ahead of this. Eventually the dean, I think around lunchtime that day, issued a statement calling my words appalling and all of this.

He didn’t know what to do. Not exactly a profile in courage, Bill Treanor. He neither fired me right away or rescinded my contract, nor upheld my speech rights. He could have said, “I don’t agree with this. This is not good. Ilya needs to be a better communicator. But clearly protected by our speech and expression policy.” He could have done that.

Nico Perrino: And it probably would have ended. Maybe not that day or the next day, but it would have ended.

Ilya Shapiro: Yup.

Nico Perrino: That’s what we’ve seen in the past at least.

Ilya Shapiro: In the end, I ended up Zooming with him that Sunday night. This is another surreal overlay to all of this was COVID mania was still in full effect at Georgetown, so I never met with either Dean Treanor, the DEI Office or Human Resources that were investigating me in person because then we’d all have to be wearing masks. So, it was kind of eyeroll. But anyway, when I Zoomed with the dean that Sunday night, he was like a deer in headlights. He kind of showed up, looked like clearly he hadn’t been sleeping.

This was a big scandal in his world. I said some opening lines then I said, “So, where do we go from here?” It was like, “Well, where should we go from here?” I’m like, “Well, Dean, your policy is pretty clear. I’ve said,” again not taking ��ݮ��ƵAPP����’s advice, I did say sorry for the tweet, it was unartfully phrased. What I meant was clear. 76% of Americans agreed that Biden should have considered all possible candidates, at least according to that rabid right-wing news source ABC News.

And I said, “Dean, say what you want about not agreeing with me or whatever, but this seems pretty clear cut.” He didn’t do that. He punted, punted to the DEI and HR offices. And away we went with this weird investigation, which very quickly became clear was not an investigation, but just kind of an inquisition in some sorts when I had the Zoom with the DEI office that Georgetown called the Office of Institutional Diversity, Equity, and Affirmative Action, IDEA.

We had this Zoom, and they just kept asking me, “What did you mean by the tweet? Do you understand why it’s offensive? What was the context again?” They kept asking me again – and it was like it was so banal. And they weren’t lawyers. I didn’t feel like pressured or gotcha. After a while, soon after that, my lawyer was like, which ��ݮ��ƵAPP���� helped me out with, Jesse Bernard set me up through ��ݮ��ƵAPP����’s network. He was like, “Look, do your job. Go back to commenting on the Supreme Court. Go back to tweeting, whatever. Don’t criticize Georgetown or comment on the investigation, but do your job, especially now.”

By that point Justice Jackson was nominated, her hearings were happening, all of this. He was like, “Do your job. Write about it, speak about it, do your job.” The longer it went it became clear that this was not some meaningful – there was nothing to investigate. They could have given it to a junior law professor there to look at the short facts, the tweet, the very short policies at issue, and apply law to facts and that’s that, but no.

Nico Perrino: Instead they brought in a high-powered white shoe law firm.

Ilya Shapiro: I imagine they spent like a million bucks on this thing.

Nico Perrino: Really?

Ilya Shapiro: Wilmer Hale. They had several people there, the head of their – very high powered. At the end of which, four months later, once the students were off campus, surprise, surprise, to get it away from controversy, they had a junior associate look at a calendar and determine oh, Ilya wasn’t employed by Georgetown when he tweeted, so none of these policies even apply. The good old jurisdictional nit. So, I was reinstated.

I celebrated that technical victory, but then I got the fine print, this long report from the IDEA office, which I reprint for the first time ever in full in my book with some annotations and comments about it. Which made clear that anytime that I said or wrote something that would offend someone, that would create a hostile educational environment and I’d be back in the star chamber. So, I realized over that weekend in June, I was reinstated on June 2, on June 6 I resigned.

Over that weekend I put together probably my best ever legal work, my resignation letter, which is available on ��ݮ��ƵAPP����’s website, thanks for hosting that. I know a lot of reporters have gone there to look at it. A summary of that I published at the Wall Street Journal, as one does. And then the next day announced my move to the Manhattan Institute on Tucker Carlson’s show on Fox, again as one does. Since then I’ve been using that platform, which I was not seeking, which I’ve been given to shine a light on the rot in higher education.

Nico Perrino: I should note why ��ݮ��ƵAPP���� doesn’t advocate for apologies. In some cases, you might feel like the apology is warranted. Like you really, truly feel bad for what you said or what you did. But it doesn’t, in the end, help with the disciplinary process, or with the fight in the court of public opinion because in many cases these are witch hunts. And apologizing just self identifies you as a witch to the mob and doesn’t put them at bay.

We’ve never seen a controversy end because someone apologized. It just throws more gasoline on the fire.

Ilya Shapiro: Just to give a praise of why I did issue that limited apology, it was because I didn’t care about the Twitter mob, they are not my audience. I didn’t care about anybody who was criticizing me. I had an audience of one, Dean Treanor. And I was strongly advised that it would help not get me fired in those first 24, 48 hours if I simply said, “Yeah, this was bad wording. I need to take it down.” And that’s how I felt. It was an error in hot take Twittery. Who among us hasn’t done that?

Nico Perrino: People wouldn’t even blink at it today, I don’t think.

Ilya Shapiro: Right. I think there’s been a vibe shift, as we all say. But I wrote this up in detail in the City Journal, I think in their spring issue last year. You set the goal, what is your goal? Is it to become a martyr and monetize? Is it to become some sort of free speech hero? Is it to get in good graces with X, Y, Z? My goal was to keep my job, period, this new job that I was transitioning to.

Nico Perrino: I can say that was honestly your goal, going through these four months. We were in constant communication, and you wanted your job.

Ilya Shapiro: That’s right. I went to Georgetown for a reason. I could have stayed at Cato. I could have done any number of things. I eventually got a great offer from MI. For that matter, had I just wanted a payout, I could have asked my lawyer in month two of the purgatory, the so-called investigation, let’s get a settlement. Here’s the number I need to go away. I’m sure there was a number like that for Georgetown as well. But we never started those kinds of discussions because, again, I was just, this needs to be vindicated, I need to see this through. Anyway, in light of that goal, this was not trying to placate.

I agree with what you said about the general thing about don’t apologize. Or like right now, as we’re recording this, an embroglio about Elon Musk, did he give a nazi salute? It’s all bullshit. So, he shouldn’t be explaining himself or apologizing because who would he be apologizing to? There’s no Dean Treanor that’s the decisionmaker or whatever. But in my case, I still feel what I did – I don’t think in terms of process, I look back, I don’t think there’s anything that I could have done differently.

Nico Perrino: Amidst all of this, you’re going out, you’re still speaking, you’re still writing, and you have another experience at a different law school. And your book is about the unraveling of law schools, essentially. And you’re at California Hastings College of Law, I believe on March 1, to give a talk that you ultimately were not able to give. You stood there for what, an hour?

Ilya Shapiro: An hour.

Nico Perrino: As you were essentially just yelled at, right?

Ilya Shapiro: Yes. It was like an Occupy Wall Street Rally. There was chanting and banging and all these things. Signs, I don’t mind. They were holding signs in the back, which was fine. Signs weren’t actually blocking people’s view. There’d been other disruptions where people hold up signs out front between the speaker and the audience. That wasn’t the case. It was the chanting, the banging. Sometimes the chanting started to die down and I would try to speak half a sentence, and it would pick back up again. The topic was the subject of my last book, Supreme Court politics.

At this point there was a nominee a month later after my tweet. And there was a professor there to comment. He eventually egged on the mob when I briefly stepped out to discuss with a Federalist Society officers who invited me what we should do. I told them, “Look, you paid for me to be here for an hour. I’m going to be here for an hour.” This was the same month, by the way, that Yale had a speaker shut down, ironically with lawyers of the left and the right who agree on little other than the importance of free speech.

Then it happened at the University of Michigan. This didn’t get national media because for some reason nobody was live tweeting out that one. So, it was a real problem that spring of 2022. I’m actually coming back to what used to be called Hastings, it’s since been renamed. It’s now UC Law SF. I’ll be back there next month, in February. This is three years later, so completely different cohort of students. What is that, Dazed and Confused, I get older, they stay the same age. So, we’ll see what happens.

Nico Perrino: What was the university’s response or college’s response in that situation? Was it a Dean Treanor response?

Ilya Shapiro: So, there were a couple of deans that showed up. First there was the dean of students who was kind of a diminutive Asian American lady, and nobody listened to her. One of the small ironies of –

Nico Perrino: She was trying to –

Ilya Shapiro: She was trying to get them to calm down and to tell them our policy does not allow this kind of disruption.

And they just spoke over her, they chanted, it had no effect whatsoever. Then a tall White man, basically the deputy dean, the head of academics, Morris Ratner I believe is his name, came up and read them the riot act and they quieted down for that at least. That is they let him speak and to say what the university’s policy was, what the law school’s policy was, that is you can’t disrupt. You can have your signs, you can ask questions, you cannot disrupt. Very standard stuff from ��ݮ��ƵAPP����’s perspective. I just saw ��ݮ��ƵAPP���� tweet out this morning about the Columbia disruption of the class yesterday. This is –

Nico Perrino: Israel, yeah.

Ilya Shapiro: This is not exercising your First Amendment rights. You don’t have a First Amendment right to disrupt student programs and classes. Very basic stuff. Anyway, he reiterated that policy. Then he went away. I came back up to the podium and they continued chanting and banging.

And then the next day there was an email from the chancellor. This is a stand-alone law school, so the chancellor was effectively the head dean, reiterating what the policy was and that there’d be an investigation about things and these rules, both in favor of free speech and against the disruption would be enforced, but they weren’t enforced. About a month later there was a further dean memo, 20 pages of basically nothing.

Nico Perrino: Yeah, behavior that gets rewarded gets repeated. When you have these disruptions and nobody gets punished, you’re incentivizing it happening again. Unfortunately, that’s what we see far too often in these shout downs. But we’ll see if college administrators start to grow a spine as they seem to have political cover and they don’t have the X mobs coming after them the same way they used to.

Ilya Shapiro: Well look, that publicity, nobody enjoyed. These deans are generally not woke radicals or social justice warriors.

They’re careerist bureaucrats. And so, they shy away from bad publicity or donors making noise or what have you. So, a few weeks later, I mentioned the University of Michigan, after there was a disruption of Jonathan Mitchell, who had been one of the authors of the Texas heartbeat bill, this was back before Dobbs, now seems like years ago.

Nico Perrino: It does.

Ilya Shapiro: Again, that didn’t make news because nobody was live tweeting or whatever. But the following week I was due to speak at Michigan. And the deans apparently sat down the heads of all the student organizations and said we are not going to be Yale and Hastings. Now here are our rules. If you do something, there will be – they read them the riot act. And the following week when I showed up, and they changed my topic to discuss model civil disagreement with a professor they brought in from Northwestern. Their DEI dean even stood up and said – not the – I guess their dean of students stood up –

Nico Perrino: I hate when they do that though. Let’s have this milk toast conversation because we can’t have a real substantive one.

Ilya Shapiro: We weren’t having a meta conversation about the importance of having conversations. We actually did discuss certain things. Andy Koppelman was the other professor. And he opened with, “You know, Ilya’s said much worse things than that tweet. I mean, come on, did you see what he wrote during the Obamacare litigation? He wants kids to work in mines and things like that.” So, it went off about this. It became much more of a typical left/right thing, rather than this post-modern thing about what speech is and what your privilege is and what happened to Judge Kyle Duncan a year latter at Stanford with is your juice worth the squeeze and all of these harms.

So, anyway, this is fixable. It’s not rocket science. We don’t need to theorize whole new approaches to public policy to deal with these issues.

Nico Perrino: Yeah. During that shout down at Hastings, you decided to stand up there for an hour and essentially just take the hate. Why did you decide to do that? Most speakers are just going to leave the podium?

Ilya Shapiro: I was bemused. It might have been a – We were all wearing masks again. There was still that. I was kind of smiling or smirking behind a mask. And I never really felt physically threatened. At certain points, they did literally get right in my face without touching it and blocking access to the podium and things like that. But I never felt physically in danger. So, I’m like okay, if I’m not feeling physically endangered, if this doesn’t seem on the brink of a huge melee or something, I’m just going to see what happens, whether I can speak. Literally, as I told the students who invited me, you’re paying for me to be here for an hour. If they let me speak for five minutes, I’ll speak for five minutes. If they don’t let me speak at all, well that’s too bad. I’m just going to, you paid for my time, I’m going to be here.

Nico Perrino: Before we look at the challenges of law schools today, let’s zoom out and get your story. Why did you decide to go into law?

Ilya Shapiro: So, I was born in the Soviet Union in Moscow. And my parents got me out just as soon as they could. I was four when we came to Canada. So, I grew up in and around Toronto. And always was interested in legal political institutions, which is kind of a nerdy and precocious thing, but there it is. I was also into sports. It wasn’t just a one-track thing.

Nico Perrino: Did it have anything to do with the family history?

Ilya Shapiro: Yes, absolutely. My parents taught me that communism was bad. And the family history with my dad’s dad being arrested by Stalin’s secret police. Then he and his mom were exiled to Siberia. All of these sorts of things that are not atypical of the Soviet period and especially of Soviet Jewry. So, the way that we were able to get out was Brezhnev was letting Jews go to Israel in the late ‘70s, early ‘80s and we got a visa that way. Didn’t end up going to Israel, ended up going to Canada, the first country that gave us a visa. So, growing up, I had this interest in why some countries are good, some are bad, governments, all these kind, as my understanding grew.

And also very early on, I began to prefer life, liberty, and pursuit of happiness to peace, order, and good government, which is the Canadian equivalent. So, I also, one of the chips on my shoulder growing up for many years was that I was an American, that we took a wrong turn at the St. Lawrence Seaway for all sorts of ideological reasons as well as meteorological ones I suppose as well.

Nico Perrino: Did your parents feel the same way about America?

Ilya Shapiro: Eventually yes because they had some hardships growing their careers. And there definitely would have been more economic opportunity for them in the US. They were both material scientists, chemical engineers working on piezoelectric ceramics and superconductors and things like that. They both got jobs at a defense contractor in Ontario. But they definitely would have had more opportunities in the US I think. So, I got to the US as soon as I could. It's a separate discussion about the immigration system, but it was pretty much harder to get a green card than to come from the Soviet Union to Canada.

I ended up getting the green card only in 2009, long after college and law school, which was in the US, and became a citizen 10 years ago now.

Nico Perrino: But why law?

Ilya Shapiro: Yeah. So, I think by the time I got to college –

Nico Perrino: And where’d you go to college?

Ilya Shapiro: Princeton. My parents fairly early on in high school, even though I was good at math and science, I told my parents this isn’t where my passion is. I think I’m really more into reading and writing and the history’s really exciting, and I don’t know what that means. Lawyers seem to do interesting things. I liked LA Law and its Canadian equivalent and that sort of thing. I recognize that’s not reality but anyway. They were like, “Yeah, that’s why we brought you to this country, so you could be whatever you want. Just realize we can’t help you with your homework anymore.” That’s okay, I got it, I got it.

So, when I got to college, I was pretty sure I was going to end up going to law school. And that’s what I did at the University of Chicago with a year in between to get a master’s at the LSC.

I studied beer, theater, and rugby. I think they gave me a degree in international relations for travelling around Europe while I was there, good experience. And then came to the University of Chicago for law school. It was an intellectual delight. Still didn’t know what I wanted to do or what kind of lawyer I wanted to be. Had never heard of any big law firms. Didn’t know there was such a thing as clerkships. I ended up clerking for a 5th Circuit judge, which was amazing. The way that I look at the law, the way that I organize my own team, very much like Judge Jolly in Jackson, Mississippi did.

I wrote my undergraduate thesis comparing constitutional development in Russia and Argentina, because I spoke Russian and Spanish and got funding to visit places and talk to constitutional lawyers and stuff. The ways societies organize themselves, how to promote and preserve freedom. Those were kind of core things with me very early on.

Nico Perrino: It seems like you liked your experience at University of Chicago.

Ilya Shapiro: It was great. It was great. I was actually just talking to their development office this morning, they reached out.

I’ve been a donor for a while. Every five years I’m on my class reunion committee and things like that. As I detail in my book, University of Chicago, certainly among the so-called elite schools, has been the exception in not bathing itself in mud over the last recent years. It’s kind of a low bar, but they’re doing something right.

Nico Perrino: So, what do you see as the major problem with law schools today, that have them bathing in mud?

Ilya Shapiro: So, it’s a microcosm of our broader crisis in higher education, which came to the national fore I think after October 7, after Hamas’ attack on Israel, and then the disastrous testimony at the university presidents. Where it became clear that something is fundamentally wrong and public confidence in higher education, especially in the Ivys and the so-called elite places really plummeted. Antisemitism, as Bill Ackman, the Harvard donor, billionaire would write the same day as it happens that Claudine Gay resigned the Harvard presidency, antisemitism is the canary in the coal mine.

That wherever it flares up historically is an indication of pathologies underneath. Here that’s everything from academic corruption, moral relativism, a shift from education to activism, an abandonment of the core mission of any university to seek knowledge and provide a space for open inquiry and civil discourse, all of these sorts of things. Ironic that the heart of antisemitism in our country is in the most progressive educated places as it were. In law schools, the reason why I focus on law schools in the book is because that’s, of course, my professional background and my experience at Georgetown, what have you, but also, while it’s sad when departments of English or sociology or what have you go off the rails and unfortunate for the development of human knowledge, there are much more practical consequences with law schools.

Because after all, they churn out the next generation of our institutional leaders, the gatekeepers of our political and legal structures. The lawyers are disproportionately represented among elites of all kinds, and especially political governing elites, as well as C-suites in corporate America as well as, obviously, prosecutors and so forth. So, if they are being taught or acculturated in a way that there is no objective truth, legal institutions are illegitimate and need to be reworked, it’s inappropriate to consider certain sides of particular issues, this goes against all professional norms. And really threatens, I don’t want to, with no exaggeration, threatens the pillars or the rules of the game on which our whole society is based.

Nico Perrino: So, you think it’s an ideological problem, largely?

Ilya Shapiro: No. And I want to be clear about this. There is a perversion of ideology, that is the critical theory coming back with a vengeance. When I was in law school in the early 2000s, critical legal studies, critical theory of various kinds, we thought that was some niche, weird philosophy from the ‘80s and early ‘90s that had been relegated to sociology departments. But then it came back, about 10 years ago, 10 to 15 years ago, with a vengeance. So, that is a problem in terms of the teaching side and how not just the Constitution has problems with it, or civil rights laws enforce institutional racism or what have you, but securities law, water regulations, the entire legal edifice is problematic ideologically. Yes, that is a big problem.

Nico Perrino: Because I hear people say that it’s a big problem about what they choose to teach and what they choose not to teach, for example. Right now you have five justices on the Supreme Court who support originalism or a form of it. But you’re not getting taught how to be an advocate in the originalist mold within law schools.

To me that seems to be ideological because why wouldn’t you want your students to understand one of the main –

Ilya Shapiro: That’s right, they don’t have to agree with it. It’s not preaching originalism. It’s being able to understand it so you can be a better advocate for your side. Yeah, you’re right, they’re failing that basic task of training lawyers. It’s a professional school, after all. They’re failing in that task.

Nico Perrino: So, that seems ideological to me. And then it seems the speech suppression that you experienced, whether it’s at Hastings or at Georgetown also seems motivated by ideology.

Ilya Shapiro: Those are symptoms. I want to make clear that yes, there is that ideological failing and that this radical illiberalism is something different than kind of traditional debates between originalism and living Constitution or different ways of looking at the law. This is not, Nico, the latest iteration of the decades old conservative complaint about hippies taking over the faculty lounge. In fact, those hippies, the Berkeley free speech movement in the ‘60s, would now be by these radicals considered retrograde White supremacists.

Because speech, well that’s – your rights depend on where you are in the intersectional matrix or what have you. Anyway, so –

Nico Perrino: That’s why people like Nadine Strossen came to your defense during the situation at Georgetown. You have these old school liberals who are almost aghast at –

Ilya Shapiro: A couple years ago there was some baby boomer history professor, I believe, who had – a liberal, card-carrying member of the ACLU and all these sorts of things, wrote in the Wall Street Journal how he was afraid of his students. So, yeah, ideology is definitely a part of it. But that’s only the basic thing. Everybody talks about that, that’s a well-known story. The bureaucracy I cover a fair bit is astonishing. The idea, this started probably when you or I were in school, the growth of non-teaching staff. And it started as kind of student support things.

Greg Lukianoff has written about safetyism and cognitive behavioral therapy, kind of coming in through the dean of student’s office and that sort of thing. It’s a negative effect to be sure. And then that exploded, especially in the last 10, 12 years largely in the DEI space. So, you have these bureaucracies, these non-teaching staff who are even more to the left than the faculty. And not acculturated in norms of academic freedom or free inquiry. And they become the tail that wags the dog. With more non-teaching staff than faculty, whether you’re talking about university –

Nico Perrino: And they all need something to do.

Ilya Shapiro: And they all – As Mancer Olson, the great political economist, talked about the growth of bureaucracies leading to the decline of nations, so just as in the public sector with bureaucracies there, I call this the educrats, the educational bureaucrats, their incentive is to grow their authority and their budgets to manufacture wrongs that they can then investigate, things like that.

So, that bureaucratic side is hugely important. And then the leadership bit. None of this would go forward if deans, provosts, presidents didn’t allow it to happen. Because university officials, these leaders are good at instilling whatever cultures they want, public service, entrepreneurship, social justice, whatever they want. They could maintain a culture of free speech and open inquiry and whatever else. These basic classical liberal values of due process, equality under the law in the context of law schools. And yet they don’t. That is another side of the institutional failure.

Nico Perrino: You talk about the shout down at Stanford in your book. This is Judge Duncan of the 5th Circuit is set to give a talk at Stanford Law School. It is one of these bureaucrats, one of these DEI deans who comes to try and quiet down the students.

But in the process of doing so, throws gasoline on the fire, criticizes Judge Duncan, essentially asks him why are you here.

Ilya Shapiro: With prepared remarks, mind you.

Nico Perrino: With prepared remarks. Yeah, so she was prepared to come here and more or less take over his speech. I think her remarks were something like eight minutes. It wasn’t just coming and reading the riot act to the students. It was coming, editorializing, not just on what Judge Duncan had to say, but the mere invitation to him, the fact that students wanted to hear from him. He’s a 5th Circuit judge, he’s a powerful guy.

Ilya Shapiro: And he was about to talk about how lower courts adjudicate cases in areas of uncertainty over COVID or what have you when the Supreme Court hasn’t ruled. Something you would think people come to, become students at Stanford Law to learn.

Nico Perrino: What did you make of the decision by some judges in the wake of that, and I think also the shout down at Yale, to decide there are just certain law schools we’re not going to take clerks from?

Ilya Shapiro: Which was then expanded to Columbia after their failed response to the antisemitic encampments and disruptions and all that. Yeah, I support that. Jim Ho, the 5th Circuit judge is a friend of mine. He came to my defense, as well, at Georgetown. Gave a talk, kind of dramatically ripped up his prepared remarks and defended me. I was on a plane when this was going on. I landed and had all these texts and emails from reporters asking for comment. I just said Jim Ho’s a mensch. And Lisa Branch from the 11th Circuit. I think they’re the only ones who publicly put their name on the boycott joined by a dozen district judges.

Nico Perrino: Is that still going on, do you know?

Ilya Shapiro: As far as I know. I talked to Jim recently. He said that Yale alums have come to him and said keep it going. Just because Heather Gerken has hired Keith Whittington and then a junior professor, Jared West, who had clerked for Alito and done certain other things, that’s not enough. That means that she’s paying attention, but we need to keep going. I support that because, first of all, it’s prospective, that is when he announced the boycott, the students that were already at Yale, they weren’t affected by it.

And how else are you going to get their attention? It’s kind of like in the civil rights era, if a dean announced policies that were still discriminatory against Blacks would it have been improper for a judge to say, “Well, okay, I’m not going to hire from that school?” Yeah, that would have harmed some kids who might disagree with the dean’s policy. Then don’t go to that school. That’s ultimately the impact that I think that it’s having.

Nico Perrino: Do you tell students to go to law school today if they ask you?

Ilya Shapiro: No. No. And not because – my tune on that hasn’t really changed with my so-called lived experience or this book or what have you. I think for too long young people, very talented young people in this country have gone to law school as a default. They don’t know what they want to do with their lives. They’ve taken the LSAT just in case, just to see how they do, and they do well.

And they’re like, “Oh, well maybe I should then be a lawyer.”

Nico Perrino: Is that different from your situation? You were interested in the world of ideas.

Ilya Shapiro: I knew I was interested in studying the law intellectually. I didn’t know what I wanted to do with that. I still don’t. I still joke that I don’t know what I want to be when I grow up. I partly had issues with my immigration status, so I couldn’t become a journalist because that’s kind of more unstable. Couldn’t have gotten a work visa or a NAFTA visa or things – so, I had personal little things there with that. I knew I wanted to study the law and have some sort of career that hopefully would encompass the academic, legal, and political, and media worlds. I didn’t realize that would be a job at think tanks where you kind of do all those things at the same time. I thought it would mean teaching a little bit, then going into the government, then going into whatever, being at a firm, whatever.

Nico Perrino: But when you’re advising students about whether to go to law school –

Ilya Shapiro: I liken it to converting to Judaism. So, you come up and you ask the rabbi, and he says no, no, no. And if you’re persistent enough, well maybe there is some reason there, let’s talk about this. Because so many people, like I said, they just go there because it’s prestigious. Lawyers both make a lot of money and it’s kind of a good reputation, all this. Maybe this is what I should do. I don’t know what I want – I majored in history, I don’t want to be a history professor. I don’t know what else I would do, right?

And I said, no, you have to have a good reason. Answer the question: what kind of lawyer do you want to be? What kind of law do you want to practice? Now, there are more opportunities these days than when I was coming out of law school 20 years ago to be a constitutional lawyer, to do public interest stuff, things like that. But still, it is not the right move for most people. Once we get past that stage about should you go to law school, then we can talk about which law schools, how do you approach it, how do you prepare, all of those certain things. I’ve had the opportunity, the privilege, the pleasure to interact with a lot of bright young people.

Gosh, young people. I still think of myself as young. I go to college campuses, I’m like why are these middle schoolers in college all the time. Yeah, it’s not the right answer for most people. But if you’re focused and you have a good head on your shoulder and you have – Again, goal setting, so important. Don’t know how you’re going to get there but set the right goal and it might work out.

Nico Perrino: You write in your book that some of the challenges that are seen in law schools have graduated, so to speak, into the real world. You write, “The Overton window shift we’ve seen in law schools has graduated into the real world.” You write that, “Law firm partners cower in fear of their associates who question their firm’s representation of certain types of clients and demand that statements be made.” You suggest or state outright that the American Bar Association has become captured, ideological, is trying to shape the way that law schools teach.

Ilya Shapiro: It ratified Biden’s deeming the Equal Rights Amendment to be part of the Constitution. I mean, come on. As did Georgetown, by the way. Those were the two major institutions I saw on Twitter, at least, that said good things about this just willing a Constitutional amendment into effect.

Nico Perrino: Have you heard from people, or do you hear often from people outside of legal academia about the challenges that they’ve seen at the law firms that they practice at?

Ilya Shapiro: Yes.

Nico Perrino: Whether in their professional institutions. What are they saying?

Ilya Shapiro: That they have to bite their tongue. That they’re not allowed to take on certain clients, whether pro bono or even paying sometimes, oil companies for example, politically incorrect. That even as their counterparts on the left can take lots of controversial positions, they’re not allowed to in various ways. I mentioned the story of a friend in my book who was at a big firm.

After Dobbs, the overturning of Roe v. Wade, she declined to take on abortion rights litigation citing I’m too busy, what have you, not making a political stink over it. Finally, the managing partner called her in and said, “Oh, I bet you’re pro-life. What a waste of a female equity partner.” So, she got a nice settlement out of that and started her own firm. That is not atypical. The stories that make national news are evocative of a much bigger problem.

So, Paul Clement, possibly the best lawyer in the country, best Supreme Court advocate, had to leave his firm because they wanted him to fire his client because he’d won a Second Amendment case at the Supreme Court. Even though when he went to Kirkland, he and his colleague Erin Murphy negotiated that they could keep their clients, and this precise scenario would not happen. Because it had already happened to them at their previous big law firm.

Nico Perrino: Is this still going on amidst the vibe shift?

Ilya Shapiro: Unclear. Again, we have a vibe shift, we’re in the eye of the storm. In corporate America, apparently, there are some changes. And we saw some developments where Netflix was not going to be bullied into taking down Dave Chappelle, things like that, State Farm. In corporate America, there have been examples of the pendulum swinging back. At law firms, I think it’s going to take longer because they are more left wing on average than your average corporate CEO who is kind of doing things based on what they think their financial advantage is at any given time.

Nico Perrino: Let’s steelman it a little bit. What’s the problem with law firms doing this? What’s the problem for the legal profession with law firms that are particularly ideological in this way?

Ilya Shapiro: It’s the same as law firms in the ‘50s and ‘60s who said, “We’d love to hire more Black lawyers, but our clients won’t stand for it.” It’s just morally wrong.

And it is a detriment to our society that politically incorrect clients can’t get representation. Whether you’re talking about some individual who has been improperly railroaded by a politicized prosecution or oil companies or gun manufacturers. This undermines the basic corporate governance of our capitalist economy.

Nico Perrino: There also seems to be a lack of understanding or at least appreciation for what has historically been seen as lawyers’ roles. You talk about it in the criminal defense case. You had Ronald Sullivan who was a dean at Harvard who was driven out of one of the houses he was overseeing because he represented Harvey Weinstein. The association of the client with the advocate is tighter now than it seems to have been historically where it was understood that even if a client is abhorrent or you find them offensive or you find what they’re alleged to have done detrimental to society, you still, particularly in the criminal defense space, want the government to prove its case.

You don’t want someone to be able to just get railroaded. Or even in the civil space, to the extent people have a viable claim, they should be able to utilize the legal system to pursue it.

Ilya Shapiro: And recall 20 years earlier when big law was jumping over itself to defend Guantanamo prisoners. Not because they agreed with them or necessarily thought they were innocent, but because they thought that’s what our legal system demands.

Nico Perrino: Well, what is the problem right now with the American Bar Association? I don’t know that folks have a full appreciation of what the association does as it pertains to the legal educational environment, but also just the legal profession in general.

Ilya Shapiro: So, the most important thing to know about the ABA for purposes of this dynamic we’ve been discussing, that I wrote the book about, is that they are the sole accreditor of law schools. They have a Department of Education granted monopoly over the accreditation of law schools.

Which is not the case for undergraduate institutions. Which means you can’t have a University of Austin Law School rise up because they would not get ABA accreditation, presumably because of DEI standards and other things that the ABA puts into effect. At this point, the ABA is just another left-wing interest group. It is not your, not even father’s, not your grandfather's ABA where Lewis Powell parlayed his presidency of the organization into a Supreme Court justiceship. Something like that wouldn’t happen now. The president of ABA, nobody knows who that is. Leaders of the legal profession don’t know who that is. It’s not an important person. It’s arguably less important than the leader of the NAACP or Planned Parenthood or one of these other name brand activist organizations.

Nevertheless, it purports to speak for the legal profession. And it’d be one thing if it spoke for it in the context of lawyer regulations. Should state bars be so powerful, or what kind of ethics guidelines need to be updated for the AI space or something like that?

Nico Perrino: So, they don’t have a formal relationship with the state bars that license attorneys?

Ilya Shapiro: Sometimes they do. It depends on the state. Most states require you to graduate from an ABA accredited law school to get a law license. There are some exceptions to that. California, notably, has non-ABA accredited law schools, so you can practice within California. But they are a gatekeeper to the state bar in that effect, even if they are not directly empowered. Although in many places, the state bar regulatory authorities just kind of adopt the ABA model rules for whatever it is. Anyway, as I was saying, they don’t just take positions on legal ethics or what have you, but on the controversies of the day, whether it be abortion or the Second Amendment or affirmative action or anything else.

Filing briefs, taking institutional positions. And that and all these other developments is why it’s declined in its importance –

Nico Perrino: So, you see that as a departure from their core mission. We often talk about colleges and universities taking positions on the issues of the day. And they’re increasingly not doing so, adopting postures of institutional neutrality. Is that not something that –

Ilya Shapiro: The Kalven Report from Chicago, right, which I think is a good practice that they’re relearning so that they’re not forced to take positions and argue over that. They can just say individual faculty or students can say whatever they want, but as an institution that’s not our role. Except when it affects the university directly. Similarly here, the ABA is supposed to be the lawyers’ industry group. So, if there’s something coming down the pike, whether in the state or from Congress that affects the legal profession, they should be able to opine about that.

But general run of the mill political controversies where their membership is understandably split, even if not 50/50, that’s not their role. So, now, I don’t know what the latest stats are now, but it’s something like 10 to 15% of lawyers are members of the ABA. It used to be much more than half. It used to be a comfortable majority.

Nico Perrino: Do you think we’ve reached peak cancel culture?

Ilya Shapiro: Ha. I thought you were going to say peak woke because I think the answer is actually different and they’re two different questions.

Nico Perrino: Answer them both because I’m interested in the other one as well.

Ilya Shapiro: Yeah. Somebody asked me this recently, was my experience with Georgetown and/or Hastings the peak of wokeness? And the answer to that is no. But I think it may have been –

Nico Perrino: That had to have been the summer of 2020, I think. Peak wokeness?

Ilya Shapiro: Well, that was when it flared up. I think it continued growing after that with companies, institutions reactions and instituting DEI policies and things like that.

Nico Perrino: Maybe you’re right. The next year or so.

Ilya Shapiro: But cancel culture I think has gone down. And it could be that my period of early 2022 was indeed peak cancel culture. Because we’ve definitely seen a vibe shift there. We’re no longer seeing executives being fired for this and that.

Nico Perrino: I think it’s underappreciated how much Elon Musk’s purchase of X contributes to that. Whatever you think of Elon Musk and the politics, Twitter, now X, was the driving force behind many of these cancel campaigns, including yours.

Ilya Shapiro: Including the very first notable one, the woman who got on the –

Nico Perrino: Justine Sacco.

Ilya Shapiro: – who went on the plane to South Africa and –

Nico Perrino: When you said that you tweeted and then fell asleep, the first thing that came to my mind was Justine Sacco tweeting, then getting on an airplane without Wi-Fi for however many hours.

Ilya Shapiro: Right. And was fired by the time she landed. So, X, Twitter plays a big role in that. So, I think Elon Musk’s purchase can’t be overstated in importance.

In terms of peak woke, the jury is still out. I think in society at large, certainly the pendulum has been pushing back. And as we’re recording this, we have a slew of executive orders from day three of President Trump, rooting out DEI, reversing all the stuff that Biden had done in terms of the political commissars everywhere, suspending anyone at any federal agency with the view of eventually letting them go. A whole scale assault on institutionals DEI. Which is part, maybe even most of the story of woke, but it’s not everything. That’s just the federal government. In our culture at large, I think there’s continuing work that needs to be done, continuing pressures kept.

In academia, I don’t know. Society at large, I’m with Brett Kavanaugh, I live on the sunrise side of the mountain. In academia, maybe we’re past the point of no return.

I don’t know, we’re in the eye of the storm. There’s a battle. The battle has been joined. But there’s massive resistance, and I choose that term advisedly. Both to the Supreme Court’s decision ending racial preferences, SSFA versus Harvard, about which there was a separate executive order just this morning reversing not just President Biden or Obama’s executive orders, but Lyndon Johnson’s that instituted affirmative action in the first place. Obviously, there are going to be a lot of lawsuits. At the end of the day –

Nico Perrino: You think there’s going to be a lawsuit back up at the Supreme Court dealing with corporate America at some point?

Ilya Shapiro: We will see. Well, SSFA hasn’t been legally mandated to be extended to corporate America. The interpretation of –

Nico Perrino: Well, that’s why I’m asking. You think they’ll take the principle applied there and extend it to corporate America where you have racial preferences –

Ilya Shapiro: Assuming there’s a circuit split. There might not end up being a circuit split. It could be that if these things are litigated and all the lower courts, even the 1st Circuit based in Boston that has no Republican appointed judges, even if they agree that yes, not – SSFA doesn’t directly apply, but the logic is inexorable that you can’t treat people differently based on race.

Nico Perrino: You’d also have to have a corporation that’s willing to take it all the way up to the Supreme Court, which I’m kind of doubtful of, at least in the short term.

Ilya Shapiro: Right.

Nico Perrino: So, you think –

Ilya Shapiro: But you know, there are interest groups, as I detail, there’s even the association of higher education diversity officers, which has thousands of members. This is a huge industry.

Nico Perrino: Oh, I debated DEI at one of their events.

Ilya Shapiro: They are not going to go gentle in the good night as their entire industry is completely threatened by this. So, there’ll be lawsuits. There’ll be arguments. And the media is not going to be just lying down for this. This time around, the Trump administration has lawyered up a lot better, both in terms of how these executive orders are structured and who’s in place at the Justice Department to defend them. General counsels in corporate America, I think this morning, are all huddling up about what they need –

Nico Perrino: I saw that on the front page of the Wall Street Journal, or at least the front webpage of the Wall Street Journal, that they’re huddling up. I will say at least on the academia side, over the past two years or so, ��ݮ��ƵAPP���� has received more requests, often private requests, and they ask that these requests remain private, to come into colleges and universities and advise them on how they can navigate this current moment and bolster their speech protections. Because I do think there is a recognition based on some of the conversations I’ve been in that the pendulum swung too far. That they are admitting the wrong sort of students into the college who didn’t quite understand what the mission and purpose of the college was, as well as the recognition that they’re not teaching these students.

Ilya Shapiro: That’s another point. We’ve been talking about different kinds of deans. Deans of admission are also a problem in terms of putting the thumb on the scales for activists rather than scholars. For law schools, you write in your personal statement that you want to change the world, that’s going to go a lot better at a place like Yale or Stanford than saying you want to prosecute child molesters, or you want to make our markets more efficient for the American consumer.

It's good that ��ݮ��ƵAPP���� is being queried as a consultant for these sorts of things. But you know, there are an awful lot of colleges and universities in this country. And a lot of their leadership thinks that they can just fly under the radar. We’re not Yale, we’re not Stanford, we’re not going to make national news when something happens.

Ohio Northern University is still locked in litigation with Scott Gerber, for example, a law professor there. Ohio Northern is the law school, it’s not the smallest law school in the country, I don’t think, but it’s a law school in the smallest town, located in the smallest town, Ada, Ohio. And they frog marched him out of his class for – they wouldn’t tell him for a while, for like a year what the charges even were. It was this Kafkaesque nightmare. I put him in touch with the Wall Street Journal so at least he could get his story out and he can get representation from I think American First Legal is representing him. But they won’t settle. They’ve offered him nothing.

And they’ve mediated in bad faith. This thing goes to trial in April. If you read the docket, this is an Ohio state court, Gerber v. Ohio Northern. Again, smaller schools that are not the Ivys, that are not going to get attention, think they can let this controversy blow over. It’s going to take a full nationwide, campus by campus approach.

Nico Perrino: I don’t want to pass up the opportunity to have a prominent Supreme Court watcher on the show and not ask about the First Amendment Supreme Court arguments from this past month, starting with TikTok. What are you making of that whole mess right now?

Ilya Shapiro: I am disconcerted that I find myself on the other side from ��ݮ��ƵAPP���� on both of these cases that we’re going to be talking about, the TikTok case and Free Speech Coalition v. Paxton. But I figured out a way to square the circle. It’s because these cases are not actually about the First Amendment and speech.

Here’s why. Harder to make for the Free Speech Coalition, but that’s a separate sort of thing. For TikTok, the court unanimously agreed with me, which doesn’t necessarily mean that it’s right, but it gives me some comfort that Thomas, Roberts, and Jackson all were singing from the same hymnal, that this is about ownership. If you look at the legislation about TikTok, it didn’t say TikTok has to change its algorithm because it’s rotting teenagers’ brains or is harmful to American political discourse. That’s a separate kind of argument that some states have tried to make, what have you.

This is simply about ownership. And we’ve had a tradition, whether through the FCC and communication networks or through CFIUS and the ownership of ports and other sensitive infrastructure, that foreign control of these things has been regulated as a national security concern. Now, we can argue about whether that balance has been written into the law improperly.

Or in this case, whether there really wasn’t a national security concern, that Congress was acting out of a sham interest or what have you. But bipartisan legislation passed in April of last year said that TikTok has to, ByteDance, the Chinese controlled parent company, has to divest itself, sell TikTok, or not be able to operate in the US. So, it’s not a TikTok ban because TikTok is bad. It’s a divest or stop operating because of the concern of data mining by the Chinese communists and algorithmic control. So, I agree with that. I’m actually doing a debate tomorrow at Cleveland State, or a panel, about this TikTok issue. I fully agree with my friend Mike Gallagher, the now former Congressman who designed the legislation. Again, drew broad support. I just don’t think it’s a free speech case.

Nico Perrino: The court says it was an “as applied” challenge. But if you look at just the law itself, do you not see any content-based regulation in it?

Ilya Shapiro: I mean, there is a definition of what a social media platform is. I suppose there is some content there –

Nico Perrino: But particularly the applications that are exempted, whose primary purpose is to allow users to post product reviews, business reviews, and travel information and reviews, those are exempted. To be able to determine what’s covered, you need to look at the content, right?

Ilya Shapiro: I mean, I’ve heard this argument made in a different way, that there are other platforms that similarly allow hostile powers, Chinese or otherwise, to get at our information. So, TikTok is being singled out or something. At a high enough level of generality, I suppose you could make a content argument. But I don’t think it’s really valid in the sense that this is, we’ve identified this particular platform as transferring data to a hostile power, period.

We’re not going to allow that. The solution isn’t to –

Nico Perrino: Even if people do it voluntarily? The disclosure requirements don't do it for you?

Ilya Shapiro: Right. Right. We have national security regulations of various kinds. And again, we can debate whether those are proper or not, but this was, I think, an appropriate – akin to blocking the Soviet Politburo from buying one of the three networks at the height of the Cold War.

Nico Perrino: Sure, sure. I think where ��ݮ��ƵAPP���� has disagreements with a lot of other First Amendment advocates, stalwart First Amendment advocates, is probably around what level of scrutiny needs to be applied to it. So, for example –

Ilya Shapiro: But you know those scrutiny levels are artificial anyway. A judge may –

Nico Perrino: I know, we’ll get into that as well during the First Speech Coalition v. Paxton one. If I’m looking at it from a broad level, I want to know what the implication of this decision is as the court and its per curiam decision points out, for mixed justifications.

For laws that are passed that have a content based motivation and a content neutral motivation. Here the content neutral motivation is data privacy. The content-based one is what platforms are covered, what ones aren’t that necessarily requires looking there. I can just see a lot of mischief coming from that because when we do litigation on campus and off campus, you often see mixed motives in some of the cases that we’re looking at. And if courts and judges, and I know they say in this decision that their opinion is narrow, but we know how courts actually will apply things and how advocates will try and expand the otherwise narrow opinion to mean much more. I can see a lot of mischief being played when free speech issues get litigated surrounding this mixed justification.

Ilya Shapiro: That will have to be taken up as applied in the next case. I think Gorsuch’s concurrence is, obviously it only speaks for him, but he comes at things a little more and he’s probably the most speech protective justice –

Nico Perrino: I think we would have been a lot more happy – and that’s not saying we would have been totally happy, but if his opinion were the per curiam opinion, or his concurrence was the per curiam opinion, we would have been a lot happier. But I do wonder how this just plays out because TikTok, theoretically, is available on the free and open internet outside of the United States. So, people, I guess, can use VPNs to still access it. It’s just the ISPs and the app stores –

Ilya Shapiro: Well, look, let’s say there was an app that freely identifies as, “We are America’s enemy. We want all of America’s data. Please sign up,” and people do. I think the United States could block that out of national security concerns. I think that’s what this is.

Nico Perrino: When you look at the Lamont case from 1965, that involved a Chinese publication, I believe it was the Peking Review. And the court held that users have the right to access this information.

That was a case that involved people having to tell the post office proactively that they wanted to receive it. So, there was an added burden placed on the speech. Is the difference here that the data that’s transferred, you’re not just sending the Chinese communist party, which owns the Peking Review, your address and name and you’re interested in these ideas. It’s the algorithmic based data mining that’s –

Ilya Shapiro: I think that matters. It also matters that all the justices also agreed that ByteDance doesn’t have any First Amendment rights, foreigners don’t. So, then you’re talking about the individual users.

Nico Perrino: Which really wasn’t grappled much with this case, I think because of who the petitioners are. They were content creators, and then they were TikTok itself. But I think a user case would have been interesting. Someone to say I have a freedom to access this information, which is an underdeveloped area of law in the First Amendment space.

Ilya Shapiro: And the answer to that would have been, “Well, okay, but we’re just blocking them from getting your information.”

Nico Perrino: Last thought. Let’s move to Free Speech Coalition.

Ilya Shapiro: I’m actually debating former ��ݮ��ƵAPP���� staffer, Darapana Sheth next week on this case at Penn Law. We’ll see if anything happens at Penn Law. That’s another place that has had some issues the last few years.

Nico Perrino: Amy Wax for example.

Ilya Shapiro: Right, of course.

Nico Perrino: So, Free Speech Coalition v. Paxton, this is a case coming out of Texas. They’re requiring age verification on websites that I have I think something like 30% or more adult content. It’s not just age verification. They also are requiring a health warning label on this content as well. And the question that’s up to the Supreme Court is what standard of review should be applied to this law. The 5th Circuit applied a rational basis standard. Usually when you’re talking about content space regulation, you’re not talking about rational basis standard, so I think that’s why the Supreme Court –

Ilya Shapiro: So, it could be the Supreme Court will say you need to apply strict scrutiny, 5th Circuit, redo it.

5th Circuit redoes it and comes up with the same exact result. So, I’m less interested in the standard question. Not going to fight the hypothetical, I just don’t care that much because these standards, the scrutiny land as Randy Barnett called his famous article from almost 20 years ago at this point is all artifice.

Nico Perrino: That’s kind of what Gorsuch says in the TikTok concurrence.

Ilya Shapiro: Yes. The point is does the government have a good enough reason for infringing on a right? Everybody agrees that the government can restrict minors’ access to pornography, without getting into a definitional debate over obscenity or adult’s rights. But minors’ access to porn. Again, that reiterated during the argument. Even –

Nico Perrino: That was the Ginsburg case?

Ilya Shapiro: Yes. The lawyer for the porn sites agreed with that proposition. So, the only question then it seems to me is does this technology for age verification burden adult rights?

Has the technology advanced far enough that you’re executing what the state can do, block minors, without burdening adults? It seems like, at least that’s what my brief for the Manhattan Institute and a bunch of interdisciplinary scholars, is that, again, I’m just a simple Constitutional lawyer, but the materials I was given and what I ended up writing and submitting was that the technology now – Unlike in TikTok, you’re not hoovering up everything from your biomedical data to your financial stuff to your retinal scan and whatever. All it’s doing is verifying your age. And it’s less burdensome even than inputting a credit card that’s then stored. If there’s a leak, then someone can see that your credit card was used to access a porn site. That was technology from 10 or 15 years ago. Now it’s less burdensome.

And to me, it checks out. To me, it’s doing what government can do without imposing a burden on adults.

Nico Perrino: Yeah, I’ve always had the question about how you would actually enforce the law and ensure compliance? Is it just that they have this technology in place? Let’s say they allow a minor to access the material. Are they not going to be held liable for that so long as they go through this process? And how would you even determine if it was a minor versus someone else accessing the material if you can’t keep a log of who is logging in? There has to be some sort of log to determine whether compliance is happening.

Ilya Shapiro: Ultimately, that’s up to the Texas attorney general, I guess, how they want to enforce it. The court is evaluating the law as written and how it can be applied. To me, it’s a question of technology. If the technology is there such that really adult rights aren’t burdened, you’re just very quickly, no 24-hour waiting period or whatever, just very quickly verifying your age. And then that information isn’t stored or connected to your identity or whatever else would be a burden, then it should be able to go.

Nico Perrino: What do you think about the question before the court, though, whether rational basis or some higher level of scrutiny should apply? Because if rational basis can apply, and we know what rational basis means in practice –

Ilya Shapiro: It means the government wins.

Nico Perrino: It means the government wins, or they could theoretically just ban pornography. Because that would be a rational way to prevent minors from accessing porn, right?

Ilya Shapiro: Which the court is never going to say that. And they’re not going to want to go back into the obscenity wars of I know it when I see it. Probably strict scrutiny is right or heightened scrutiny of some sort.

Nico Perrino: So, you think they would overturn the 5th Circuit and say you have to apply a higher level of scrutiny?

Ilya Shapiro: They could reverse and render. No, I guess they wouldn’t because they wouldn’t answer the question in the first part, or unlikely too. I think probably the most likely thing is, as I said, there’d be a lot of language about how the – rule that the standard is strict scrutiny, but a lot of language about how this probably survives.

Nico Perrino: I can see how this could survive under strict scrutiny. But I don’t see how the labeling requirement can survive under strict scrutiny, which is another part of this law.

Ilya Shapiro: Compelled speech, yeah.

Nico Perrino: Yeah. Particularly because the warnings say that there are psychological damages that come from viewing porn. And the Texas Health and Human Services Commission hasn’t actually announced findings that would give credibility to what they are compelling these sites to say. So, to the extent when you’re applying –

Ilya Shapiro: So, it’s not as justified as labels on cigarettes or something like that?

Nico Perrino: I don’t know. It might not be. You’d have to kind of look at the record in that case. I think it does matter what the health establishment finds when determining whether –

Ilya Shapiro: That could be, but it’s a completely different question because the labels presumably are targeting adults at that point.

Nico Perrino: Yeah. It has kind of brought up anonymous speech, which you recently wrote. Anonymous speech in so far as people want to be able to access this content anonymously. You recently wrote about masking, as well. This was for the Free Press. We know that in the wake of COVID, everyone started wearing masks. COVID has waned, people are still wearing masks and they’re doing so in the commission of crimes to clearly kind of cover up their misdeeds. You write in your piece that prosecutors and law enforcement in the City of Philadelphia, for example, are having a hard time prosecuting thieves or arresting thieves.

What do you make of thew whole – you tip your hat to the free speech concerns. I know the jurisprudence on it isn’t, from my perspective, all that great. It has a legacy that relates the Ku Klux Klan and the masks that they wore. But I have a hard time saying, okay, people can’t be anonymous in public at protests. And then transposing that principle to the internet, for example. Where I think you need to have a right –

Ilya Shapiro: I don’t know if it’s the same concern. Because I’m not making an argument about using pseudonyms when you write or something like that. This is purely in public masking to conceal your identity so you can’t be identified and prosecuted whether for shoplifting or whether for intimidating and harassing or being engaged in a protest that blocks a street or any of these sorts of things that are illegal.

Nico Perrino: But you can wear a mask in public because you don’t want to be associated with a disfavored cause or to commit a crime. In the same you can online. You can use Signal just because you don’t want to be associated with a disfavored group that you’re talking with. Or to engage in speech integral in criminal conduct. We had this debate in the ‘90s a little bit over encryption as well. And Bitcoin comes into play as well. You have all this anonymous stuff happening on the internet, some of which is benign and protected, others of which is not.

So, I don’t see how you clearly delineate that either in the real world or not. I can see making the case for wearing a mask being an aggravating factor, for example. But that also presumes that you can catch the criminal in the first place. So, it’s a tricky one.

Ilya Shapiro: Right. Someone who’s a bank robber, I think, is going to be less concerned about a sentencing enhancement for wearing a mask while you’re robbing that bank. So, I don’t think that quite does the trick. New York had the longest – had the oldest anti-masking law in the country until it repealed it during COVID and has never put it back. And that’s created a huge problem for identifying the people who took over Hamilton Hall at Columbia, for example. Alvin Bragg, I’m sure partly let them go for political sympathies, but also because it was very hard to establish people’s identities and who did what.

Nico Perrino: The protestors at Columbia who disrupted that class that you referenced earlier were also wearing masks. No, I get the problem, for sure, I get the problem.

I just want to be able to address the problem in a way that doesn’t create bigger problems for free expression. And in your piece you talk about that as well.

Ilya Shapiro: Someone who wears a mask is generally up to no good. You might have a legitimate reason. Because, what, feels like one degree outside now.

Nico Perrino: Unless they’re celebrating Halloween.

Ilya Shapiro: Well, Louisianna’s anti-masking law makes an exception for Mardi Gras. I don’t know if there’s a spike of shoplifting during Mardi Gras because of that.

Nico Perrino: I guess while we’re here, too, and we’re talking about all the ways in which you disagree with ��ݮ��ƵAPP���� in certain respects, and I should note that there are many, many places where we do agree, and your book makes –

Ilya Shapiro: ��ݮ��ƵAPP����’s my favorite organization. I told you and Greg and the others that were just truly helpful, you’re in my acknowledgments as I’m sure you realized. Not just the index for the Washington reads, but in the acknowledgements, that I hope to be one of your fundraisers. And I’ve never said no to any request that you all have made of me.

Nico Perrino: You spoke at our gala.

Ilya Shapiro: That was a great experience.

Nico Perrino: Right after Killer Mike or before Killer Mike.

Ilya Shapiro: Yes, introduced by Nadine Strossen as the opener for Killer Mike. Which other organization but ��ݮ��ƵAPP���� would that happen with?

Nico Perrino: But the one other place where we disagree is also the IHRA definition, International Holocaust Remembrance Alliance, I believe is the full acronym.

Ilya Shapiro: Which Harvard just agreed to as part of their settlement of their various lawsuits against it.

Nico Perrino: Yes. And they also expanded it because they included anti-Zionism as a form of antisemitism.

Ilya Shapiro: I think it clearly is. I go into that a little bit in the book. Let’s not go down that channel.

Nico Perrino: No, we don’t need to go down the IHRA definition. But I do worry that every other group is going to ask for their examples of anti-racism, anti-sexism to be included and to have a formalized definition. I know you have broader concerns about courts trying to define what is or isn’t antisemitism or racism. But I definitely have a concern about the CRT people embedding in some sort of definition that gets adopted by a college or the federal government that enshrines systemic racism principles surrounding anti-Black racism, for example.

Which is a protected category.

Ilya Shapiro: So, I agree with ��ݮ��ƵAPP���� that the Davis Holding should be the gold standard in terms of what is harassment, what public institutions can regulate, how private institution policies should operate. That harassing someone based on various protected categories and things like that. I’ve had this disagreement with ��ݮ��ƵAPP���� in the context of the antisemitism awareness act, which I image is going to be reintroduced in this new Congress. It might have already been passed one of the houses, I’m not sure. Which adds some flesh onto what antisemitism is, because it’s never been defined. I also agree with ��ݮ��ƵAPP���� that some of the examples in the IHRA thing can be problematic in a vacuum.

But the antisemitism awareness act, as I wrote in a letter to the editor at the Free Press responding to my colleague Chris Rufo, with whom I fully agree about DEI and CRT and all those, and Jenin Younes at the National Civil Liberties Alliance, who I’ve also supported with briefs and other kinds of cases. The act itself says that it does not create, infringe on the First Amendment at all, does not change the scope of Title VI or antidiscrimination law. It simply is a definitional thing.

Nico Perrino: We know how those savings clauses work in practice, right?

Ilya Shapiro: Whenever you change a law, I suppose it’s room for litigation. Lawyers always win. But I think it’s a necessary component of these groups that say, “Oh, well we’re not really going after you because of your background or religion. We’re going after you because we don’t like your ideas, or we don’t like Israel.

Querry, why are you protesting a Jewish student organization if you don’t like what Benjamin Netanyahu is doing. I think it’s necessary. I’ve been satisfied of First Amendment concerns.

Nico Perrino: The problem with Harvard is they adopt it, but –

Ilya Shapiro: I’m sure there are many problems with Harvard.

Nico Perrino: They don’t have the Davis Standard for –

Ilya Shapiro: I am not opining on the Harvard settlement. In fact, Shabbos Kestenbaum, who is kind of the figurehead of the – made a big splash, a former Democrat who was all in with Trump because of this issue and the Harris campaign not listening to students being effected by the encampments and all these sorts of things. He did not go along with the settlement. So, he has gotten separate attorneys to continue his case against Harvard. So, I haven’t read the settlement. I’m not going to opine about whether it’s good. I’m sure there are problems and I’m sure Harvard is going to try to weasel out in all sorts of ways.

Nico Perrino: Yeah. Well, one of the problems is that they don’t have the Davis Standard for nondiscrimination and bullying. They use the or instead of the and formulation of severe, pervasive, and objectively offensive.

So, we’ll see how it all plays out. I’m sure, as you note, the Antisemitism Awareness Act will get reintroduced, and we’ll see where it goes. Ilya, this has been fun. Congratulations on the book. I know these are labors of love. Would you describe this one as a labor of love? It seemed like it was almost painful to write and revisit.

Ilya Shapiro: More like a forced march, yeah. The part about myself was just cathartic. I had to get off my chest.

Nico Perrino: You found out you were having twins when all this was going on.

Ilya Shapiro: Our little cancelation babies, absolutely. It was amazing. God’s compromise. My wife Kristen wanted three, I wanted five, we ended up with four. They’re great. They’re two now and they’re thriving. Part of this germinated on my Substack, Shapiro’s Gavel, which talks about my personal stuff and other legal stuff and basically things that I don’t publish on the op-ed pages of Wall Street Journal or City Journal or what have you.

But then once it got into the other things like researching these bureaucracies, thankfully I had research assistants and things like that, or the ABA, it was infuriating, it was annoying. I had to get through it because it’s an important point to be made, I thought. I think it’s an important book. I hope I wrote it up well. I slaved over the writing. Like Scalia, I enjoy having written. So, I do have a good feeling about it now, but the labor itself was not always one of love.

Nico Perrino: It was kind of impressive though. Tell me what you were telling me before we got on that you would sit down at the computer every day for a period of time and write, whether it was 3,000 words or 300 words.

Ilya Shapiro: How I did it, my last book or this one, there’s a core three-month period, because it’s not sustainable I think longer than that, where every morning, 5 a.m. to 8 a.m., roughly, plus/minus, I would sit down. Number one rule of writing a book is apply butt to chair. I would try to limit distractions. I would just have my coffee. Whether that produced 3,000 words of gold or 300 words of crap, that’s what it was.

And after three months, about 90% was done.

Nico Perrino: You had a book. All right Ilya. Well, the book is “Lawless: The Miseducation of America’s Elites.” It’s out now and I encourage everyone to check it out. Thanks for coming on the show.

Ilya Shapiro: Thank you, Nico.

Nico Perrino: I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my ��ݮ��ƵAPP���� colleagues including Sam Li, Aaron Reese, and Chris Maltby. This podcast is co-produced by Sam Li. To learn more about “So to Speak,” you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. You can follow us on X by searching for the handle Free Speech Talk. We’re also on Facebook. Feedback can be sent to sotospeak@thefire.org, again, sotospeak@thefire.org.

And if you enjoyed this episode, please leave us a review on Apple Podcast or Spotify. Reviews help us attract new listeners to the show. And until next time, thanks again for listening. Can we get five seconds of room tone?