First Amendment Fair Weather Friend

A conversation with Jenin Younes

(Author’s note: When I interviewed Jenin Younes for this, it was toward the high point of the 2024 spring campus protests. She was gracious with her time and we had a great conversation. As a rank amateur, I had NO IDEA how lengthy a transcript such an interview would generate. It was intimidating, and I did the absolute worst thing: instead of gradually editing it into an essay, I let it sit. When I finally got in gear, I told myself that while it wasn't as immediately _topical_, there was a timelessness to the discussion. But then a funny thing happened. The idea of campus protest and threats of violence raised its sleepy head, looked at the prospect of studying for midterms versus shouting opinions _during an election year_, and decided to get right back into it. So now, instead of grossly tardy, I want you to consider this as _eerily prescient_.

One last point: I have edited and offered Jenin the opportunity to edit the transcript. We both did so to help clarify what was an informal discussion. In my opinion, the edits are in the spirit of the conversation. Also, I tend to ramble, and extra words are the last thing this transcript needed.)

Free Speech, revisited

In a prior essay I said the First Amendment is downstream from a culture of tolerance for divergent speech. I’ve reflected on whether I have been good to my own words in the wake of campus protests regarding the conflict between Israel and Hamas. At times I have been frustrated and even angered by the tactics used. If I’m honest, part of me wanted them shut down. This essay is my self-reflection on the topic. Am I guilty of what I have accused others of? Did I really believe in “free speech for me but not for thee,” but it just wasn’t obvious to me until I was the one wanting to censor?

In short: was I a fair weather friend to the First Amendment?

For this topic, self-reflection was not enough. Legendary Nobel physicist Richard Feynmann said these words in a different context, but his first principle of science applies:

“You must not fool yourself. And you are the easiest person in the world to fool.”

So Quijotesco will bring in a guest. If you follow my underappreciated social media presence, you may have seen me refer to her as “Future Attorney General Jenin Younes.” And I am only a little bit kidding when I say that. Jenin has been an instrumental lawyer fighting for the right of free expression. She is litigation counsel for the New Civil Liberties Alliance, whose motto should be ”protecting the things you thought the ACLU was protecting.” 

I learned about her work during the pandemic, where she played a key role in representing Drs. Jay Bhattacharya and Martin Kulldorff in the case of Murthy v Missouri. That case looked at the role the government played in what I would call censorship by proxy, leaning on tech companies to police speech during the pandemic. She was on the team that argued before the Supreme Court. I think it is the most important First Amendment case of the Digital Age, yet most people know little about it. Both in court and in her private capacity, Jenin has been an energetic and outspoken advocate for a right to free speech. I consider her an ally, and I think her best work is still ahead of her. That “Future Attorney General” label feels less like a joke and more like getting in on a stock at the IPO .

During the recent string of campus protests, it seemed like Jenin and I were suddenly on opposite sides. I didn’t think I’d abandoned my First Amendment commitments, but I also was not particularly sympathetic to the student’s point of view. The Israel-Palestine conflict predates and will likely outlive me by centuries. There is no way I can do it justice here. I will just say that there is blame to go around, and reasonable people should be able to disagree. So it should not come as a surprise that just because we agreed about COVID didn’t mean we’d agree on this issue. 

But it felt different. I found myself in visceral disagreement with the protesters, but was that  justified? Was I too willing to see restrictions on their right to protest? Was I guilty of a double standard, wanting to limit speech, even hateful speech, that in another context I would say was fully protected? That’s why I have brought in Jenin. I must add that she is being very gracious with her time. We did have to move back the timing of our interview, but I have to concede that, as excuses go, “Bari Weiss called and needed an article for The Free Press” was solid. I will admit that the appeal of The Free Press is not quite as…selective…as that of Quijotesco.

The conversation was free ranging, and too long to reproduce fully. What follows are some highlights, edited for brevity and clarity, and my closing thoughts.

Why the First Amendment?

David: Thank you for agreeing to do this.

Jenin: Thank you for asking me to do this. I think there is a lack of actual desire to talk about issues on all sides, and instead, people just shout at each other. So, I think it is productive to have a conversation.

David: Absolutely. I’d like your opinion on this: for some who argue in favor of strong First Amendment protection, when speech occurs that doesn’t align with their values, their reaction is often emotional. They expect people to agree with them, rather than stepping back to reflect. Do you approach these issues more formally, or do you feel your commitment to First Amendment principles is ingrained in your approach?

Jenin: That’s a good question. I’m almost at the point where I have the latter—I check myself sometimes, because I have my own biases. Someone gave an example about the government censoring misinformation or having the social media companies do it. What would you think if a Christian group or white supremacist group was running around saying Hamas had committed an attack against Christians, but they hadn’t? It was a lie, but it started sparking attacks on Arab Americans. Of course, that example is frightening to me as an Arab American. I have to check myself, but no, the government can’t suppress that speech or compel social media companies to take it down unless it includes a direct threat. It’s important to be consistent on free speech principles.

David: Regarding censorship in the digital age, and the case of Murthy v. Missouri. To me it was very chilling, to have the government suppress speech through a back channel and not even own up to it. What do you see as the future of free speech in a digital commons? 

Jenin: I think the future of free speech on the internet is not clear and largely dependent on the rulings.

David: It feels like the culture is valuing less the idea of free expression. Do you share that view and what are your thoughts?

Jenin: I agree. We tend to be a little nostalgic about the past. I didn’t live through the 60’s and don’t know what the average person thought. The issue is the citizenry does not care about free speech. They are more worried about their feelings and not being offended by thoughts, and safety, and that’s a problem. Members of the populace are, after all, the future judges. All of these cases are subjective and require employing values, which can be somewhat personal.  Also, the Constitution was written in 1787, so applying it to internet-related issues can be tricky.  Obviously, there is nothing in the Constitution saying that the government shall not talk to social media companies about censoring speech, so we are trying to apply broader principles. If you have people who don’t care about speech in the first place on the bench, then you’re in trouble. And I think we are seeing a lot of it now. One thing that really bothers me about the present moment are calls and excuses for censorship by some of the same people who were against it in the COVID era because they don’t like the speech.

The Israel-Palestine Protests

David: That brings us to the current moment. We can stipulate that the Israel Palestine conflict predates both of us and will likely continue after we are gone. We don’t have to solve that right now. It is about how it was approached and how people reacted to the protests. There have clearly been some bad actors, where protests infringed on other people’s rights. How do you view that?

Jenin: I think it’s fairly simple. If people are blocking traffic, destroying property, breaking laws, then they can be punished for that. If they are peacefully protesting, even if they are saying offensive things, then that’s protected. Reading between the lines, there were a lot of people who supported the Canadian trucker protests against the vaccine mandates, or the anti-lockdown protests, who were depicted by the media as full of white supremacists and Nazis and people with ties to Trump. I feel like there is a parallel attempt here to do the same thing with people who are protesting Israeli actions in Gaza. To depict them as pro-Hamas, to depict them as bad actors. Of course there will be some actual bad actors or antisemites among the thousands of protesters.

In my opinion there has been too much eagerness and glee about shutting them down. And I think that’s because of the message. I think there has been a bad-faith effort to paint them as supporting terrorism. And I think there has been a blending of the distaste of many on our side, including myself, for “woke culture,” with people who are protesting what they (and I) see as terrible injustices to the Palestinian people.  Some of the videos show young people who say some dumb things, who don’t know very much. There’s a lot of “oppression complex” that they are trying to build into this that is off-putting. But many have good motivations. They are concerned by the amount of death in Gaza. Some of them probably understand the origins of the problem and feel like the Palestinians haven’t gotten their fair shake. Which is what I think as well. So, I take umbrage with some of what’s being said on our side.

David: I think that’s fair. And this is where I will cop to some of this. I think my emotional reaction at first did conflate some of those things. They make it easy to not take them seriously. If you want to, you can “nut pick”—take the most ridiculous argument on the other side and let that be the representative. It’s so emotionally appealing that I fell into it myself. I want to learn from this. I can still disagree on merits, but I think getting bad ideas into the public square is the best cure for those ideas. That’s the principle I want to keep coming back to: let folks keep talking, and if it’s a bad idea, that’ll come out. If it’s a good idea, maybe it will change some minds. But either way, trying to suppress it is generally going to be bad in terms of not getting rid of the idea, it will just drive it underground. And it doesn’t give an opportunity to learn.

Jenin: It’s one of the reasons we have free speech. I’ve been thinking a lot about it too, especially recently, and I don’t want to reflexively defend the protesters. There have been examples (UCLA)  where both sides have behaved badly and maybe unlawfully. To an extent the real issue has gotten lost in all of this focus. That’s what irritates me. No matter what you think of Hamas, nobody with any fairness can deny that there are 2 million people in Gaza suffering immensely, many of them women and children, getting bombed every day, limbs lost, kids going through amputation without anesthesia, really heinous things, and we’re sitting here making fun of someone because they have a banana nut allergy. It’s really silly, and trying to associate the whole cause with that is not fair to the Palestinian people. It’s not the fault of the kids getting blown to bits that there are some woke idiots who have taken up their cause.

Of course one reason I’m passionate about this is that it’s personal to me and I want to be forthcoming about that.  My father is Palestinian, he grew up in the West Bank. Israel occupied the West Bank when he was 15, and he spent his young adult life there. It’s really shitty to live under an occupation. That’s why he made a lot of efforts to get an education and move here, so he didn’t have to live there. I’ve been hearing about this conflict for as long as I can remember, and my dad’s stories of the suffering he endured. For people who hated lockdowns, every day is a lockdown and way worse. You might get shot by an Israeli soldier if you leave your house. Palestinians in the West Bank have no rights at all, you can be imprisoned, killed, have your house bulldozed, for any or no reason at all.  You have no right to a trial or even to be charged in order to be held in detention. Gaza is worse, because it has been under a siege since Israel withdrew in 2005. There is a lack of understanding of history. We don’t have to sort out everything going back to 1948, the point is to say that from my perspective there are people who are waking up and seeing that the Palestinians’ rights have been violated for 50 plus years, but the perspective of people who have not been paying attention their whole life is “oh, this is just the latest cause the woke idiots are taking up, and they love terrorists.”

David: One of the things struck me about this. It is a complicated issue with legitimate grievances on both sides. I am not a knee-jerk defender of Israel's actions. And a lot of that nuance gets lost in an oppressor/oppressed narrative, and you try to cram everything into that one paradigm. Recently it has become more about the protesters rather than the cause. A good-faith reading of their protest is getting lost, which is a shame, because we could have conversations about what is a legitimate role for the United states.

Jenin: I made a tweet joking that one of the worst things the Palestinians have had to endure is woke Americans taking up their cause. 

The Courage of Your Convictions

David: There are two interrelated issues regarding wearing masks during protests. There is some precedent, generally applied narrowly, such as to the KKK, about disguising your identity during a public protest. I think there is a subset of protesters who are concealing their identity to do something illegal or violent. On the other hand, there is a concern about “cancelation” or having a legitimate protest held against you.

Jenin: I first thought it was about virtue signaling, but I heard they were trying to protest their identity. And there _are_ groups, like one called Canary Mission, dedicated to ruining the lives of students who speak out for Palestinian rights. I was in Students for Justice in Palestine in college, and we were very scared of Canary Mission. They would post your profile on their website, they called you an anti-Semite, they tried to contact prospective employers. So that concern I get and am sympathetic to, and I’ve been told by a number of students that’s why they’re wearing masks at the protest.  But on the other hand I think if you are going to protest you need to have the courage to stand behind your actions. I would never wear a mask at a protest, and I think when you look at them all masked, they look scary. This might also cause more violence. It is also easier to beat up on someone wearing mask. A funny anecdote: when the mask mandates came down, I looked into how to challenge them legally, and the only legal precedents were laws saying masks were _illegal_ over concerns about people commiting crimes. So there is precedent. 

David: I tend to think that your right to protest is meant to be a right to publicly put your name behind something. It seems like you can be anonymous in public, you can protest in public, but anonymous protests, I am not saying it should be illegal, but I don’t think we have grappled with this.

Jenin: That’s similar to what I think. I also think that if you are going to protest about Palestinian rights, you should be braver. You should have the gall to show your face. “Oh, I might not get to work at X company” well, sometimes that is the price you pay. I certainly have paid that price. There are tons of employers who won’t hire me because of things I have said. It has that Gen Z flavor of wanting to have my cake and eat it too. 

David: It wasn’t called “Letters from a Birmingham Internship.” There is sometimes a price to pay. The long history of civil disobedience is being willing to go to jail for your beliefs. And for all of the bluster in the protests, it is a flaw. You’re getting “protest LARPing.”

Jenin: It’s probably why a lot of people have a negative opinion of the protesters. They are acting like they are taking a brave stance, but they don’t want to do anything that might cost them anything in the future. It’s annoying to people like me, who have taken massive risks and lost opportunities. Sometimes that’s the price you pay for saying what you believe.

David: In some ways, they are robbing themselves of the long term payout. You’re a great example as someone who has lived by these values, and you are being recognized as a thought leader in this space because you have taken these stances.

Jenin: I had been a New York public defender for nine years, and this opportunity came along because I had taken this stand. And I was worried about speaking out this time, and it cost me some opportunities, but others opened up. I am compelled to do the right thing regardless of the consequences, And I decided that if this means I’ll be poor for the rest of my life, so be it, but I have to say what I believe. But that didn’t happen either time (yet).

Free Speech and Higher Education

David: One of the reasons I had the reaction I had was the Ivy Presidents testimony to Congress on December 5th, 2023. They were unable to square their prior restrictive approaches to free speech with their more permissive approach to the most recent protests, calling them free expression. It was a retreat back to what I think is the correct position, but it was the hypocrisy of the leadership that it wasn’t applied that way before

Jenin: I think that’s absolutely true. Nobody had more contempt for campus speech codes than I did prior to October 7th. I was mocking their ridiculous positions, like the Yale protests over Halloween costumes. As you said, the correct approach is what they are doing now, not to apply the crazy standards in the past to the present.  Some might have been in bad faith., Some might be that they were caught off guard. Equating anti-semitism and anti-zionism is confusing. A lot of Jewish students would claim that “From the River to the Sea, Palestine will be free” is anti-semitic, but many Palestenians would say it is a call for equal rights in the territories

David: What do you think about the next generation of lawyers? Do you recall the protest of the law students to protest and shout down a visiting 5th Circuit Court judge at Stanford? It prompted a great defense by then-Dean Jenny Martinez, but she is now gone and it doesn’t seem like anything changed. 

Jenin: I make fun of them on social media for not being able to handle a discussion or even mild disagreement. I think the present moment means we need a robust rethinking of what our values should be and how they should be applied to campuses. I think they should generally adhere to the First Amendment. One would hope that the most extreme statements would be suppressed by social pressure. It’s campus, not the public square, so I think there can be some codes of speech, but it is a gray area. 

David: I think the universities have left themselves without a leg to stand on, when they have not consistently enforced it in the past. I see policy and law as downstream from culture, and I feel like we have been losing that. My generation grew up on Schoolhouse Rock and singing the Preamble to the Constitution. I don’t believe we have done a good job of passing down an appreciation of those values to the current generation.

Jenin: I’m an “old Millennial” so I am part of the generation technically but identify more with Gen X.  Also, my mother was kind of an old-fashioned liberal with a lot of libertarian leanings, which I absorbed (I use past-tense even though she’s still alive because she’s changed; like many boomers, become far more knee-jerk liberal). I think elevating the oppression narrative and obsession with identity has been a part of the problem with the Millennial mentality. 

David: The teachers are steeped in critical theory. The idea of coming together for a common cause of the United States and its values is not nearly as important as I would want it to be. Focusing on immutable characteristics, how do you ever come together? If that is our focus, rather than values and moral character, it is a recipe for never coming together. I don’t like the path we are on.

The Big Picture

Jenin: I spent time in Switzerland, where there was a cordiality that isn’t present in the US. There is a thread that ties everyone together and a pride in Swiss identity. We have a unique challenge because our country is so big and our demographics are so varied. We have so much diversity, so I don't think we have a shared culture like some European countries. So, the Constitution and a commitment to those values is important to hold us together as a society. But that has been fractured by a focus on identity politics, who has oppressed whom, and how to rectify the oppression of X group by Y group.

David: The United States needs a shared myth. Even if it is somewhat embellished, like women and Blacks initially not being able to participate, but we fixed that. Moving slowly toward that “more perfect union.” I feel like with the oppression narrative, there is no final point other than tribalism and which tribe has the power at the moment. The idea that it will reach an equilibrium point and then stop isn't even contemplated. Because people will never have equal outcomes, you can never have equality of outcome ever be maintained other than through manipulation. Whereas the shared myth has a goal: we all come together from our immigrant ancestors. I want to find a way back to that path together

Jenin: I agree, but I don’t know if it is realistic. There is a poisonous divide between our political parties. We have huge problems with education and healthcare, but we are throwing our money and energy away, wasted on infighting between political parties.

Summarizing:

Jenin: I think we agree about most things. 

David: I think you have given me some things to think about. Take a pause. To not be so quick to try to score points against the opposition. I will remind myself that the protests will mostly be people with good intent and a smattering of bad actors. 

Jenin: I am also forgiving of young people. Because they are dumb. They are emotional, uninformed and narcissistic, but I have tolerance because I was that way at that age. I remember when I was in college, and someone said something about Muslims that offended me, and I marched out of class crying. I think I was twenty. I laugh about it now. So I have a little bit of tolerance for them. 

David: I routinely give thanks that there were no cell phones to record my youth.

Final Thoughts:

Reader, if you made it this far, God bless you. I think there are some good lessons here. As we are on the doorstep of a very contentious election, it pays to remember that the majority of the people who disagree with you on the choice for President are good people voting for what they think will be the best option. They may be wrong, but they are not your enemy. We are going to have to find a way to work together to face the challenges of the 21st century. The First Amendment will be stressed, but I still believe getting all of the ideas and speech out there is for the best, even the speech I think is wrong or hateful. I trust my fellow Americans to use common sense to sort things out.

Eventually.  

“Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.” - Winston Churchill.

Cheers, y’all.

(If you would like to support speech and other fundamental rights, a donation to the New Civil Liberties Alliance would be money well spent.)

(about the art: it was AI generated and just too good not to use. It is being kind to me and not kind enough to Jenin, but we both thought it was hilarious.)