The Freedom of Thought Podcast: Recent Episodes
The Federalist Society
The Freedom of Thought Podcast: An opportunity to explore the people behind the books, articles, arguments, and events that contribute to the law and public discourse. We interview the scholars and attorneys bringing fresh thinking to new challenges and questions, and ask: what makes you different? What are the convictions behind your engagement on controversial questions? How has your work shaped your thinking, and how have your ideas evolved? What have you learned about the value of freedom of thought?
Financial institutions have faced growing scrutiny for debanking customers, with no explanation. While debanking is sometimes legally necessary when banks suspect unlawful conduct, recent reports have prompted high-profile questions about the practice, including from the President himself.
The lack of transparency does not help. How do financial institutions determine which accounts or services will be closed? Are these decisions driven by regulatory sensitivities, perceived reputational risk, or other considerations? Should legal limits exist on financial institutions' discretion to debank? What are the rights of corporations to choose what customers to serve and what, if any, limits might apply in an industry as heavily-regulated and protected as banks? What can be done to protect citizens' rights to participate in public discourse without fear of financial exclusion?
Featuring:
Nicholas Anthony, Policy Analyst, Center for Monetary and Financial Alternatives, Cato Institute
Hon. Rohit Chopra, Director, Consumer Financial Protection Bureau
Will Hild, Executive Director, Consumers’ Research
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Megan McArdle, Columnist, Washington Post
Prof. Richard Epstein joins Prof. Todd Zywicki to discuss his academic journey, where he learned early on, particularly through the lens of Roman law, that legal issues cannot be understood by mere definitions, but by understanding deeper substantive theory. Prof. Epstein emphasizes valuable lessons he learned along the way, such as the importance of figuring out where one’s particular strengths lie and how to “do” law by oneself. How does one transition from a dutiful student to a sui generis thinker? Join us for an engaging discussion on Prof. Epstein’s evolution of academic thought and the adaptation of Roman law and early English common law to the world around us.
Featuring:
Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
At this Freedom of Thought Project event, panelists will discuss the current political landscape in the U.S. and how rhetoric from political leaders impacts our judiciary, society, and our freedoms.
Featuring:
James Burnham, President, Vallecito Capital
Jay Edelson, Founder & CEO, Edelson PC
Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School
Moderator: Megan McArdle, Columnist, Washington Post
And later featuring:
T. Elliot Gaiser, Solicitor General, Ohio
Eric Wessan, Solicitor General, Iowa
Moderator: Megan McArdle, Columnist, Washington Post
At this Freedom of Thought Project event, panelists will discuss the current political landscape in the U.S. and how rhetoric from political leaders impacts our judiciary, society, and our freedoms.
Featuring:
T. Elliot Gaiser, Solicitor General, Ohio
Eric Wessan, Solicitor General, Iowa
Moderator: Megan McArdle, Columnist, Washington Post
In Part I, Professor Julia Mahoney joins Professor Joshua Kleinfeld to delve into the complexities of governmental regulation and market power. What makes markets possible? How do institutions enable people to cooperate in a productive way? In what ways can they prohibit people from doing so? Tune in for a conversation on private power, free markets, crony capitalism, and more.
Featuring:
Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Joshua Kleinfeld, Professor of Law, Northwestern University Pritzker School of Law
Part 1 of Open Minds with Ryan Newman covers how his upbringing in the American southwest and his less conventional career, including military service, as well as judicial clerkships, and service in both state and federal government, shaped his life and thought. What does it mean to fight for what you believe in? What grounds our rights, and are there limits to those rights? How do political leaders balance our competing interests in national crises?
Featuring:
Ryan Newman, General Counsel, Executive Office of the Governor, State of Florida
Alida Kass, Vice President & Director, Strategic Initiatives and Freedom of Thought Project, The Federalist Society
Hon. Andrew Ferguson, Commissioner, Federal Trade Commission
Hon. Paul B. Matey, U.S. Court of Appeals, Third Circuit
What responsibility do states have in protecting the rights of their citizens? How should we think about rights like the freedom of speech — do rights operate primarily as a limit on government power, or do they protect the natural rights of the citizen? Which framework is more consistent with original understanding? What limits applied to freedoms of speech — to what extent were they regulable by government and for what ends? How were rights defended and enforced?
Prof. Randy Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
Hon. Rohit Chopra, Director, Consumer Financial Protection Bureau
Prof. Joshua Kleinfeld, Professor of Law, Northwestern University Pritzker School of Law
Prof. Maimon Schwarzschild, Professor of Law, University of San Diego School of Law
Jonathan Urick, Associate Chief Counsel, U.S. Chamber of Commerce Litigation Center
Moderator: Hon. Kyle Duncan, U.S. Court of Appeals, Fifth Circuit
How did corporate rights evolve to include expressive constitutional rights akin to those of a natural person? How should we think about constitutional protections for corporate speech promoting commercial interests? Should the degree of alignment between ownership and control affect the constitutional interests of the corporation? Does SEC regulation on shareholder voting interfere with shareholders’ constitutional rights? If substantive rights like freedom of speech operate primarily as limits on government, does it matter whose rights are being protected?
John Ehrett, Chief Counsel, U.S. Senator Josh Hawley
Prof. Robert Miller, F. Arnold Daum Chair in Corporate Finance and Law, University of Iowa College of Law
Matt Stoller, Director of Research, American Economic Liberties Project
Eric Wessan, Solicitor General, Iowa Office of the Attorney General
Moderator: Hon. Gregory G. Katsas, U.S. Court of Appeals, District of Columbia Circuit
How did citizens understand corporate power at the Founding? What were the rights, privileges, and limits on corporations, and how did the rights of corporations compare to those of individual citizens? Should the fact that significant elements of the corporation–including their creation and ability to operate across state lines–were privileges granted by the state affect our thinking on corporate rights? And how does contemporary thinking about corporate rights align with founding-era understandings?
Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Hon. Doha Mekki, Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice
Ryan Newman, General Counsel, Executive Office of the Governor, State of Florida
Lael Weinberger, Fellow, Constitutional Law Center, Stanford Law School
Moderator: Hon. Julius "Jay" Richardson, U.S. Court of Appeals, Fourth Circuit
In Part 2 of Open Minds with Ryan Newman, we discuss government and private coercion and how state plenary authority plays into questions of freedom. How does concentrated economic and government power affect the democratic power of private citizens? How does a corporation's size and scale change its ability to exercise political influence? And how can conservative and libertarian discussions shift from focusing on process and procedure to inspiring substantive change?
Featuring:
Ryan Newman, General Counsel, Executive Office of the Governor, State of Florida
Alida Kass, Vice President & Director, Strategic Initiatives and Freedom of Thought Project, The Federalist Society
What can state actors do to protect or interfere with online public discourse? The recent argument in National Rifle Association of America v. Vullo suggests that there is some outer limit of government coercion on private actors to interfere with disfavored ideas. But questions from the bench in Murthy v. Missouri, argued the same morning, have some wondering if those limits might allow for significant “informal” pressure by government actors on platform operators to restrict user speech.
Together, the cases highlight the significance of the NetChoice cases heard last month. Can laws like those adopted in Texas and Florida create counter-pressure against coercion from the federal government? What responsibility do states have in protecting their own citizens’ participation in online public discourse?
Featuring:
Alan Gura, Vice President for Litigation, Institute for Free Speech
Prof. Julia D. Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Matt Stoller, Director of Research, American Economic Liberties Project
Moderator: Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Co-founder of Mozilla and creator of JavaScript, Brendan Eich had made remarkable contributions to the technology sector. He also had contributed $1,000 to the (successful) Proposition 8 campaign against same-sex marriage. On April 3, 2014, Mozilla forced him out of the company he had founded, with apologies for not having acted sooner.
Watching it all unfold, Prof. Todd Zywicki was concerned, warning that this would not stop with financial contributions for ballot initiatives – that it was not a stable equilibrium. At least at the time, Inez Stepman was less troubled, confident that such disagreements could be resolved through market forces. Who was right? Join us for a conversation with Prof. Zywicki and Inez Stepman, as they reflect on the campaign against Brendan Eich, consider lessons learned, and discuss the implications for freedom of thought today.
Featuring:
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Inez Stepman, Senior Policy Analyst, Independent Women’s Forum
In the first part of this interview, James Burnham and Jonathan Mitchell discuss his unusual career progression in alternating legal practice and academia, how his experience with consequentialism informs his formalism and textualism, and what's next for the conservative legal movement.
In June, the Supreme Court held that consideration of applicants’ race in admissions decisions of Harvard and the University of North Carolina violated both the Equal Protection Clause of the Constitution and Title VI of the 1964 Civil Rights Act. Join us as two EEOC Commissioners, Democrat Vice Chair Jocelyn Samuels and Republican Commissioner Andrea Lucas, discuss their respective views on how this decision, the federal law banning employment discrimination (Title VII of the 1964 Civil Rights Act), and EEOC regulations apply to employers’ DEI programs and initiatives. The Commissioners also will discuss their views on related topics such as the benefits and risks related to various categories of DEI programs; how employers should assess the lawfulness of their initiatives; and promising practices and guardrails for employers.
Featuring:
Jocelyn Samuels, Vice Chair, Equal Employment Opportunity Commission
Andrea Lucas, Commissioner, Equal Employment Opportunity Commission
Moderator: Kate Comerford Todd, Partner, Ellis George Cipollone
For decades, the plaintiffs' bar has been populated by liberal lawyers who support left-wing elected officials and liberal causes, while conservative lawyers have largely joined the ranks of defense-side firms. In recent years, large public companies have become increasingly associated with political liberalism, and promoted contentious social issues that many conservatives reject – with biglaw defending them throughout.
Given this shift in corporate behavior and business culture, it is reasonable to ask--why haven't more conservatives joined the plaintiffs’ bar that seeks to hold large companies accountable? Is our culture shifting in a fundamental way that will realign the legal profession? Or will the tension between supporting big business and believing in conservative views soon pass?
Join us for a discussion that reflects the diversity of perspectives within the right on these questions.
Featuring:
James M. Burnham, President, Vallecito Capital, LLC
Ashley Keller, Partner, Keller Postman
Mark Behrens, Co-Chair, Public Policy Group at Shook, Hardy & Bacon L.L.P.
Brandon Smith, Chief of Staff, Office of the Tennessee Attorney General
Moderator: Andrew Ferguson, Solicitor General of Virginia
This panel will consider the symmetry and consistency of free speech norms in higher education. Academic norms for free speech are essential to promote the free exchange of ideas. Students and professors must be free to engage with mutual respect while drawing a line at harassment. But has academia failed to recognize consistent speech harassment distinctions? Have there even been decisions that turned on the identities of the group involved?
Featuring:
Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Jay Edelson, Founder & CEO, Edelson PC
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Marcella Burke, Founder and Managing Partner of Burke Law Group PLLC
Recent high-profile incidents at law schools have raised questions about the scope of academic freedom for faculty and freedom of speech for students and faculty. At the suggestion of its Strategic Review Committee, the Council of the ABA's Section of Legal Education and Admissions to the Bar, which is the primary accreditor of American law schools, has put out for comment a proposed new accreditation standard, "Standard 208, Academic Freedom and Freedom of Expression."
As the Council describes the core concern behind the proposed standard: “Effective legal education and the development of the law require the free, robust, and uninhibited sharing of ideas reflecting a wide range of viewpoints. Becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence-based arguments. Concerns about civility and mutual respect, however, do not justify barring discussion of ideas because they are controversial or even offensive or disagreeable to some.”
The Freedom of Thought Project has assembled a virtual panel to help illuminate discussion of various questions implicated by the proposed standard. Among other topics, the panel will consider the rationale for the standard put forward by the Council as well as the likely efficacy of the standard. It will also consider the role of accreditation standards in supporting freedom of thought at law schools.
Featuring:
Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School
Daniel R. Thies, Shareholder, Webber & Thies PC
Prof. Joshua Kleinfeld, Professor of Law, Northwestern University Pritzker School of Law
Moderator: Hon. Carlos G. Muñiz, Chief Justice, Florida Supreme Court
To register, click the link above.
In the second part of this interview, James Burnham and Jonathan Mitchell discuss areas where conventional wisdom can be challenged and how he has sought to shift the Overton window in legal discourse. Should legal doctrine eclipse constitutional and statutory text? Join us for a sweeping discussion on equality doctrine, judicial review limitations, private civil enforcement, and more.
A panel of experts from a variety of political perspectives will discuss the range of briefing and arguments in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton.
Featuring:
Ryan L. Bangert, Senior Vice President, Strategic Initiatives & Special Counsel to the President, Alliance Defending Freedom
Prof. Julia D. Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Ganesh Sitaraman, New York Alumni Chancellor's Chair in Law, Vanderbilt University Law School
Prof. Zephyr Teachout, Professor of Law, Fordham Law School
Moderator: James M. Burnham, President, Vallecito Capital, LLC
In June of last year, the Supreme Court held that consideration of applicants’ race in admissions decisions of Harvard and the University of North Carolina violated both the Equal Protection Clause of the Constitution and Title VI of the 1964 Civil Rights Act.
But what are the implications outside of university admissions? How might this decision affect the interpretation and enforcement of federal laws against discrimination in employment, contracting, and other business practices?
Please join us for the first in a series of webinars, as we consider the larger implications of Students for Fair Admissions for employees and businesses.
On February 12th, our panelists will consider the continuing relevance of voluntary affirmative action plans under Weber and Johnson, the risks of adopting "diversity" commitments or pressuring outside contractors on diversity metrics, and newer defenses like asserted First Amendment interests in the consideration of race.
Featuring:
Jason C. Schwartz, Partner, Gibson Dunn & Crutcher
Jay Edelson, Founder & CEO, Edelson PC
Stacy Hawkins, Professor of Law, Rutgers Law School
Jonathan Berry, Managing Partner, Boyden Gray PLLC
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit
The Department of Justice has just released new Draft Merger Guidelines. What are the implications - not just for how the Draft Guidelines might affect economic questions, but also for freedom of thought and the rule of law? In this afternoon session, Assistant Attorney General Jonathan Kanter and Principal Deputy Assistant Attorney General Doha Mekki will discuss these issues, the development of the Draft Guidelines and what comes next.
Featuring:
Hon. Jonathan S. Kanter, Assistant Attorney General for the Antitrust Division, U.S. Department of Justice
Doha Mekki, Principal Deputy Assistant Attorney General, U.S. Department of Justice
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: James M. Burnham, President, Vallecito Capital, LLC
Judge Gregory Katsas and Ashley Keller sit down for a wide-ranging discussion of his career as a conservative plaintiff’s lawyer, how he thinks about corporate rights and corporate power, and what Citizens United might say about competing First Amendment interests of corporations and human citizens.
In the second part of this interview, Matt and Prof. Kleinfeld discuss the roots of authoritarian trends we should be worried about in the United States and debate how ideological attitudes among few powerful elite have power over our cultural institutions and way of thinking.
In Part 1 of Open Minds with Matt Stoller, we hear about how Matt's formative years shaped his interest in economics and government. Matt tells us about how he thinks about politics in a way that bends categories and how antitrust relates to contemporary problems.
Prof. Randy Barnett joins Prof. Joshua Kleinfeld to discuss how his life experiences have informed his libertarian convictions. Along the way, he has rubbed shoulders with some of the giants in Libertarian political philosophy and made significant contributions to the legal discourse - with over 24,000 citations. Now among the most highly regarded libertarian legal academics, Prof. Barnett considers how libertarian premises might be refined to address current institutional culture war challenges.
Finally, we turn to the present moment and consider the current challenges to American free speech and culture. How does cancel culture contribute to professional blacklisting at law firms and universities? Professor Volokh tackles this issue and addresses the role of social media companies in restricting speech and participating in canceling.
What are the fundamentals of how free speech law works and what are the outer limits of free speech protection? Is it constitutional to allow voters to to wear a Trump hat while casting a ballot? Tune in to hear Professor Volokh's perspective.
What made Professor Volokh the independent and influential thinker he is today? It began with an unusual childhood and education. He discusses how his early years shaped his career path, how he has developed his approach to law and doctrine, and which major justification of free speech most resonates with him.