Few scholars have led a life as varied as Eugene Volokh’s. Born in the Soviet Union in 1968, Volokh immigrated with his family to the United States at age 7. A prodigy, he entered the University of California at Los Angeles at 12 and graduated at 15 with a degree in math and computer science. At the same time he contributed to the family software business, which became very successful thanks in large part to Eugene’s programming skills.
In his 20s, interested in new challenges, Volokh went to law school, starting on a path that would eventually lead to clerkships with U.S. Supreme Court Justice Sandra Day O’Connor and the libertarian-leaning 9th Circuit Judge Alex Kozinski. Since 1994 he has taught law at UCLA. As a professor he has achieved not just a strong reputation among his peers, thanks to his scholarship on subjects ranging from cyberspace law to the Second Amendment, but a considerable following outside the legal profession as well, thanks to The Volokh Conspiracy, a consistently interesting website he launched in 2002.
(It was originally called The Volokh Brothers, adopting its present name after the roster of bloggers extended beyond Eugene and his sibling Sasha.) On their blog, Volokh and his collaborators, most of whom share his generally libertarian orientation, cover a wide range of legal and political issues, from the Supreme Court to the Middle East.
reason.tv producer Ted Balaker sat down with Volokh in December for a wide-ranging discussion about the state of civil liberties in the United States today. For a video version of the interview, go to reason.tv/video/show/eugene-volokh.
reason: Do threats to free speech these days come mostly from the left or from the right?
Eugene Volokh: There are some of each kind. There are also quite a few that come from no side at all. They come from government officials who are busy pursuing whatever goals they might have and just pay no attention to free speech. Even on issues where you’d think there might be mostly left-wing attempts to restrict speech, such as speech that’s allegedly racist or allegedly biased against particular religions, if you look at the polls, it turns out that liberals and conservatives, Democrats and Republicans, have pretty much the same percentages supporting speech and supporting restrictions.
Likewise, if you look at judges, especially Supreme Court justices, the ones who take a pretty broad view of free speech come from both the left and the right. The recently retired Justice Souter on the moderate left, and Justice Kennedy and Justice Thomas on the center-right and the right, all take a very broad view of free speech. On the other hand, justices who have a narrower view of free speech have also come from the left and the right. Chief Justice Rehnquist and Justice O’Connor took a relatively narrow view, still fairly broad but relatively narrow compared to the other justices. But so does Justice Breyer, who was a Clinton appointee and a moderate liberal.
It does turn out, though, that if you look not at the voters or the justices but at the backers—the intellectual, academic, and institutional backers of some restrictions—there is something of a liberal-conservative divide. For example, campus speech codes seem to be backed by a combination of mostly liberal university administrators and professors, based partly on a nonpolitical desire to suppress stuff that causes a mess and causes a fuss. This isn’t to say that most liberals support campus speech codes, but most supporters of campus speech codes are liberals.
There are also attempts to restrict speech from the right, including speech with sexual themes. Generally speaking, it’s more conservatives than liberals who favor giving government the broad right to fire government employees for their speech, including whistleblowing speech. So it depends on the particular controversy.
Let me give an example of something that people haven’t much noticed. In child custody cases, when courts decide which parent gets custody, the standard is the best interests of the child. And there are quite a few cases in which the judge says, more or less, “This parent is more religious than the other parent, and it’s in the best interests of the child to be raised in a more religious environment. Therefore we’re going to give custody to the more religious parent.” Or sometimes, “We’re going to bar this parent from saying something that we think is against the child’s best interest”—bar a parent from saying racist things, or bar a parent from saying pro–gay rights things, or bar a parent from saying anti-gay things, especially when the other parent turns out to be a lesbian.
You might say, “Well, it’s conservatives who are trying to suppress atheist speech, and it’s liberals who are trying to suppress, say, anti-gay speech.” But what really seems to be going on is that judges say: “All we care about is this legal standard, best interests of the child. Free speech, religious freedom, separation of church and state—we’re not going to pay any attention to any of that. We’re just fixated on our daily job, which is to apply this standard.” And I think that’s true with regard to a lot of speech restrictions. It’s often government officials, whether judges or prosecutors or administrative officials, who just don’t pay any attention to free speech. It’s not about politics to them. It’s about getting the things they want done notwithstanding any constitutional constraints.
reason: As Americans, we fancy ourselves defenders of free speech, regardless of whether we personally find it offensive. It sounds like we’re not quite living up to that standard. How well are we doing?
Volokh: I think most Americans support free speech. They just have different visions of what speech should be free. I think even libertarians recognize certain kinds of speech ought to be restrictable—death threats, for example. And one can support free speech but take a narrower view or a broader view. If you look at the views of American citizens to the extent that they’re polled on these subjects, it turns out that there’s pretty broad support for protecting even speech that is seen as extremist, racist, or harshly anti-religious. There’s broad support for protecting it. There’s also broad support for restricting it.
reason: Would you say the First Amendment enjoys more popular support and more real-world protection than other amendments in the Bill of Rights?
Volokh: It’s very hard to compare the relative force of various constitutional amendments, in part because they’re written in different ways. Many people say, “The Fourth Amendment is not being enforced enough.” But the Fourth Amendment does not prohibit searches and seizures; it prohibits unreasonable searches and seizures. Built into the Fourth Amendment is the notion that some searches and seizures are permissible, and lines need to be drawn between what’s reasonable and what’s unreasonable. Many judges take a view that a wide range of searches and seizures are reasonable. So is the Fourth Amendment being enforced less strictly than the First Amendment? It’s hard to say. It may just be that it’s written less strictly, so it ends up authorizing a lot of government action.