Preet Bharara:

From Cafe and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara.

Suzanne Nossel:

There obviously are some circumstances in which speech can cause harm. At the same time, I also think this notion of speech being harmful has become very elastic and expansive in problematic ways.

Preet Bharara:

That’s Suzanne Nossel. She’s the CEO of PEN America, a nonprofit organization that “stands at the intersection of literature and human rights to protect free expression in the United States and worldwide.” PEN is known for its association with the world’s most celebrated writers. Founded in the 1920s, its first members included Willa Cather, Eugene O’Neill and Robert Frost. In recent years, it has supported and honored authors like Margaret Atwood and Salman Rushdie. So it’s not surprising that Nossel and her team have been in the front lines of the fight against book bans, which are on the rise in school districts across the country. I spoke with Nossel about those bans and the people behind them, but we also had a broader discussion about the state of free speech in the United States, and we broached some sensitive questions like, does the political left have a free speech problem and can the value of free speech coexist with other progressive values like diversity and inclusion? That’s coming up. Stay tuned.

Now, let’s get to your questions. This question comes in a tweet from Twitter user @DocEgonSpengler. He writes, “I realize I’m getting way ahead of things here, but if Trump is convicted in the classified documents case, will Judge Cannon be in charge of sentencing him? Could she be required to sentence him to prison time and/or if she doesn’t, can the government appeal?” Well, Doc, you’re absolutely right. You’re getting way ahead of things here. We don’t even have a final trial date set. Donald Trump, even though you might have strong feelings about his guilt or his innocence is innocent until proven guilty, the presumption is there. All jury trials are difficult. You never know. There’s no such thing as a slam dunk. Although as I have said before on the podcast, increasingly, I think it’s a strong case and this tape that we’ve also talked about and we’ll talk about again is pretty strong evidence of Donald Trump’s state of mind.

Now, if he does get convicted on one or more accounts, he’s subject to prison time. Your question about who does the sentencing would indeed be Judge Cannon if Judge Cannon remains the judge presiding over the matter, presiding over the case, and ultimately presiding over the trial. That’s how it works. The district judge who oversees the trial is responsible for the sentencing. That makes sense of course because that’s the person, the judge who presides over the trial, who has seen the testimony, who has seen the applications by the defense and by the prosecution, best understands the facts, best understands the law as applied to those facts and is in the best position to try to impose a just sentence.

Now, when you ask, could she be required to sentence him to prison time? The answer to that is no. None of the counts that Donald Trump is charged with carry a mandatory minimum sentence. As you sometimes have with certain kinds of narcotics offenses or firearms offenses or terrorism offenses, none of these counts. The obstruction counts and the willful retention of document counts have mandatory minimum. So it’s possible that Judge Cannon may not sentence Trump to jail time or much jail time. Whatever you think of Donald Trump, remember, this would be his first conviction unless he’s first convicted in the Manhattan DA’s office case, he’s an elderly person, and the sentencing guidelines, which have been around for a few decades are no longer mandatory. So there’ll be a calculation made. There’ll be a pre-sentence report that will suggest a range of sentences if Donald Trump goes to trial and is convicted, but the judge is not bound by that.

Now, as for the question of the appeal by the government, as you all may know, if Donald Trump is acquitted, there is no appeal because double jeopardy applies. On the other hand, in certain circumstances, depending on how egregiously the government finds, there was a downward departure in the sentencing. For example, if the sentencing guidelines called for six or seven or eight or nine years in prison and the judge decided no jail time at all, if the government can make a showing to an appellate court that it was procedurally and substantively unreasonable given the circumstances of the conviction, they can appeal and it’ll be up to the appellate court either to maintain the sentence or remand it for a different sentence.

This question comes in a tweet from Twitter user, @ramijames who asks, “Doesn’t the latest recording from Trump at Bedminster give the DOJ probable cause to search there #AskPreet.” Of course, you’re referring to the recording that the government has actually had for some period of time. In fact, it’s recited and the partial transcript is contained in the indictment that was unsealed some weeks ago. What’s new this week is that CNN and various other outlets in the media have obtained the actual audio recording of what the government has already had in it possession and has already recited in the indictment.

Now, this question about why the government didn’t search Bedminster has arisen from time to time, and Joyce Vance and I talked about the recording generally and what it means and how powerful it is on the Cafe Insider this week. Just because there’s a recording that’s finally been released to the public, doesn’t mean you have automatic probable cause to search a particular premises because the freshness of the PC, as prosecutors will say and as judges will say, may not be there. So the conversation we’re talking about occurred in the summer of 2021, the indictment came two years later. The leak of this audio recording came even after that.

There are some questions, I think they’re legitimate about why the government didn’t seek to search Bedminster when there’s clearly some evidence of misconduct there and maybe mishandling of documents there in addition to Mar-a-Lago. We’re just speculating at this point, but it seems to me, and I think the best conclusion is that at the time that the government was putting its case together, it did not have recent enough evidence that particular documents or particular contraband was located in particular spots at the premises at Bedminster. But hopefully, we’ll get more facts and we’ll find out what the true story is.

This question comes in an email from Maureen who writes, “I missed the days when I did not know what Title 18 US Code 2384 represented, but here we are. Question, did the Congress actually write and pass all of these 18 USC codes? It’s hard to imagine that they did so given the near stalemate of late. If not Congress, where do these codes come from?” Maureen, thank you for reminding everyone about 18 US Code 2384, which of course is a statute relating to seditious conspiracy, which has been in the news lately because a number of people have been convicted on that charge, which is rare in the history of prosecutions in this country. So notwithstanding your skepticism, Congress actually did write and pass all of these statutes. By definition, if it’s a statute, a federal statute, it was duly passed by Congress and signed into law by the President of the United States at the time.

In fact, in the federal system, to be convicted of a crime, you have to have violated a particular statute written and approved and passed by Congress. There’s no such thing as a common law criminal violation. So people have to know with particularity and have notice as to what actions and what conduct can be penalized by criminal sanction, by indictment, by trial and by conviction in the court.

Now, when you say it’s hard to imagine given the stalemate of late, how all these laws got passed. Well, many of these laws have been in the books for a very, very long time. This is just a conspiracy. Some of the other laws you’ve been hearing us talk about on the podcast over the last number of years, including 18 US Code Section 371, which relates to conspiracy, 18 US Code 1001, which we talk about all the time, which relates to the making a false statements to law enforcement, wire fraud, mail fraud, the various espionage counts that have been leveled against Donald Trump, those are all statutory, they’ve all been passed by Congress. I’ve also found in my time as a prosecutor and also as a Senate staffer that when it comes to criminalizing things, there often is not as much of a stalemate. A debate for a different day is whether or not there are too many criminal statutes and whether or not we in this country have over criminalized conduct.

From time to time, the Supreme Court says, “Yeah, Congress has.” And invalidate a law as being vague, and that’s happened recently. Or they will sometimes say a law is unconstitutional, and that may be the fate of some of our gun possession laws, as we’ve also talked about on the podcast and on the Cafe Insider. Thanks for your question. I’ll be right back with my conversation with Suzanne Nossel.

My guest this week is Suzanne Nossel. She’s the CEO of PEN America, an organization dedicated to protecting free speech at home and abroad. Before she got that job, she worked on human rights issues at the highest levels of American foreign policy, serving as the Deputy Assistant Secretary of State under Hillary Clinton and as the deputy to the UN Ambassador under Richard Holbrooke. Suzanne Nossel, welcome to the show.

Suzanne Nossel:

Thank you, Preet.

Preet Bharara:

It’s good to have you. There are a lot of things we want to talk about with you, including issues of free speech, book bans that have taken hold in lots of places in the country. But I thought I’d start first by asking you a couple of questions about human rights because you spent some time in your career, obviously, on behalf of the United States and also otherwise thinking about and caring about human rights. My question to you is, so here we are in 2023, is it your sense that the United States in some ways cares less about human rights around the world than it did or at least appears to care less about human rights than it did? And if so, what the reason for that is. Does it have to do with pragmatism? Does it have to do with the fact that in some places in the world they think the United States is compromised on human rights? What do you think the state of play is at the moment?

Suzanne Nossel:

Yeah, sure. Look, I think what you’re alluding to are things like Secretary of State Antony Blinken going to China and giving just a one sentence on human rights in his two pages of readout on his meetings there, or Modi coming to Washington for a state visit with scarcely a mention of democracy and human rights during his whole trip, notwithstanding really grave concerns about backsliding in India. He’s got his number one opponent in jail on politicized charges situation in Saudi Arabia. Biden had called Saudi Arabia a pariah Nation after the butchering of Jamal Khashoggi in 2018. Last summer was the fist bump and now assiduous effort to cultivate the Saudis and seek normalization of their relations with Israel.

I think there are really three elements behind this. I think it is not so much a turning of the US’ back on human rights or an indifference toward the cause. I actually think Biden does care about these things. I think he recognizes human rights values as part of what’s distinctive in US leadership, but I think they’ve not found their footing in terms of how to project that into the world. It’s because the main channel over the years that we’ve looked to sort of high profile pronouncements, human rights, brinkmanships, forceful statements during state visits, during foreign travel when dealing directly with foreign interlocutors, I think that has become a lot more challenged. I’d say it’s three reasons. One, the US is in a geopolitical competition that has intensified enormously. They’re vying with the Chinese, they’re seeking to sustain and in some cases gain the support of all sorts of middle powers. It feels very zero-sum. I think the perception is it’s difficult to insert human rights into that equation. They need the Philippines, they need India very badly, they need Indonesia.

I’d say a second piece is what you alluded to, which is the diminution, the tarnishing of the US’ reputation on human rights. I think the third piece is that these countries really increasingly won’t tolerate what they see as being lectured by the United States. They’re bigger now, they’re proud, and it can almost backfire in that it gets cast as a kind of hegemonism or imperialism on the United States’ behalf to address the issues frontally. So I think you have to get more creative and there are some new tactics that have been developed that I think are promising and that can form the basis for a potent US human rights policy going forward.

Preet Bharara:

That first element, you mentioned that things have just gotten more difficult and the US needs these other countries, India in particular as it competes with China, confronts China, it just seems odd to me not being an expert on foreign policy or international relations, that it’s more difficult now and the channels are narrower now than during the Cold War when tensions between the United States and Russia and Russia’s allies and orbit were much more profound, even then we see at this moment. How can it be that as time has gone by, it’s tougher now? I guess you’ve answered that by talking about some of those other elements, but is there anything else?

Suzanne Nossel:

Look, I was contrasting it really with sort of the state of affairs I’d say since the ’80s and ’90s when the US was in a period of dominance globally that was almost unchallenged and could throw around its weight more liberally with less fear of repercussion. That didn’t mean it was ever easy to bring up these issues. It always was contentious.

In my time in government, you’d always have a back and forth with the regional folks in charge of the relationships about where human rights belonged, and they typically would not necessarily want to bring them up because it can be an irritant, it can cause friction, and their job is to smooth out relations. But I think now, certainly as compared to the last few decades, maybe not so much the Cold War period, there is a real intensification of this competition.

The Cold War era, of course, human rights was very much a part of what the US was selling around the world, an open and free society, of course, checkered and with many serious hypocrisies and problems of our own. But that was a big part of the message. I do think it remains a significant component of the US’ global diplomatic appeal. It’s why people want to immigrate to this country, why asylum seekers want to be here, why students want to be here, why entrepreneurs want to set up new businesses in the United States. And so I think we need to continue to build on that. We can’t turn our backs on that, and we have to find new ways to project those values internationally.

Preet Bharara:

What are some of those new tactics that you alluded to?

Suzanne Nossel:

Well, some of the things are, you know, we’ve done a relatively new set of mass jurors involves individualized human rights sanctions on perpetrators of abuses. So people within governments who are actually personally responsible for sending dissidents to jail for torture. For example, the camps in Xinjiang, maintaining those and disciplining individuals within those, holding those people accountable so that they can’t use the international banking system, they can’t get visas.

Preet Bharara:

So like the Magnitsky Act for example?

Suzanne Nossel:

Yeah, Magnitsky style sanctions. When they’re done globally in particular, it can really constricts someone’s lifestyle and I think be both a way of holding people accountable and a powerful disincentive. I think the role of dissidents and exiles is absolutely crucial and how we can better support them. And that’s something at PEN America that we’ve pivoted toward more because more of our writers who we’ve been working with in countries have had to flee. And so how we keep their voices alive on the global stage, even from exile. That’s easier to do now with technology.

Preet Bharara:

Do you think Prime Minister Modi in particular, given how his country’s population now is the largest in the world, they’re trying to go from being the fifth-largest economy to the third-largest economy, given the dynamic between the United States and China, that Modi and India feel particularly immune from lecture?

Suzanne Nossel:

Yeah, I think he does. I think he senses that the United States needs India as a counterbalance in Asia against China, that it very much wants India as part of its collaborative sphere of influence working with other countries. I do think that puts leverage in his hands and that is how diplomacy works, a big rising country with which you have some affinity and some ability to collaborate becomes a very central relationship.

Preet Bharara:

Going back to your current position as the CEO of PEN America, for people who may not be familiar, could you explain to folks what PEN America is, what it does, what its origins are?

Suzanne Nossel:

Sure. We’re actually a 100-year-old organization. It was founded in-

Preet Bharara:

Happy Birthday.

Suzanne Nossel:

Thank you. It was last year, but still celebrating. We were founded after World War I by a group of writers initially in Europe, but right away picked up in the United States who believed that writers had a role to play in preventing future wars, and that if you could create almost a kind of united nations of writers that could be a force of enlightenment and to bridge across ideological and geographic divides. They developed a charter focused on the defense of freedom of expression, and it was quite a prescient charter. They worked on it for a while and it was finalized in 1948, and it talks about the defense of free expression, but also a duty to avoid and put down all hatreds. And so it has this notion that you’re not just defending open expression, but you do recognize what can be dangerous in expression, and you have an obligation to contend with that as well.

Over the years, the organization has been a home for leading luminary writers. If you look back at our, we have an archive on our website of our board of directors, over the years, and it’s just extraordinary. You look at who was on in the ’80s, it’s Miller, Baylor, Sontag, Bellow, Bashevis Singer, all at the same time. You can just imagine what these meetings were like. I hear they were very contentious often. And over the years, we’ve developed into, especially I’d say in the last decade, into an organization that has sort of two interlocking arms where an organization that both celebrates and defends freedom of expression worldwide.

And on the celebration side, we give out the United States’ most comprehensive program of literary awards. It’s been called the Oscars of Books now by Vanity Fair and the New York Times. It’s a really wonderful ceremony that we do every March. We do a big literary festival where we bring in writers from all over the world and whole range of public programs all over the country. We have offices in Washington and Los Angeles in 10 chapters in cities like Tulsa, Birmingham and Miami. And then we have a very robust freedom of expression defense arm that works both globally and here in the United States.

Globally, heart and soul of it is work on behalf of individual imperiled writers, people who are jailed and persecuted because of expressing themselves. We had 311 writers we documented were imprisoned in 2022 for the crime of saying or writing their piece. And so we track those cases. We advocate on behalf of those individuals’ freedom. We have a pretty good track record of getting them freed. And then we also tackle policy issues like censorship, China’s global reach into free societies. We did a big report on cultural repression as both a motivation and a method of the war in Ukraine, the effort to erase a distinct Ukrainian culture. And then here in the United States, we address press freedom issues, disinformation, online harassment as a free expression issue. And then we’ve really become deeply engaged in a whole host of threats to free speech in the realm of education over the past, I’d say five or six years.

Preet Bharara:

You have had to focus on, as many people in this area have, on the conflict between multiple values that are important not just in a democracy but anywhere. Often when you’re involved in the issue of free speech and the defense of free speech, the question is what is the degree to which you defend that? And there’s a conflict that arises between the fight against bigotry, the fight for inclusion on the one hand and the defense of free speech on the other. I’ve noted that you’ve talked about it in a fairly interesting way. How do you describe and think about that age-old conflict?

Suzanne Nossel:

Yeah. Look, I think a lot of our free speech debates in the current era sort of derive from that very conflict, from the drive to bring about a more equal and inclusive society and deal with the lingering legacy of systemic racism and gender bias in this country. If you think about it, we implemented most of formal equality decades ago, equal pay, equal access to education. Obviously, it’s all imperfect, but those laws are on the books, and yet we recognize that we still wrestle with discrimination in every sphere of society and drastic inequalities that can only be explained by perceiving and recognizing, acknowledging the role of bias and dictating those outcomes. And so in my view, to root out that level of lingering bias, which really goes to kind of hearts and minds in how we perceive each other, the stereotypes that inhabit our brains, what comes to mind when we read a certain name or meet a certain person, those issues unavoidably, I think do implicate speech. It’s how we talk to each other, what we hear when someone else speaks, what assumptions we make, what life experience we project onto them.

And so the conflict between this phase of the drive for racial and gender inclusion and free speech, I think is understandable. A lot of my work focuses on explaining how these values are not actually fundamentally at odds with each other and how we can both bring about a more equal and inclusive, whether it’s a campus school or a society at large without compromising robust protections for freedom of speech. I think that’s an imperative. I mean, these are both values that are so elemental to our society here in the United States. And so we have to find a way for them to fit together. I think it can be done.

I’ve written in my book, Dare to Speak: Defending Free Speech for All, I’ve set out 20 principles for how to make this work. It includes principles for when you’re speaking, when you’re listening, and when you’re thinking about free speech debates and policy issues. It’s things like for speakers, exercising a kind of conscientiousness with language so that you are thinking about who’s in your audience. You’re not just assuming everybody you’re talking to has a background just like your own. You’re recognizing that there may be people who have very different perspectives and you frame your words accordingly or having the respect to talk about people in the terms that they would choose. If they want certain pronouns, if they don’t want what they see as an anachronistic designation being used for their racial group, to recognize and respect that and avoid creating unnecessary friction through your words. Actually, it’s helpful as a speaker because you can get your point across. You don’t sort of get bogged down in all the tensions that can arise when you use words more loosely.

Preet Bharara:

Is there a rational basis putting aside the existence of the First Amendment in this country, but as a policy matter in democratic republics, is there a rational basis and a reasonable basis for banning hate speech?

Suzanne Nossel:

I think the premise of bans on hate speech is that they are a tool to tamp down and eliminate hateful attitudes. That if you ban the speech, sort of the sentiments will eventually dissipate. I think what the evidence shows in environments where that has been tried is that it doesn’t work that way. On the contrary, it can provoke a fierce backlash that sends the speech sort of underground, I mean, in our modern iteration to whether it’s the dark web or shadowy arenas where people organize outside of view. It can provoke also a very pitched and fierce backlash where people feel like their speech is being suppressed and they are even more determined to get it across or to expound their worldview, not just through speech, but through action. And so I think the question is in every setting, I don’t think that’s an absolute that it can never work.

I do think on social media that the balance that… It’s a very kind of fraught balance on each of these platforms about how much speech is allowed, but they all tamp down on hate speech pretty heavily. I think it does create an environment that’s just more habitable. It would be miserable if hate speech were allowed to flow freely in a online social media forum. And so I think those restrictions are legitimate. I’m more hesitant about restrictions imposed by governments because I think on balance, if you give government the power to police speech, for example, in a more intrusive way than our first amendment allows, that by and large they will exercise that power in a self-serving way. So if you gave, for example, Donald Trump the power to suppress hateful speech, well, what would be hateful speech in his mind? I think it’s the speech of his journalist, critics and many other detractors.

Preet Bharara:

The reason I ask the question about hate speech obviously, and I know you’ve debated this, is that there are certain bans on hate speech in thriving democratic republics including Germany and Canada. And so I guess on the one hand, the question is, does it improve matters? Does it improve attitudes? That’s one question. Maybe it does, maybe it doesn’t. On the other hand, does it do something pernicious? I think as you’ve acknowledged… By the way, just so the audience knows I’m not advocating for any of this, I’m just asking the question. Canada is a pretty thriving pluralistic society and the bans on hate speech, do you think they’re doing significant harm or neutral?

Suzanne Nossel:

Yeah. Look, I don’t think they do significant harm. These countries are all democracies. They all allow pretty wide berth for freedom of speech. There are issues that arise, for example in Europe where the prohibitions on hateful speech on the basis of religion get used to suppress debate on issues of Israel Palestine, for example. Or a woman who wants to challenge her abuser in the context of Me Too Movement gets accused of defamation and hate speech for calling him basically a pig. And so there are problems that arise, and it’s impossible of course to do a kind of controlled study.

When I was looking at my book, I looked at the rates of anti-Semitic incidents in the United States and in Germany and how they had evolved over time and found that antisemitism had increased its manifestations in both places at almost exactly the same rate, notwithstanding the ban on Holocaust denial in Germany, which you can understand historically why they have that ban in place, but is it really doing the work of helping to eliminate antisemitism? I think that remains an open question, but I think it’s a fair question and a question that we should continue to debate.

I think here in the United States, our First Amendment regimen to me is something we should be very hesitant to tinker with. It doesn’t mean that all other countries need to comply with it, but I think if we were to lower the standard here, people tend to, I think imagine if we were to police hate speech, it would be some combination of a Thurgood Marshall and maybe Barack Obama and a sage jurist who would do this line drawing. But of course the reality is it would be judges all over the country with all kinds of political dispositions. It would be today’s supreme court. I think you have to ask yourself where those lines would be drawn and would it sweep up speech that you believe is legitimate, is not hate speech, is bonafide criticism, is holding people accountable, is speaking truth to power and all of those things that we value.

Preet Bharara:

Yeah. I mean, the worry would be as you’re describing that once you open the door to that, I don’t know how this works in Germany and Canada and other places, but once you open the door to that in the United States, you would then have many, many constituencies clamoring for the declaration of certain things being hate speech or certain groups being protected, and where do you draw the line? Is that the problem?

Suzanne Nossel:

Yeah, I think that’s a big part of it, that those provisions, and we see this on social media, I’m also a member of the Meta Oversight Board, and what is considered a slur on the platform is contested territory. We have debates right now raging over what speech is harmful, speech on transgender issues that people consider harmful in both directions. People are very concerned about how gender is treated and dealt with and what ideas and narratives are accessible to children. They believe it can be very harmful. And then on the other hand, the transgender community believing that certain debates that implicate their identity are profoundly harmful. So that would all become sort of within scope if we had hate speech prohibitions and we were more aggressive in policing harmful speech. I have no doubt that you’d have pitched battles over a whole range of issues about what ought to qualify. So it may be partly that we’re a more diverse society than some of these other places where these bans seem to have been in place for a long time without that much contestation.

Preet Bharara:

Do we get offended too easily these days?

Suzanne Nossel:

I mean, I think so. Look, I think-

Preet Bharara:

Be careful.

Suzanne Nossel:

… awareness of offense-

Preet Bharara:

Because your answer may offend.

Suzanne Nossel:

… and what can be offensive… No, I know. I mean, that’s always the risk and it’s sort of part of my daily work is thinking about what I say is going to be received or maybe misconstrued. I think that it is a worthy thing that we now are more cognizant of the ways in which speech can wound. Some years ago when I started writing the book, one of the premises within the free speech movement, if you will, it was that speech, you don’t want to acknowledge that speech can cause harm because in so doing you’re opening up the door to censorship, and I thought this is not quite right, it doesn’t ring true. There obviously are some circumstances in which speech can cause harm, someone who is subject to pervasive stereotyping or slurs throughout their whole life, that is going to, and this has been documented in psychological and even medical studies, that that can cause both physiological and psychosocial harm. It can impair academic performance. That’s real. I think we have to own up to that.

At the same time, I also think this notion of speech being harmful has become very elastic and expansive in problematic ways and that any offense we now tend to equate with harm. People believe that any offensive speech you encounter is a cause of harm. I think that’s mistaken. I think in living in a diverse society, we need to engage with others, we’re going to be offended, they’re going to be things that bother us, and we need to develop the skills and the resiliency to hear that stuff out, to respond to it, to process it, to talk about it with our friends and family if we were upset and we need to get over it, but without sort of casting it as this irreparable harm, something that is harmful because that does open the door to the idea that society or government ought to step in and stop it from happening. I think that’s where it gets very problematic because of how that power tends to be exercised if we afford it to those in positions of authority.

Preet Bharara:

Yeah, I was going to ask you about that, and I was going to quote from a recent interview that you did on this issue that credibly you gain more by acknowledging there are some harm. You said this in a recent interview, “And so I think for a free speech defender, we’re more credible if we acknowledge that those harms do exist.” But then you go on to say, “But we also recognize that those harms can be and are often exaggerated, projected, presumed.” I was really struck by the verb “presumed”. What do you mean by that? Who’s doing the presuming and what are those presumptions?

Suzanne Nossel:

Yeah. I mean, when I talk about presumed in that context, what I’m thinking about is people are aware of our history of racial prejudice in this country, of gender bias. And they’ve become, I think in a constructive and important way, much more cognizant of the experience of others. I think of young people where they’re not just oblivious to the fact that there are students of a different race who are in the minority in the classroom, they’re mindful of that. They may be paying attention to whether their students seem to feel free to speak up, can they make their views heard? Are they in imbued with a sense of belonging on the university campus? I think that’s a very good consciousness, and I’m impressed with young people because they do think about that and they’re much more mindful of that. I think important and necessary ways for our ability to live together in a diverse society.

At the same time, there can be this protective and I think well-intended impulse to sort of jump in and say, “What I heard would’ve offended that other person.” It’s not actually the person who’s supposedly offended who is speaking up. It’s sort of a third party who feels a compulsion to jump in. I think, look, in some instances it’s valid and they’re really speaking up for somebody who maybe for whatever reason, doesn’t feel they can make their voice heard. I think in other instances, frankly, they’re kind of projecting, they’re presuming, they’re wanting to demonstrate that they care, that they are cognizant of what’s going on, that they are skeptical.

Preet Bharara:

Are you about to use a phrase virtue signaling, Suzanne?

Suzanne Nossel:

Well, you used it, not me. We all virtue signal in some way in our lives. I think that’s a human instinct. We want to be well thought of. But I think it can become a kind of censorious instinct, and you see it online where people sort of chime in. We’ve been, at PEN, looking at the books and how books are released and instances where enormous controversy can erupt in relation to books, sometimes even before they are published. And you see all these people sort of chiming in online about a book they haven’t even read. Just weighing in support of a group that supposedly is depicted in a unfavorable light in this book. Sometimes the author is someone who’s part of that group. It’s a Black author, it’s a Latino author, or transgender author and yet the nature of the story sort of seems to cast a dark light and all these critics chime in online and it’s like, well, what is that impulse that you need to make yourself heard in relation to a book that you haven’t read?

Preet Bharara:

I’ll be right back with Suzanne Nossel after this.

Speaking of books, I want to get to the thing that I really want to talk to you about maybe more than anything else, and that is the rise of book bans. In the United States, it gets a lot of attention. You hear about it in all quarters, many different counties in the United States. Let’s begin with a basic question so we understand what the terms we’re using mean. When you or someone at PEN America says a book ban, what does that mean? What’s your definition of a book ban and what’s the scope of that issue in the country at the moment?

Suzanne Nossel:

Yeah, sure. So we had to confront this question about how to define book bans, and we define them as instances where a book that was previously available is taken out of circulation or availability, be that temporarily or permanently. And so if a book was on a sixth grade classroom shelf and a parent lodges a challenge and the book is taken away to undergo a review process at the school board, even if it’s eventually returned, we will call that a ban, although it may be a temporary ban. We have documented over the last couple of years more than 4,000 books banned here in the United States in schools, both school libraries and classroom libraries. It’s quite startling in that during my first few years at PEN, we dealt with book bans and I was actually surprised when I got to the organization that they still dealt with book bans. I thought it seemed so kind of anachronistic.

We dealt with a few a year. We’d usually write a letter to a school board or a library and ask that the book be put back on the shelves. Very often, that worked. It was something we sort of did with one finger, and now it’s become a weapon of choice in our culture wars, a tactic that has been embraced and endorsed and legislatively sanctioned in parts of the country. It’s really an alarming effort to suppress certain narratives. Overwhelmingly, the books that are targeted are by and about members of racial minorities or LGBTQ stories and narratives. And so it’s very clear sort of what they’re going after, what they’re trying to repress. It’s part of this really harsh tit-for-tat battle.

As we become a more equal, more inclusive, encompassing society, there are some elements that feel profoundly threatened and that are using these tactics as a way to push back. What’s so sort of alarming about it to me is just that the First Amendment gets trampled and forgotten and just absolutely sidelined in all of this. I am honestly shocked by how quickly in these communities, even politicians, governors of states like Ron DeSantis seem to be ready to resort to out-and-out censorship.

Preet Bharara:

I saw that you written somewhere, I think it was you, that in a country where we have so many young people obsessed with their screens and have access to pretty much everything and the full range of offensive and difficult and problematic, not only words and books, but also images, that the fact we’re worrying about books on the shelf of a school seems ludicrous. Do I paraphrase you relatively accurately?

Suzanne Nossel:

Yeah, no, I have said that. I mean, it’s a phenomenon I’ve observed in other contexts, which is that when people feel like the debate or the discourse or the information ecosystem is out of their control, they’re impulse to police small spaces intensifies. We’ve seen this sort of when it comes to kind of cancel culture, that there’s this intense impulse to sometimes purify, whether it’s the staff of a magazine or a small organization out of a sense that, particularly I’d say during the Trump administration, that hateful attitudes were running rampant in society writ large. And so in this little environment that we control, we’re absolutely not going to tolerate it.

I think that’s part of what is at work here. People sensing that their children are being exposed to all of this. It’s unavoidable in 2023 in the society we live in, with kids spending upwards of seven hours a day on their phones. And so books is something they can control. It’s a place where they can take a stand, where they can assert and project and signal their values publicly. That precedent, that mode has been introduced. I think people find it an appealing way to push back against a lot that seems really out of hand to them.

Preet Bharara:

I wonder how many parents there are who support and vociferously complain about particular books and have them banned, but don’t monitor the screen time of their children. Do you think there are such people?

Suzanne Nossel:

I’m sure there are, because honestly, monitoring the screen time is tough. It’s not as easy as filling out a one-page form and getting… You can’t get an app pulled from the store to go under review by some district board. It’s just a lot tougher and a lot more intrusive.

Preet Bharara:

Yeah. I guess what I’m getting at is a better understanding of why this is taking place more recently. I think you’ve written or said that something organized seems to be afoot. Who’s organizing it? Is it for political reasons? Is this really the thing that they’re targeting or is it a proxy for something else? I think you’ve suggested maybe it’s the latter.

Suzanne Nossel:

Yeah. It’s absolutely organized. There’s no question about that. I mean, we see these long lists of books that get passed around from community to community as the basis for objections. The language, the very language is one and the same, down to the typos and the syntax errors in the complaint forms that people are filing. So there’s no question it’s an organized movement, and I think it is motivated by a sense of anxiety and a kind of lashing out against cultural change. This is something that has surfaced time and again. If you look at the debates over book banning decades ago, it always kind of speaks to this idea that there’s a pure sort of untouched, idyll with children and that there are forces that are coming in to threaten that and bringing wrong-headed values and pernicious ideas and distorting kids’ identity, sexualizing them, introducing different notions of how to live your life in ways that are corrupting.

These movements, these organized groups like Mom for Liberty have sort of presented to parents the notion that you can fight back, that you can reclaim and take charge, and here’s a blueprint for doing it. I think for people that may feel sort of disempowered, may feel like there is a time gone by that cannot adapt to social and cultural change, that becomes appealing to be able to push back to join together with others in a movement.

To me, that’s a lot of what is at work here. In some instances, look, these are issues that we need to debate. What is the right way to talk about gender to very young children? I think that has to be up for discussion. There have been times on the left where I think there’s been an overly prescriptive approach that probably isn’t going to work in every community, but we all know, those of us who are parents or even growing up as kids, there are ways to deal with these things. You talk to the teacher, you talk to the principal, you have a meeting, you propose a different book. You don’t resort to legislation and bans here in the United States of America. And so that’s what’s so troubling here. It’s not so much that the debates are happening, it’s the tactics that have been introduced and embraced.

Preet Bharara:

Can you give some examples for the audience of particular books or the kinds of books that are sought to be banned? For example, can you explain why people want to ban the Diary of Anne Frank?

Suzanne Nossel:

Yeah. I mean, it’s because of a couple of scenes that involve her sexual fantasies and ruminations. This really long book that is about so much else. And so that becomes a lightning rod. We’ve seen that with Maus, for example, a new drawing. In some instances, it’s really this kind of outlandish cherry-picking of bits and pieces of books to find a basis to object. It really seems counterproductive because these works of literature are so widely recognized. And so it’s a real spectrum of books. I mean, there are some books that are quite explicit. They’re kind of young adult graphic novels that you can see why, if you open it up, you see, wow, this is pretty explicit. It’s not pornographic, it’s not something that is aimed to turn people on, rather they’re explorations of identity.

We hear persistently that some of these books, like for example, Gender Queer or All Boys Aren’t Blue can be lifesavers for certain kids. Kids who are outliers, whose identity is not accepted in their societies. They pick up a book like this and they can suddenly see that there’s somebody like them, that there’s a way forward. That’s why those books were written. They’re really kind of written for those kids and I think they play an important role. And yet you can understand why some parents, and particularly depending on the age range, might think that is very inappropriate. That’s something that needs to be up for discussion in communities. But then there are all sorts of other books where honestly the basis for objecting really seems completely spurious.

Preet Bharara:

Is it possible that we overstate the harm and perniciousness of these book bans? For example, you mentioned Maus. I recall reading that when that was banned in some school somewhere or some library somewhere, that it immediately went to number one on the bestseller list. And that these books, not like in the old days where the only place you can get a book is your library, that people’s efforts to ban books backfires and actually present some of these publications to a much wider audience. Any fairness to that argument?

Suzanne Nossel:

That happens only in the most limited of circumstances where it’s something like Maus that draws international headlines. Yes, you’re going to see a surge in purchases of that book, but by and large, these books that are being targeted are not at that level of visibility or recognition. Sometimes they’re first time authors, they’re authors who are making a living from this, and you don’t see that kind of surge when their book is banned. In fact, you see there are districts that are then reluctant to buy that book because they don’t want to spark controversy. The publishers have to think about how they handle that book, whether they sign that book, what the next book is from that author, because perhaps they’re not going to be able to sell it into Florida.

And so what we see is it can really harm and compromise people’s careers. Unfortunately, it would be nice if book banning kind of consistently backfired and you could count on that, but it really does have a repressive effect. Also, on just what books are greenlighted for publication, the publishers are under a lot of pressure because of these tactics and they sell big into places.

Preet Bharara:

Yeah. Do you think this is having a chilling effect on publishers?

Suzanne Nossel:

They’re very cognizant of it. I mean, I’ll tell you that. They run national businesses and they have distribution in Florida, in Texas. A lot of them rely heavily on the school market for children’s and young adult books. And so they can’t afford to ignore it. They’re very alarmed by it. That’s why Penguin Random House joined us in our lawsuit that we filed in Escambia County, Florida to challenge one of the most egregious patterns of book banning that we had seen. We’re talking with other publishers that really recognize that their business and also the values that they stand for, the basic fundamental freedom to read is at stake and eroding in our culture and that we need to push back.

Preet Bharara:

Well, you got ahead of me there because I was going to ask you about what you just mentioned because you know what we love on this podcast.

Suzanne Nossel:

A lawsuit.

Preet Bharara:

We love a lawsuit. We love a good lawsuit. Could you explain more about what the lawsuit is and what the basis is?

Suzanne Nossel:

Yeah, sure. I mean, unfortunately, the law on book banning is not great in this country. There’s only one kind of operative supreme court case, Pico versus Island Tree, which was a plurality decision. It’s kind of very split and fragmented reasoning in that opinion. And so we had to be thoughtful about where to file a case. But the fact pattern in Escambia County, Florida was just so egregious, more than 100 book removal sparked by a single individual teacher who filled out forms, handwritten forms, objecting to all these books, made clear she hadn’t read most of them, parroted language from objections filed elsewhere in the country. These books were immediately removed from the shelves.

Now, the standard practice from the American Library Association and the National Coalition Against Censorship is that when there’s a book challenge, the book should remain in circulation while the book is reviewed. If the disposition is ultimately to remove the book, you do it at that point, you don’t do it preemptively. They did it preemptively. They also had a district commission comprised of experts, a parent, a librarian, an educator charged with looking at and reading cover to cover each of the books that was challenged. That commission did its work and time and again said, “This book belongs on the shelves. This book has merit. It’s valuable for students, it shouldn’t be withheld.” And yet the school board persistently overruled them, deciding that, notwithstanding the opinions of their own designated experts, that these books were going to be taken away.

And so it seems to us to be just a very clear case on two fronts. We’ve challenged based on both the First and the 14th Amendment that these books are being discriminated against on the basis of viewpoint. The stories that are told therein, the ideas contained in these books are clearly the basis for the removals and withdrawals. Also, that disproportionately, the bans target books by authors of color and LGBTQ authors. And so that it is a form of discrimination against them and their readers on the basis of protected characteristics. I think that part of the suit is novel, but it really reflects what we see in terms of the pattern of book banning nationally where these groups are being targeted in a pinpointed way.

Preet Bharara:

Is PEN America an actual party in the lawsuit?

Suzanne Nossel:

Yeah, we are. As an organization of authors, we have associational standing to bring a lawsuit like this. We have a few of our member authors who are among the group of plaintiffs and also some parents, some students and Penguin Random House.

Preet Bharara:

You contemplate more lawsuits of this type?

Suzanne Nossel:

We’re looking at other suits and working with other teams that are doing the same. I think it’s extremely important. I mean, there’s always of course sort of some hesitancy in how is this going to come out and what are the courts like. But if we can’t sort of stand up for the First Amendment under these circumstances, and if we distrust our courts so much that we don’t believe these very fundamental rights are going to be vindicated, I think we’re in big trouble as a society. And so I think it’s really important to have these arguments both in the public domain and in the legal arena.

Preet Bharara:

Do you have any advice or counsel for parents in others in various communities where these issues percolate up?

Suzanne Nossel:

Yeah. Look, we have a lot of tools and materials and guidance on our website that we provide for parents and students who are trying to push back the best arguments to make, what has worked in other communities, how you can prepare for a school board meeting on one of these challenges. And so there is a kind of blocking and tackling, and we’re working with many groups at the local level and the state level to skill up local activists and parents because overwhelmingly Americans do not like book banning.

It doesn’t matter if you’re a Democrat or a Republican, the polls are consistent that people reject this tactic. And even Ron DeSantis has said that the claims of book banning are hoax. He doesn’t want to be seen as a book banner. Of course, he’s wrong about that and we have the proof to show it. But the fact that he doesn’t like this label, I think says something. The parents who’ve participated with us in this lawsuit say, overwhelmingly the response, and I think they were perhaps a little bit nervous, but has been positive from other parents. People are glad they’re standing up. And so we really encourage parents that once you step forward and speak out, others will follow. And you can make common cause and what is sometimes a silent majority can assert itself.

Preet Bharara:

I want to go back before we end to something you mentioned earlier that we talk about on the show, and I think sometimes gets lost in the mix when people throw around words like censorship and banning and free speech, the distinction between a ban or a restriction imposed by a platform like Meta or Twitter versus a ban or a restriction imposed by the government. We all sort of understand that because the First Amendment is written the way it’s written. But could you explain, not as a constitutional matter, but as a principled and pragmatic matter, why there’s such a big difference. How you can be somebody who advocates so strongly for free speech not being restricted by the government, but understand that on a platform that some would say is as powerful as a government restrictions are appropriate?

Suzanne Nossel:

Yeah. I mean, I try to be careful and only use the term censorship when I’m referring to government action. I talk about censoriousness and I think censoriousness is a phenomenon that you can see in all sorts of realms. But out-and-out censorship, I limit to government action. The point you raise is an important one. I mean, these platforms, the decisions they make can be highly consequential and society shaping. But I think the baseline that we want to set, to me, it just seems unmistakable that it’s different and that if you set a First Amendment standard and you’ve restricted platforms like Meta and Twitter in the way that government is restricted and required that all the speech that’s protected within the scope of the First Amendment be allowed in those arenas, those arenas would be dysfunctional. It has to do with the algorithmic underpinnings of those platforms and the ways in which they kind of weaponize human nature.

The First Amendment I think operates imperfectly, but pretty well sort of in the realm of human society, face-to-face engagement, the worlds that we’re used to in terms of publishing and the news media. I mean, of course all that’s changing quickly. The rise of AI I think is going to potentially bring up some profound new questions about the policing of speech. But the online arena operates very different. Speech moves with a different velocity. The Brandeis notion that the best answer to noxious speech is more speech. Online, that works very imperfectly. More speech can be thunderously censorious. When someone says something and they attract an avalanche of criticism in a program, they can flee the platform and it quickly translates into death threats. We deal with that in our online harassment program. And so I think one has to kind of own up to that pragmatically.

There’s also the other issue. The place where this comes up is how do we think about the censoriousness from the left on college campuses and trigger warnings and disinvitations of speakers and the shouting down at the federal judge at Stanford vis-a-vis something like book bans or prohibitions on what can be taught and studied in higher education, what we call educational gag orders. I do think if you’re making a hierarchy, a pyramid of threats to free speech, that you do have to put legislated threats, those that are backed by the power of the government ahead of those that are informal, even if they’re driven by mobs, and they can be very silencing. I don’t deny that, but I do think when the power of government is invoked, that that is something that has to be taken more seriously and it’s also more permanent. These laws are going to have to be repealed eventually.

Preet Bharara:

Suzanne Nossel, thanks so much for being on the show.

Suzanne Nossel:

Thank you, Preet. It was fun.

Preet Bharara:

My conversation with Suzanne Nossel continues for members of the Cafe Insider community. In the bonus for insiders, I asked Nossel how the rise of AI will impact questions of free speech and censorship.

Suzanne Nossel:

One of the issues that’s come up in the context of the Writers Guild’s strike is whether there are going to be large language models that essentially can generate a full script for a crime procedural series that goes on air, obviating the role of the writer.

Preet Bharara:

To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

To end the show this week, I want to highlight something very cool and important that’s going on in the great state of New Jersey, where, as folks may know, I was raised and where my parents still live. This year, New Jersey became the first state in the country to implement climate change education in all of its public school classrooms. That means that students from kindergarten through 12th grade learn about the causes of climate change and how to help solve it. The mandate was the culmination of a years-long effort by New Jersey First Lady Tammy Murphy, along with hundreds of educators who saw the need to incorporate climate education at all levels. Now, we’re seeing the effects of the mandate in action.

As reported in the New York Times, schools have found creative and engaging ways to bring climate education into their lesson plans. A teacher at the Slackwood Elementary School, north of Trenton asked seven-year-old students what penguins could do to adapt to warmer temperatures. One student suggested they migrate to the US during wintertime, another student suggested humans give the penguins floaties, and another suggested maybe a few could live in her parents’ fridge. Okay, so not all of those are workable, but the idea behind this kind of education as the Times explains, is to teach problem solving skills. After all, the younger generation will be burdened with figuring out solutions to warmer temperatures, high sea levels, frequent storms, and as Americans in the Northeast experienced recently, unexpected poisonous smoke from wildfires. The students learn about cause and effect, like what happens when one species disappears from an ecosystem and about pollination, composting, and sustainability.

Dr. Lauren Madden, a professor of elementary science education, told the Times, “When we shield them from so much, they’re not ready to unpack it when they learn about it, and it becomes more scary than when they understand they’re in a position where they can actively think about solutions. When you take kids seriously that way and trust them with that information, you can allow them to feel empowered to make locally relevant solutions.”

Now, we know that young people have such vivid imaginations and they’re eager to solve problems. As I just discussed with Suzanne Nossel, our kids deserve to know the truth, whether it be about American history or the challenge that climate change poses to our collective future, and they also deserve to be equipped with the tools to fight for climate justice and save our planet. As the teachers in New Jersey have shown, it’s not all gloom and doom, this material can be taught in a way that empowers students, makes them believe in their own agency, and builds optimism. So I commend this effort in the Garden State, and I hope to see more like it. And you never know, one of these students may bring us an Earth changing solution one day.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Suzanne Nossel. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet, or you can call and leave me a message at 669 247 7338. That’s 669 24PREET, or you can send an email to letters@cafe.com.

Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The Cafe team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Namita Shah and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.