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TRANSCRIPT

Jane Coaston: It’s Monday, September 29th, I’m Jane Coaston and this is What a Day, the show that is thinking about New York City Mayor Eric Adams who once said, quote, “all my haters become my waiters when I sit down at the table of success.” With his exit from the mayoral race, will those waiters lose their jobs? [music break] On today’s show, Oregon sues the Trump administration to stop the deployment of the state’s National Guard to protect federal buildings. And Israeli Prime Minister Benjamin Netanyahu changes his story on what happened with those bunker busters in Iran. But let’s start with free speech. We’ve been talking a lot about speech on the show lately and for good reason. Because late night talk show host Jimmy Kimmel is just the start. Following the assassination of conservative activist Charlie Kirk, a wave of everyday people have been punished, getting doxed and even losing their jobs. Because of statements they made online regarding Kirk and his death. Here’s CNN from earlier this month. 

[clip of unnamed CNN reporter] These companies and organizations have reported either terminating or suspending employees for posts about Kirk. And that includes Middle Tennessee State University firing a worker they say had quote, “zero empathy” for Kirk’s death. Conservative activists, Republican lawmakers and even a doxing website are flagging the comments in what critics say is a campaign to punish those posters. 

Jane Coaston: Yes, and in this case, conservative activists and Republican lawmakers include the vice president of the United States, J.D. Vance. Here he is guest hosting Kirk’s show from the White House. 

[clip of Vice President J.D. Vance] So when you see someone celebrating Charlie’s murder, call them out in hell. Call their employer. We don’t believe in political violence, but we do believe in civility. 

Jane Coaston: But people aren’t just getting fired for quote, “celebrating Charlie Kirk’s death.” NBC News reported that a Ball State University employee was fired for writing on her personal Facebook page, quote, “Charlie Kirk’s death is a reflection of the violence, fear and hatred he sowed. It does not excuse his death and it’s a sad truth.” And an elementary school teacher’s assistant in South Carolina was even fired for quoting Kirk directly, a statement in which Kirk said that the Second Amendment was worth quote, “some gun deaths every single year.” Remember the whole the left loves cancer culture and the right wants to protect free speech thing from like nine months ago? Here’s President Donald Trump with a reminder. 

[clip of President Donald Trump] After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America. [applause]

Jane Coaston: Ah, memories. Free speech matters now more than ever. But if every post on Instagram that doesn’t fit the right wing definition of free speech now comes with harsh penalties because of censorious assholes, what should folks like you and me be saying online or elsewhere? To find out what the rules around speech in America really are, and why this is no time to self censor, I spoke to Ari Cohn. He’s lead counsel at the Foundation for Individual Rights and Expression with a focus on tech policy. Ari, welcome to What a Day. 

Ari Cohn: Thanks for having me. 

Jane Coaston: Since the assassination of Charlie Kirk, I’m sure you’ve noticed that there’s been um an about face from Republicans on the topic of free speech. President Trump even recently suggested that negative press coverage of him is against the law, saying, quote, “they’ll take a great story and they’ll make it bad. See, I think that’s really illegal, personally.” Now, it’s obviously not illegal, but over the last five years, there have been a lot of people who are very confused about what hate speech is and what free speech is. Legally speaking, can you tell me? Is there any such thing, really, as hate speech in the United States? 

Ari Cohn: Nope, there is no distinction. Um. We have a few certain definite and fairly narrow categories of unprotected speech, and they all have absolutely nothing to do with whether or not speech is hateful. Uh and that’s because the First Amendment doesn’t allow the government to pick and choose what ideas or views it likes and doesn’t like when it’s regulating.

Jane Coaston: So that actually leads to my next question, which is what are those categories? Because we’ve also been seeing a lot of the use of the term incitement. 

Ari Cohn: Incitement is it’s actually much more simple than most people try to make it. Uh. It is speech that is both intended to and likely to incite imminent lawless action. And when we say imminent, we mean right now, right this second, not five minutes from now, not an hour from now. Not 10 days from now if you have even a second to stop and think about what you’re doing and you still choose to do the unlawful act. Then it’s not the speaker’s fault, it’s your fault. 

Jane Coaston: Right. So besides inciting speech like you just described, basically everything else, even if we hate it, even if it’s offensive, even if it’s the worst thing you’ve ever heard in your entire life, is protected by the First Amendment. Is that correct? 

Ari Cohn: Yeah, I mean, you got things like true threats and incitement, obscenity, which is a whole other crappy category of speech that is an hour conversation in and of itself, things like fraud and defamation. But generally speaking, yeah, if it’s not one of those things, it’s protected by the First Amendment and it doesn’t matter if we think it’s vile. I mean, the thing that lawyers constantly have to remind people is that the law and ethics/morality are very much not the same thing. That Venn diagram has only a very little overlap and that’s kind of where people get the, you know, there ought to be a law attitude from, because they think, oh, this feels wrong. It’s gross. This shouldn’t be allowed, but it is. 

Jane Coaston: Now, I’m sure you’ve been experiencing this through your work, but there’s something about speech that makes a lot of people into giant, massive hypocrites, where you have this back and forth and back and forth and back and forth of like, you know, free speech, except for you, free of speech, but just for me. What is it about free speech that turns everybody into a hypocrite? 

Ari Cohn: I think it’s counterintuitive to stand up in defense of the right to say things that we abhor that feels very against our nature and everyone’s kind of got their uh, their free speech but. Everyone’s got that thing where they’re like, well, everything else is free speech but this is particularly icky and I think it takes thought and actual effort to override that kind of base or human instinct where like, no, this is morally offensive to me and therefore it should not be allowed. No one should even be allowed to say it. It takes a conscious effort to override that. And I think in this day and age, particularly where we’re so driven by outrage and so driven by whatever is happening at any given moment. Um, it doesn’t leave us a lot of room for that introspection that allows us to do it and you know, that’s not to excuse people, but I can see the ways in which society has kind of moved away from giving us the space for it. 

Jane Coaston: But to the work that you do as a lawyer, I’ve been very worried. And I think a lot of people are very worried about the ways that the government now is basically deciding what free speech is and isn’t in the days after Charlie Kirk’s horrible murder, Vice President J.D. Vance even encouraged conservatives to reach out to people’s employers if they saw someone quote, “celebrating Kirk’s death on social media,” which included as far as I can tell from just a general search of Twitter, anything that wasn’t mourning or people saying Charlie Kirk’s murder was sad, but he was a bad person. Those people are now getting threatened with the loss of their jobs. Now companies have always had a right to suspend or fire an employee over something they said, like private companies are permitted to do so. But we’re seeing a lot of educators specifically who have been fired, who are now filing lawsuits to get their jobs back. What are those arguments going to look like in the courts? What kind of recourse do people have if they are being fired for saying not the right thing about one specific person on the internet? 

Ari Cohn: Yeah, I mean, it’s kind of bizarre, like almost North Korea, like insufficient mourning type business. But you know, I think it’s, you’re absolutely right. It’s far worse when there are people of immense influence ginning this up. I mean if you have a private employer, you are mostly out of luck. But for teachers and government employees, actually they have more protection because their employer is the government, the government does owe them still some first amendment rights. So there are perhaps certain circumstances where someone is in a position such that saying something like that could interfere with the performance of their department. But the government has to prove that those circumstances exist and that their interests as an employer should outweigh the employee’s right to free speech in that it either damages close working relationships in the workplace or creates such a disruption just vis-a-vis the public’s view, say, you know, a police officer making racist comments and saying, I wish I could shoot all people of X color or whatever, obviously that’s going to create a huge issue. The public’s not going to trust the police and you know that could be something that the government might, you might win. But I think if a teacher just said political murder is wrong, but Charlie Kirk engendered this kind of culture. No, that obviously has no impact on her ability to do her job or her department’s ability to provide its services. And like from the people who have loved to use the phrase, witch hunt for the past X number of years, they’re really going at it here. 

Jane Coaston: Yeah, I mean, can you explain a little bit more about how government protections for public employees protect their speech and when that doesn’t apply, for example, could they post on their personal Facebook their views and could they posts in a comment on the Facebook of their university and say, Charlie Kirk sucked or something like that? 

Ari Cohn: Yeah, so to simplify it a bit, if you were speaking in the course of your employment, that is your speech as an employee and that is not protected, but if you’re speaking as a private citizen on a matter of public concern, it’s presumptively protected unless the government can show that the speech may be interfered with close working relationships or interfered with the employer’s ability to provide its services to the public. To a sufficient degree that again, the government’s interest as an employer should outweigh the employee’s right to free speech. 

Jane Coaston: So as you just said, there’s a very high bar to uphold these firings of public employees for their speech, especially as a private citizen. But even still, no one wants to get fired and sue and go through all of that just to find out where that bar is. So how can people still express their opinions, but keep themselves safe, especially online? 

Ari Cohn: Yeah, I mean, it’s difficult these days because people are, like you said, they’re going out looking for it so they can get people in trouble. It’s really just, it’s kind of unbelievable how much free time some people have uh. 

Jane Coaston: Apparently. 

Ari Cohn: To be honest. You know but honestly, there’s there’s no way to really be a hundred percent safe. And I don’t want to tell people that they should make all of their accounts private and only post to people they know, because part of the great thing about the internet is that we can all talk to each other. We can reach audiences that before was reserved for like only the people with an enormous amount of money or power, and now we all have access to that kind of audience. Some people think that’s a bad thing. I actually think it’s a great thing. You know I would argue that really what we have to do is a little bit of spine stiffening. It sucks to think we might have to go through it, but if you give up and if you self-censor and if you, you know, abdicate your role in civic discourse, you’re handing them the victory that they’re looking for. Um. You know, we have to make it difficult, you know, I would also urge those people doing the targeting to think to themselves, you know do we want to live in a culture where we can’t have opinions? Where we can’t say what we think on anything because somebody is going to try and get us fired. And this goes for everyone who does this, you know, we should really think carefully about how we wield this weapon because it’s a pretty crude one. And I think, you know taken to its logical conclusion and especially with the way that we like to tit for tat in society these days can lead us down a pretty dark road. 

Jane Coaston: Ari, thank you so much for joining me. 

Ari Cohn: Always happy to join you. 

Jane Coaston: That was my conversation with Ari Cohn, lead counsel at the Foundation for Individual Rights and Expression. We’ll get to more of the news in a moment, but if you like the show, make sure to subscribe, leave a five-star review on Apple Podcasts, watch us on YouTube and share with your friends. More to come after some ads. [music break]

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Jane Coaston: Here’s what else we’re following today. 

[sung] Headlines. 

[clip of Chuck Schumer] We don’t want to shut down. We hope that they sit down and have a serious negotiation with us. That’s how it’s, I would remind Leader Thune, that’s how we all did it in the past, a bipartisan negotiation. That’s why the government didn’t shut down while I was leader. 

Jane Coaston: That’s Democratic Senate Minority Leader Chuck Schumer addressing Republican Majority Leader John Thune on NBC’s Meet the Press Sunday. Both senators are digging in their heels ahead of their meeting today with Trump and their counterparts in the House. It’s a last ditch effort to have a civil adult conversation before all hell breaks loose tomorrow. If the two parties can’t reach a short-term spending agreement by midnight Tuesday, the government shuts down. The sticking point? Affordable Care Act tax credits are set to expire later this year. If that happens, about four million people could see their premiums go up or lose their health coverage entirely. Some Republicans are fine with letting the credits expire. Others want to table that discussion for later this year. But Democrats want credits extended now, in time for health care companies to keep out-of-pocket costs down by January. And while the negotiation strategy around all of this seems to be, make sure Americans know that if the government does shut down, it’s the other party’s fault. Here’s Thune responding to NBC’s Kristen Welker. 

[clip of NBC’s Kristen Welker] Is the government going to shut down this week, leader Thune? 

[clip of John Thune] Totally up to the Democrats. This is the ball is in their court. There is a bill sitting at the desk in the Senate right now. We could pick it up today and pass it. That has been passed by the House that will be signed into law by the president to keep the government open. 

Jane Coaston: Okay then. Meanwhile, the Trump administration told agencies to prep for large scale layoffs, not just furloughs if said shutdown occurs. Are we having fun yet? New York City mayor Eric Adams announced he’s officially bowing out of the mayoral race Sunday via an eight minute video he posted on Twitter. 

[clip of New York City Mayor Eric Adams] I also know some remain unsure of me after the unfortunate events surrounding my federal case. I was wrongfully charged because I fought for this city. And if I had to do it again, I would fight for New York again. And yet despite all we’ve achieved, I cannot continue my reelection campaign. The constant media speculation about my future and the campaign finance board’s decision to withhold millions of dollars have undermined my ability to raise the funds needed for a serious campaign. 

Jane Coaston: There’s a lot to unpack there because Adams’s reelection campaign was already pretty much doomed since last year. Here’s a refresher. Adams was indicted for accepting illegal campaign contributions and travel discounts from a Turkish official and others, and returning the favors by helping Turkey open a diplomatic building in Manhattan without passing fire inspections. In January, Manhattan federal prosecutors wrote in court papers that they continued to quote, “uncover additional criminal conduct by Adams.” And the FBI raided the homes of two of his aides, but Trump’s Justice Department dropped the case in April because Adams allegedly made a deal to help the president out with that whole immigration crackdown thing. Clearly not a good look for a Democratic mayor. In his concession speech, Adams did not directly mention or endorse any of the remaining candidates in the race, but did warn voters about quote, “insidious forces” using local government to quote, “advance divisive agendas.” That’s clearly a reference to state assembly member Zohran Mamdani, a democratic socialist who won the mayoral primary in July. Adams dropping out could give a boost to the other centrist candidate for mayor, former New York governor, Andrew Cuomo. After the announcement, he praised Adams on Twitter for quote, “putting the wellbeing of New York city ahead of personal ambition,” a thing Cuomo knows nothing about. Cuomo followed up with an obvious dig at Mamdani warning about unspecified quote, “extremist forces.” Well, Mamdani fired back at Cuomo in a video statement Sunday posted on Blue Sky. 

[clip of Zohran Mamdani] To Andrew Cuomo, you got your wish. You wanted Trump and your billionaire friends to help you clear the field. But don’t forget, you wanted me as your opponent in the primary too. And we beat you by 13 points. Looking forward to doing it again on November 4th. Hope you’re well. 

Jane Coaston: Insider reference for Real Housewives of Salt Lake City fans. Lisa Barlow would be very proud of that comment. Israeli Prime Minister Benjamin Netanyahu told Fox News on Sunday that the U.S. bombing of Iranian nuclear facilities in June was never intended to destroy Iran’s stockpile of enriched uranium. Even though that was a big rationale for the whole attack. Netanyahu made the comment after being asked why just last week, he told the UN that that very same stockpile had to be eliminated. Sunday morning, he told Fox news he wasn’t just on repeat. 

[clip of Benjamin Netanyahu] We knew that in advance. In fact, our whole plan before and after the United States decided to join us took into account that we wouldn’t get these 400, 450 kilograms of enriched uranium. We knew that. What we were targeting is the capacity to make more of those of that enriched uranium and also the attempt to weaponize it. 

Jane Coaston: This makes some sense. Nuclear material doesn’t exactly equal a nuclear bomb. But Trump had said in a Truth Social post that the entire program was tanked, saying, quote, “obliteration is an accurate term.” And of course, Trump also called CNN, quote, “disgraceful” for questioning whether the strikes had eliminated Iran’s nuclear arsenal. So sure. Oregon and the city of Portland are suing the Trump administration to stop the deployment of the state’s National Guard troops. Trump said on Truth Social Saturday that he’s sending the troops to protect federal facilities he claims are under attack from anti-fascists. In the post, he called Portland, quote, “war ravaged” and said troops could use, quote, “full force.” Trump has threatened to send the National Guard to Memphis and Chicago, but Portland’s also been in his mind lately, too. Here he is at a press conference in the Oval Office late last week. 

[clip of President Donald Trump] We’re going to get out there and we’re going to do a pretty big number on those people in Portland that are doing that. They’re professional agitators and anarchists. They’re actually anarchists. 

Jane Coaston: Secretary of Defense Pete Hegseth sent a memo to Oregon Governor Tina Kotek Sunday, authorizing the deployment of 200 National Guard troops for 60 days to protect federal property. The lawsuit claims Trump doesn’t have the authority to federalize the National Guard. Oregon State Attorney General Dan Rayfield said in a statement Sunday, quote, “what we’re seeing is not about public safety. It’s about the president flexing political muscle under the guise of law and order, chasing a media hit at the expense of our community.” And that’s the news. [music break] One more thing. I know it’s been nine months since President Trump reentered the White House. And it’s spent 10 years since he descended the golden escalator into life as an almost inescapable political figure. And yet somehow I think that many of us forget something about Donald Trump, that almost every single day Donald Trump says or does something that is completely fucking insane, something that would ruin the careers of pretty much any other politician or anyone ever. But with Trump, it gets lost in the wash. Let’s take Saturday night, for example. At 10:19 PM Eastern time on Saturday, the president of the United States posted this video to his Truth Social account, a social media platform that functions as his official messaging apparatus for everything from discussions of the war in Ukraine to his views on late night television hosts to this: 

[clip of AI voice model of Lara Trump] Breaking now, president Donald J. Trump has announced a historic new healthcare system, the launch of America’s first med bed hospitals and a national med bed card for every citizen. 

[clip of AI voice model of President Donald Trump] Every American will soon receive their own med bed card. With it, you’ll have guaranteed access to our new hospitals led by the top doctors in the nation, equipped with the most advanced technology in the world. These facilities are safe, modern and designed to restore every citizen to full health and strength. This is the beginning of a new era in American healthcare. 

[clip of AI voice model of Lara Trump] In this first phase, only a limited number of med bed cards will be released. Registration details will be announced very soon. 

Jane Coaston: Now a few things. No, that’s not Donald Trump’s voice. And no, that’s not the voice of Lara Trump, his daughter-in-law who hosts the Fox News show, My View. This video is entirely AI generated and Fox News confirmed it never aired on its network. And the med bed thing? That’s a right-wing conspiracy theory. A med bed that can cure basically any disease and even regrow lost limbs, but the government is keeping it from you for shadowy reasons, obviously. None of this is real. So now you’re probably asking a few questions like, why would Donald Trump post an AI generated video of himself and his daughter-in-law advocating for a product that doesn’t exist, except in the imaginations of our weirdest citizens? He knows he didn’t say any of this, right? Right? Trump appears to have deleted this video from his Truth Social account on Sunday. And I’m aware that there are bigger things happening in the world right now, but many of those things are the direct responsibility of President Donald Trump. The same person who posted an AI generated video of himself and his daughter-in-law promoting an imaginary product for absolutely no reason whatsoever. We’re in the bad place, is what I’m saying. [music break]

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Jane Coaston: That’s all for today. If you like the show, make sure you subscribe, leave a review, avoid corndogs and tell your friends to listen. And if you’re into reading and not just about how 58 million pounds of corndogs and sausage on a stick products are being recalled because there might be wood chips in the batter, like me, What a Day is also a nightly newsletter. Check it out and subscribe at crooked.com/subscribe. I’m Jane Coaston and save your corndog consumption for state fairs or never. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Desmond Taylor. Our associate producer is Emily Fohr. Our video editor is Joseph Dutra. Our video producer is Johanna Case. We had production help today from Greg Walters, Matt Berg, Megan Larsen, Gina Pollack, and Jonah Eatman. Our senior producer is Erica Morrison and our senior vice president of news and politics is Adriene Hill. We had help today from the associated press. Our theme music is by Colin Gilliard and Kashaka. Our production staff is proudly unionized with the writer’s guild of America East. [music break]

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