“Civil liberties” appears across The Bob Zadek Show less as a fixed legal category than as a contested boundary — the line between government and the individual, and the question of who counts as the party on the other side of it.
Gary Johnson on government out of the bedroom
In a 2012 episode, Gary Johnson told Bob Zadek that lowering taxes is “job one,” but that it must be coupled with civil liberties, which he described as the notion that government’s role in the bedroom should be watched and that government should get out of the bedroom. He said he supports gay marriage equality, supports a woman’s right to choose, fundamentally believing that is a woman’s choice, and supports legalizing marijuana. He conceded that marijuana might not be the smartest choice in the world, but called it a choice, and said that as long as one is not putting anyone else in harm’s way, it ought to be a right one should be able to partake in The Triumph of Principle Over Politics (2012).
Zadek responded that Johnson had introduced an entire seminar of political topics, and said it was interesting that when asked about jobs, Johnson responded with tax policy rather than saying “create jobs” per se. Zadek framed the distinction as the purpose not being the creation of jobs but making the economy efficient so that jobs would be created. He added that he gets moisty-eyed when Johnson talks about civil liberties, and that what troubles him and most libertarians is that most candidates, and indeed the governing parties, treat personal freedom as a nuisance and as unimportant compared to the issues of the day; a candidate running on a platform that nothing is more important than personal freedom and responsibility he called refreshing, honoring those values instead of treating them as discardable commodities The Triumph of Principle Over Politics (2012).
Hamburger and the New Civil Liberties Alliance
Philip Hamburger, introduced by Zadek as a law professor at Columbia Law School, described the New Civil Liberties Alliance as an organization he founded about four years earlier because he was dissatisfied with the way conservative and libertarian organizations were litigating to protect freedom. He called it somewhat like the ACLU, only, in his words, “we actually try to defend your civil liberties,” with about 20 people in Washington, D.C. The theory on which it was founded, he said, is that administrative power is the greatest threat to civil liberties in our era The New Civil Liberties Movement (2021).
Hamburger gave the Securities and Exchange Commission as an example. He said the SEC goes after insider traders with its own invented rules rather than an act of Congress, prosecuting them in its own non-courts before so-called administrative law judges whom he described as not really judges, who give no jury and no due process and are quite biased. He said NCLA’s litigation had led the SEC to largely give up bringing cases before those ALJs and to go into district court instead, and that in Spartan Securities v. SEC the judge instructed the jury that guidance is not binding as law, after which the jury acquitted the client on 13 of 14 charges The New Civil Liberties Movement (2021).
In a 2021 episode with Hamburger, Zadek drew a parallel to Major League Baseball jiggling its rules to favor first batters and then pitchers, asking whether the country would rejiggle the Constitution to achieve a political outcome. Hamburger answered that the court has, through intimidation, legitimized administrative power taking away most procedural rights like juries, and that progressives who sought the administrative state now want still more power on the Supreme Court, whereas conservatives are not seeking a reconfiguration of the judiciary just to get their way but are trying to argue through logic for defense of rights. Hamburger said the New Civil Liberties Alliance was founded about three or four years earlier as an alternative to the ACLU, to do what the ACLU should have been doing but has not, defending procedural rights like jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than through administrative rules; he said it has a team of about 20 in Washington, D.C., and had gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines Philip Hamburger on Court Packing (2021). Zadek closed that episode by identifying Hamburger as director of the Columbia Law School Center for Law and Liberty and president and founder of the New Civil Liberties Alliance Philip Hamburger on Court Packing (2021).
Bodily autonomy and the George Mason suit
A 2021 episode introduced Todd Zywicki, identified by Zadek as a law professor at George Mason University’s School of Law, the Antonin Scalia School of Law, as the plaintiff in a lawsuit against his employer’s COVID-19 vaccine mandate, with Jenin Younes as his counsel, a lawyer with the New Civil Liberties Alliance Vaccine Mandates, George Mason, and the Bill of Rights (2021). Zadek said Zywicki objected not because he is an anti-vaxxer but because he had had the COVID virus and therefore had at least the same level of immunity as if he had been vaccinated. Zadek said that if the goal was to make sure the professor was not endangering students and faculty, that danger did not exist because of the natural immunity created by having COVID; the university, he said, did not care about the medical facts, a rule was a rule and nobody gets to violate the rule, and the litigation started and stopped quickly when the university conceded the point. Zadek called it a victory of sorts because the university caved rather than allow the case to establish a precedent Vaccine Mandates, George Mason, and the Bill of Rights (2021). Zadek also recalled having had Philip Hamburger on the show, describing him as one of the founders, perhaps the founder, of the New Civil Liberties Alliance Vaccine Mandates, George Mason, and the Bill of Rights (2021). The excerpt’s introduction names the constitutional right to bodily autonomy, natural immunity, vaccine passports, and Jacobson v. Massachusetts and Buck v. Bell among the topics of the discussion Vaccine Mandates, George Mason, and the Bill of Rights (2021).
Public campuses, private campuses, and contract
In a 2022 episode, Zadek posed the problem of civil liberties where the counterparty is a private party. He said one thinks of civil liberties as rights protected against encroachment by government, yet when protecting civil liberties on college campuses the adverse party, setting aside governmental institutions like state colleges, is another private party acting the way a business might react; one does not think about protecting civil liberties from encroachment by Walmart Do you know your rights? (2022).
Joe Cohn answered that with respect to public institutions of higher education, the institutions and their employees are government actors, so when a university expels someone for protected speech or punishes them without due process under another charge, that is government action implicating the deprivation of civil liberties. He described a trend on college campuses over roughly the last six or seven years of more campaigns for censorship led by fellow students, which he called a little depressing given that historically students had been the leaders in fighting for free speech, and said they have by and large embraced a new tactic of appealing to administrators to silence their adversaries. At private institutions, he said, the courts have for years protected concepts like academic freedom and free speech not on the basis of constitutional protections but with respect to contract law: if Harvard promises free speech rights when you apply, and does not live up to those promises, courts have been willing to say the contract was breached Do you know your rights? (2022).
Zadek said he had wondered what cause of action one would have against a private institution that can basically do what it wants, and called the breach-of-contract concept brilliant, a perfect tool where the adverse party is a private college rather than a state-owned university or college. Cohn declined credit, saying the tactic predated FIRE’s existence, though he said FIRE has utilized those cases and been among the more frequent advocates in the public sphere since its founding Do you know your rights? (2022).
A second 2022 episode carried the same exchange in nearly identical wording, with Cohn again explaining that public institutions and their employees are government actors, that fellow students as private actors are sometimes the adversary in campus censorship campaigns, and that at private institutions courts have protected academic freedom and free speech through contract law rather than constitutional protections Joe Cohn on Title IX and Due Process on Campus (2022).
Across episodes
The topic recurs across five episodes spanning 2012 to 2022, but the excerpts do not show a single argument developing so much as a shifting cast of counterparties: Johnson’s 2012 framing locates the threat in government generally, while Hamburger’s two 2021 appearances locate it specifically in administrative power, the vaccine-mandate episode locates it in an employer’s rule, and Cohn’s 2022 appearances locate it partly in private institutions where constitutional protections do not run directly. Hamburger’s New Civil Liberties Alliance appears in three of the episodes, and the excerpts give no account of change in his description of it between the 2021 episodes beyond the addition of the SEC example in the later one.
What the sources do not cover
The excerpts do not define what legal test or doctrine “civil liberties” denotes, nor do they state what any cited case held or which amendment any right turned on. The vaccine-mandate excerpt supplies only the introduction to the episode, so the participants’ own arguments, the details of the complaint, and the terms of the university’s concession are not present. The Hamburger episodes cover only portions of the conversations, and the two Cohn episodes overlap so heavily that only one distinct exchange is available.