Free Speech in America 2014: A Panel Debate at NCC

[00:00:13]please ladies and gentlemen welcome to the National Constitution Center I am Jeffrey Rosen the president of this wonderful institution the national Constitution Center is the only institution in America chartered by Congress to diss information about the US Constitution on a nonpartisan basis it's a precious role we take it uh very uh uh seriously and we're grateful for it and the program tonight is part of our role as America's town hall this is the one place in the country where citizens of diverse constitutional perspectives can hear the best arguments on the Constitutional questions that transfix America are in the news and suffuse our history and make up your own mind we're talking about the most timely question imaginable the future of free speech in America just this morning the Supreme Court heard important arguments on a case that will decide whether corporations have the same religious Liberties under the First Amendment As Natural persons and we're going to discuss that and many many other questions I want to ask you to look at our website Constitution center.org for upcoming programs on Thursday Alan dtz will come to discuss his life in the law we have uh Senator uh Jim dint Lynn Cheney Justice John Paul Stevens and one of his only public appearances about his great new book and just a thrilling series of fall programs I'm also especially excited that tonight we are presenting this partnership with uh the uh foundation for individual rights and education or fire uh Fire's mission is to defend and sustain individual rights including freedom of speech legal equality due process religious liberty and sanctity of conscience at America's colleges and universities it was during my first weeks on the job that Greg who you'll meet tonight from fire came to me and said we should present a panel on the future of free speech and we've really assembled the dream team of uh Free Speech commentators and thinkers here tonight this is an ideologically diverse panel broadly I think you may find that two of our uh panelists may be uh more Ardent in their defense of the traditional America American free speech uh position than others but I'm not going to tell you which ones and we're going to expect us expect them to defeat our expectations we don't know maybe maybe we will change our minds after listening to each other let me briefly introduce them to you and then we're going to get right to it uh Dr Stanley fish is the Flor shimer distinguished visiting professor of law at cardoo law school he's well known to all of us as a contrib contributor to the opinionator blog for the uh New York Times uh Greg luuk yanov as I mentioned earlier is the president of the foundation for individual rights and education a member of the uh bar of the US Supreme Court an author of unlearning Liberty campus censorship and the end of the American debate it's recently come out in paperback and it's great please get it after the show my old uh friend and uh co- clerk Eric Posner is Kirkland andalis distinguished professor of law at the University of Chicago a fellow of the American Academy of Arts and Sciences and a iic commentator on international law constitutional law and comparisons of American International attitudes toward free speech and finally I just have to say my old old friend it's such a joy to welcome you Jonathan to the National Constitution Center we go way back in Washington DC uh Jonathan is the most uh prominent and important defender of gay marriage in this country as well as one of the most persuasive and eloquent Defenders of free speech and his reasoned and calm voice voice uh expressed in this beautiful book which has been recently reissued uh in paperback kindly inquisitors and in other works uh and in uh many articles uh has greatly enriched public debate so welcome to the National Constitution Center thank you I'm going to begin with you Jonathan um yesterday the Supreme Court delayed a decision about whether to hear a very important case it raises the question whether a photographer can refuse to photograph gay weddings because of her religious objections and claims that religiously motivated individuals can refuse to serve gay people or perform gay marriages are popping up with increasing frequency the biggest theme of your recent writing and in fact you have a new afterward to kindly inquisitors has been that the first amendment is good for gay people that a regime that allows hate speech is good for minorities in general and the progress of gay rights in the past two decades proves it do these recent cases cause you to reexamine that thesis no they don't um I am not the best person to comment on the legalities of these cases I don't know the I don't know the case law um but but let me give you a personal perspective on on how I think about these cases there there's a bunch of these cases and they all involve one way or another The Clash of religious conscience with anti-discrimination law which often means homosexuality gay marriage um in the case of the Obamacare law it means contraception uh and there's a lot of these the other day there's a case in Colorado now it's not a legal case a suit has not been filed but a Christian dog Walking Company fired a customer because the customers agreed with legalizing marijuana they said get your dogs and get out of here we're not going to walk them anymore um so I regret this this is not the kind of society I want to live in where people are picking these fights I've urged the gay community publicly and privately the right answer to this is sensible reasonable accommodations worked out through the political process I worry that by litigating all this stuff and turning it into First Amendment Juris Prudence which locks in one answer or another forever we lose the flexibility to negotiate there is no reason we need to have one National rule different states and cities should be striking different balances and gay people for example or abortion rights activists for example and people of religious Faith should be sitting down at the table forced to negotiate over statutes that will strike balances that's the right way to handle it wonderful um Greg you have spent the past 13 years defending free speech on campus uh how do the battles today look different than they did when you started and what are the most important battles today you recently noted that you've been maintaining a growing list of 120 speaker controversies in recent years including high-profile disinvitation or Decisions by speakers to withdraw Under Pressure including Ben Carson Heraldo Rivera and cure and so forth um what's the pressure point of these Free Speech battles on campus today and how has it changed in the past 13 years well my journey um you can share with us has been I I went to law school I was the weird law student who went to law school specifically to do first amendment law um my passion was free speech I can get into why I came to that but that's why I went to law school I specialized in it I interned at the ACLU I took every class that Stanford offered on freedom of speech I even six additional credits on censorship during the tutor Dynasty because I loved it so much beautiful and no matter uh and even with all that preparation um when I showed up uh and became the first legal director of fire back in 2001 I was stunned by the kind of things that can get you in trouble on the modern college campus and 13 years later I am still stunned on a daily basis so that's one of the reasons why I wrote unlearning Liberty is because I got really tired of people saying well that's one example I'm like okay how about the following thousand that I can point out so I talk about dozens of examples in the casee not to completely exhaust people just by by sheer number uh sheer number of examples but one Trend there's of a lot of trends that that I've noticed is it felt like when I first started back in 20012 2002 that um universities when they were censoring students they at least make some kind of bow to some kind of higher purpose to what they were doing even if it was entirely disingenuous they would say basically well don't make fun of tuition prices or don't make fun of the dean in the name of I don't know tolerance and diversity like they would actually invoke these things and sometimes sincerely sometimes for for the greater good but sometimes half sincerely it seems like in the past two years I've seen more cases where they're not even bothering with that where it seems to be this very there's a there's been a lot of these very oldfashioned examples of just don't criticize the university I don't really have to justify it just do as I say which I think is is partially a result of a lot of bureaucratization and a lot of uh you know just getting used to power over a long time with regards to disinvitation season um that's our name for uh every time around this time of year um a lot of speakers end up getting disinvited from campus or they're forced to withdraw their names and we we we've been laughing Darkly within the fire office about disinvitation season that happens every year and that's not so much a First Amendment problem as a cultural problem I think that we're teaching students to think that if you don't like the opinion of someone who's speaking there you don't challenge them you chase them off you get them disinvited and I I think that's the wrong way to think about open discourse great um Eric uh not long ago um the president of the United States and the president of Egypt disagreed about how to treat a prominent Free Speech issue this was the video innocence of the Muslims that was alleged to have led to the Benghazi riots and uh Under Pressure the president of Egypt said this has to be removed because it blasphemes uh a group of Believers in an entire religion which is illegal in Egypt and the president of the United States while defending Google's and YouTube's right to post the video called on the companies voluntarily to remove the video because he said it was causing violence in fact Google and YouTube uh and uh Facebook refused to remove the video because they concluded it did not violate their terms of service which prohibits criticizing a religion but not a religious leader and later evidence suggested that the video might not have caused the r are American and uh non-american Free Speech uh Traditions they're obviously very different and America is more protective of free speech is that a good or bad thing and and did Google do the right thing um it's a bad thing so uh I teach international law and one of the things that I've been struck about again and again is the difference between American norms and Norms in other countries um and and this is sometimes uh put under the rubric of American exceptionalism and one way that the United States is really quite different from other countries is is its commitment to free speech now you can you can make three distinctions so they countries like Egypt and you know authoritarian countries they obviously don't like free speech and there's no reason to want to be like them but European countries have a different attitude toward uh Free Speech uh from that of the United States uh Europeans tend not to be as absolutist uh they take seriously uh the um fact that uh people can be offended by speech that it can cause turmoil as illustrated by the uh by this video um and and what's uh striking is that uh there are these human rights treaties which have Provisions about freedom of expression but the provisions are much narrower than you find in the United States the provisions will say you know speech free speech is is a is a right subject to various constraints such as public morality and public order so I think President Obama did a reasonable thing uh this video was caused in foreign policy problems for the United States because the United States was trying to improve relations with uh Muslim countries and he wanted to at least show uh people in these countries who don't share our views about freedom of speech that we respect their views um now he couldn't obviously order Google to take down uh the video If he had had that power it would have been an interesting question whether he he should use it but I think people are wrong to uh criticize President Obama in this case on the grounds that basically the rest of the world you know doesn't share our views and they just have to you know get with the program they've got to be like like us and if they're not like us well you know who cares about them I don't think that's a a practical way to run foreign policy and but I do think I think the problem here is that we we're so uh um we love our first amendment so much and and we when we think very proudly of American traditions about freedom of speech which actually only go back a few decades not to the beginning but uh but this is such a part of American self-identity that it's very hard to make compromises uh even when they're warranted and and and that's a problem great and uh Professor fish you've written a book on Free Speech called there's no such thing as free speech and it's a good thing too in case you wondered where U Professor fish falls on this uh Spectrum I've suggested uh and now you've written a book on academic freedom versions of academic freed freedom from professionalism to Revolution what in your view is the relationship between these two concepts before I answer I want to say how much I agreed with what Eric just said uh once uh you all recall Solomon Rusty uh and the fact that a fatwa was issued uh against him uh for the writing of Satanic Verses uh I was at a conference uh a humanistic conference uh don't go to humanistic conferences but I was at one nevertheless I used to be in that game and this topic came up and someone stood up in the audience and said and meant it this was not a joke what's the matter with those Iranians haven't they ever heard of the First Amendment that's exactly now the relationship between academic freedom and the first amendment I think can be simply described academic freedom Free Speech as established by the First Amendment um is an inclusive Dem Democratic uh uh is a inclusive Democratic idea academic freedom is a notion that only lives coherently within an academic structure which is determinedly exclusive what academics do our trade is to make judgments on each other uh and what we do is not forer speech or flourish or or or uh ensure that it will flourish rather it is the case that we devise mechanisms by which we give ourselves the right at least those of us who have tenured positions to say who can and who cannot speak freely another way of looking at the difference between academic freedom and free speech is to think of the topic of Holocaust denial uh which has been with us uh for quite a while and will be with us I I predict uh for a very long time uh Holocaust Denial in our society under the strong absolutist uh First Amendment views that Eric referenced uh is something that cannot be stigmatized or oppressed Holocaust denial can be promoted on websites radio programs videos and so forth but in the academy Holocaust denial is interdicted it's not that the question of Holocaust denial never arises in the academy it's rather that when it does arise it never arises as a live option for belief it's not something in the academy which is regarded as an alternative uh position that one might sincerely have rather Holocaust denial is regarded as one might view Flat Earth denial or Elvis is dead denial that is it's the property of cooks and crazies therefore although you can write about it and get a position for writing about it in a history department or get promoted in a history department for writing about it if you Advocate it you will neither get hired or promoted so why is there this difference again it's the difference between a structure of inclusion and a structure of exclusion but and this goes again to uh Eric's point and we didn't talk about anything ahead of Eric's point that the first amendment that we now have which I would call not in a friendly tone a Libertarian First Amendment First Amendment we now have is a recent development and I would say that it only emerged fully in 1964 uh with the famous case New York Times versus Sullivan uh which is a case dear to the heart of all free speech ideologues and which I think was one of the worst decisions um ever issued by the Supreme Court now before New York Times versus suan it was possible and in fact it was done by the Supreme Court to withdraw constitutional protection from speech either because of what it did the effects it had or because of what it said there was a contents uh test and in the effects test the effects test uh was called the bad tendency test at the beginning of the 20th century the idea was that some forms of speech have a bad tendency they incite illegal activity don't deserve protection That Was Then followed as many in this room will know by the Holmes brandise clear and present danger test which said well yeah the effects may be bad but we we should wait until we see how bad they would be see when the danger is imminent and then step in but still an effects test the content test was a test which said look there are some forms of speech which are trivial and worse and they don't deserve constitutional protection I have a quote here one of my favorite quotes from a 1942 cases some utterances are no essential part of any expedition of ideas and are of such slight social value as a step to truth that any benefit derived for them derived from them is outweighed by the social interest in order and morality all that changed in 1964 when the New York Times uh versus Sullivan uh Court uh said that all speech must be protected independently of either its content or its effects uh and independently of whether it was defamatory or it caused distress of a variety of Kinds because the important thing said the uh New York Times versus Sullivan Court was to keep the the uh keep the conversation going going in a wide open open robust and uninhibited way which I have we've been encouraged to have a conversation here right which I've sometimes called the John Wayne theory of the first am and that was the beginning of the end of everything and that's why the world ended in 1964 actually it was the beginning of the beginning of everything let me remind you let me remind you what the world was actually like in 1954 when um a magazine you've never heard of because I hadn't until about yesterday called one published in la oh yeah oh great good for you this was one anyone heard of this magazine o was the first openly gay intellectual magazine and it was not publishing sex ads or anything like that it had articles and it had short stories and it was openly gay and the United States Post Office shut it down because the content was unacceptable to society they took it off the stands they said you can't mail it and just for good measure the specific issue that they banned had as the cover story quote you can't say that an attack on the censorship policies of the US government that's what they were doing in 1958 in a pruum two-line decision there's no reasoning at all the Supreme Court struck down what the Postmaster General had done creating a wide open field for debate of gay rights in this country a position considered obscene and dangerous to children in my lifetime and allowing the field open for people like me to make our arguments and eventually to win those arguments I think you could win the arguments by gaining control of the political process since that's the way the arguments are always won anyway and in fact that's what's happening now ideas won the arguments we had no political never won anything yeah here here I'm I am delighted that this first panel first of all doesn't need a moderator go away go away put my apted plan uh and that the debate has been joined so fiercely and in fact we've had fighting words so now we know where everyone stands and we have have fire now this crowded the I really please come back because these self moderating panels are so much easier to uh preside over we have on my left the two First Amendment Libertarians as Professor fish put it who defend the American free speech tradition which holds generally that speech can only be banned If it threatens and is likely to cause imminent Lawless action and on the right we didn't actually plan this we have I don't know I'm going to call them the First Amendment dignitarian you can choose another you can fight with me about that who are who are contrarians who are defending a more European notion that speech that blasphemes groups or offends their dignity may be banned uh as in Europe where Holocaust Deni can be bad I want to ask Greg as a Libertarian to respond to the dignitarian argument that the innocence of the Muslims video should have come down after all the Google people weren't convinced that there was evidence of imminent threats and retrospect that turned out they were right the video didn't cause actions did those Google kids many of the these are 22 years old in flipflops who were basically making a decision in the middle of the night did they make a better decision than the president of the United States I I actually wrote two very long articles in the wake of the um uh the decision to take the videos to to go after the videos because almost as soon as the videos went up I mean PE people who um are contrarians on free speech on campus are actually in my experience in the mainstream 59% of campuses maintain what we call Red Light speech codes um ones that are would be laughably unconstitutional every single time they've been challenged in a court of law they've been defeated so in a sense Stanley fish has W on campus um they they don't the extent to which free speech is really appreciated on campus I've seen a you know marked decline within my own uh 13-y long career and what you there there's an advantage to doing you know six credits on the on the history of tutor censorship one of them is remembering where where we came from and the idea the spectacle of academics arguing essentially for blasphemy laws saying that we should be banning speech uh because it offends someone's religious faith and I remember someone challenged me on this and I said no no really blasphemy was the first Freedom you're not actually free until you can question someone else's Faith someone else's deepest beliefs and that was so well established by the time that because of the the horrors of the the religious wars in Europe that by the time you get to the get to the establishment of the First Amendment it's relatively well taken for granted now to the argument of whether or not we um just recently started taking Free Speech uh seriously I also dismissed that argument as well I mean as Stanley well knows um Milton was writing about free speech in 1644 and I'd like to point out that that means that pretty much as long almost as soon as the masses had the power to communicate ideas they were they were arguing for free speech and the tradition of John lilbourne to the people that I used to cover during the tutor indry even uh even long before Milton so free speech was was a powerful uh weapon and a powerful goal um through throughout intellectual history starting as soon as people were allowed to speak it out loud what uh what what they're what Stanley is conflating is that the first amendment was not found to uh apply to the State um until 1925 and that is because of something called The Slaughterhouse decision it couldn't actually have applied before the 14th Amendment which came after the Civil War unfortunately there was a really stupid decision by the Supreme Court that prevented that from actually having full force really well not quite full force until 1925 when it started to be incorporated through the due process clause of the Constitution but from 1925 on you see this progress in my opinion progress um towards better and better protections of free speech with little dip in the in the second Red Scare in the early 1950s but of course I see 1964 I I I see times be Sullivant as being this wonderful moment and when people argue against it the Obama Administration argues against T Sullivan can you imagine a ran Paul or Sarah Palin being able to sue a journalist because they said something that they uh that might be vaguely critical of them that's what they're arguing for they're arguing for a right of of of politicians to scare the hell out of journalists with threats of of defamation it's an incredibly good decision and the idea that I'm always puzzled by people opposing it do you do we want our politicians to be able to sue us for saying mean things about them I don't defaming defaming them is not the same thing as saying mean things defaming is lying about them well no under under under the under the standard of New York Times V suiban you have to make reference to the very opinion that you're decrying because that that's where the actual malice came from so so there's this flourishing political culture in Europe where they have strong defamation laws right uh and those places aren't less Democratic than the United States correct they might be more democratic because people who might otherwise be deterred from entering politics by the kind of slimy uh media system that we have uh can go into it you know not having to worry about uh being defamed or uh or uh humiliated in in various ways I call I call this Europe worship um my uh see a lot of that here in America my my dad grew up in Yugoslavia my mother's British I spent a lot of time over there and and it's funny oslavia I'm not wish and it's funny how much how much it mystifies Brits and and my friends about how much you'll hear sort of like wow they Europe has such great laws with regards to speech we would never tolerate their National Security laws those by themselves are crazy the and these are laws that are in Canada and Australia and Britain and the re and the the the recent um but why wouldn't I mean these are not police States right Canada is not a police state it's not an authoritarian system right the well but what is the what is the harm that's taking place in uh in uh in uh in the conrete harm that's taking place people say among other things there's a whole lot of chilling going on over there that for example it's getting Mighty hard to criticize someone of the Islamic faith for example y there are reasons both legal and extra legal for that but people say there's a lot of chilling effect and new laws about blasphemy just the other day I happen to have in my pocket by mere coincidence Belgium the other day I was I came determined to read this because it's so interesting Belgium has passed a law just the other day against uh advocating sexism uh for purposes of this act the concept of sexism will be understood to mean any gesture or act that is evidently intended to express contempt for a person because of his gender or regards him as inferior or reduces them to their sexual Dimension which has the effect of violating someone's dignity either in public meetings or in the presence of several people or through documents printed or sold or even in documents that have not been made public was the law passed yeah this is La that's that's a silly law so I take lot of silly laws in Europe right now that's a silly La I take your point these are not police States and and Europe's a wonderful place there's a lot you can do before you run into serious trouble exactly but but as a member of an actual minority group I would rather be here where I don't have to worry about some prosecutor coming after me because he doesn't like what I said let me pick up something that Greg said about Milton he was referring to Milton's 1644 tract area ptico where as Greg indicated they are extraordinarily powerful celebrations of the freedom of speech in fact some of them are chiseled on the wall of the New York Public Library two-thirds of the way through that track Milton pauses and says of course I didn't mean Catholics then we burn it's true now he does exclude papist now what I want to say is that everybody has a kicker up his sleeve if it's not Catholics it's something Nat hento spoke absolute free speech talk for a long time until a disciple uh of Faron began going around in campuses saying things that hento found hateful and then he said we can't have that what I want to say that the we can't have that position is not only a possible position not only a sensible position that structurally and philosophically it is in fact the position that everyone has even if they're denying it let me first say that we're going to take a vote on this at the end this great panel and you're going to have to decide whether you're for the Libertarians or dignitarian so listen closely also those of you who haven't passed up audience questions uh can do so my uh question is um is this um debate between the Libertarians and dignitarian and who's law going to Prevail being made obsolete by te technology here the deciders were not the president of Egypt and we're not President Obama but these 22y olds and flip-flops were the First Responders in Dublin and uh India and and uh places like that who report up to the top lawyers at Google and Facebook uh and the First Amendment doesn't bind Google and Facebook so really is this an academic discussion because the decision is going to be made not by courts enforcing the First Amendment but by young lawyers at internet service providers uh Greg well uh I mean for me what's the most interesting about that is that we're starting to see and and I look at the the harm arguments and all these hack need Arguments for or against freedom of speech and I realized one of the things that the information science folks the the Facebooks and the Twitter people actually get almost better than anybody is that the most fundamental value of speech is not the uh producing the platonic form of truth it's not because discussion will actually let us understand what the form of Truth is it's the fact that I now know that you're angry at me it's fact that I know what PR the price of rice over there it's now I know what the trends are all of these littl te truths that can actually be revealed and I think by if you look at Twitter you have an unparalleled chance to see something that is as close as we're ever going to get to the collective unconsciousness of the species and it's what a discouraging St it is it is but it's important to know what we're like for good and for bad I think that this is important information and this really primitive idea what what I make I make fun of my own people for having the uh the British side for having what I call sort of like oh so we're taking the the dinnertime response to unpleasant talk we're just not going to talk about it meanwhile knowing um that people have bad opinions um and that and how people respond to them or that people have strange ideas is incredibly valuable the ostrich approach does not work it cannot work we we'll always know that but I don't think technology will change anything because uh it Remains the case that you can the government can bring lawsuits against internet service providers it can uh bring lawsuits against uh Google and and require Google to take things down um people uh most people you know there's a huge amount of stuff that's set on the Internet by Anonymous people that nobody pays any attention to so there's no need to sue them nobody cares what they say um if it's somebody who's who like a politician or or a or or a prominent person uh then everybody knows who he is and and where you can uh Sue you know back at the early stage of the internet the concern was actually the opposite that um there's this famous case involving Yahoo and France Yahoo had Nazi memorabilia on their website and the French government sued them and the worry was since Yahoo has uh you know its website appears everywhere that French um uh I guess defamation law would apply in the United States that turns out not to be the case because these uh companies can control where uh you know what appears in their websites in different countries so I I I think it's a bit of a of a red herring I don't think these Google guys uh they can get sued just like anybody else they can get fired just like anybody else I don't think it's going to change much we've just seen turkey shut down Twitter um and uh I think uh what people forget is that the internet uh actually operates because the government allows it to operate it opens a lot of it uh it owns a lot of the uh infrastructure the NSA can tap into it and figure out what people people are thinking and and and saying and so uh we're not going to live in a Libertarian uh Society Professor fish Eric says turkey shut down Twitter what happened then is Greek football fans had a habit of saying that Kamal Ataturk the founder of modern turkey was gay he wasn't as it happens but it's illegal to say that in Turkey because it's a form of defamation not against gay people but against Ataturk uh the um which is against the law uh Google was asked to take it down they initially refused a Turkish prosecutor said take it down uh all over the world instead Google just blocked access to Turkish users using their Internet Protocol addresses and as a result Google was banned from Turkey for a couple years uh Professor fish it was uh the decider at Google who was woken up in the middle of the night she has to decide is this video actually Blasphemous under Turkish law in which case she'll take it down or is it political commentary in which case it'll stay up and oh by the way she doesn't speak Turkish and then multiply that by people criticizing the Thai King in Thailand and you know doing stuff that's illegal in India these lawyers are making these decisions are you confident that they will make the right ones no I'm not confident that they will make the right ones anymore than I'm confident that the you know laws like the ones uh that Jonathan uh rehearsed uh will no longer uh be passed what I am confident however is that the strong Free Speech Doctrine has has no reality in fact and I would I would go back to a formula that the great judge uh Learned Hand put forward that I'm sure everyone on this panel and many in the audience will know it's a cost benefit analysis basically he said in matters of free speech what you want to do is calculate the harm that will be produced by allowing the speech to flourish and then balance that against the harm that will be produced by trying to regulate it and that suggests that it's a caseby casee analysis and that you have to take account of the HS without entirely surrendering them to them but not ignore them and therefore surrender to some abstraction and for a book some of you may know this book that makes this argument more powerfully than any in recent years I recommend Jeremy Waldron's book the harm in hate speech he's a law professor at Oxford and NYU and a native New Zealander so some kind of international flavor to his work W wal's book is a powerful defense of Eur European hate speech laws and he focuses book is it uh realistic in terms of taking account of who's making the decisions Waldren envisions European Regulators enforcing their will and European courts and so forth but uh really it's the terms of service of the internet service providers that are deciding things is the ability of European Regulators to enforce their will overtaken by this new technological world even if you're persuaded by walren and the dignitarian so you're asking about the technology and not about the walren argument I'm I'm saying is you know I'm saying are the dignitarian just missing the point they can they can claim that the European approach is better but it can't be enforced I I agree with with Eric on this I think that uh although there's a lot more tools for freedom of expression popping up as no one in this room needs to be reminded there also a lot more tools for monitoring expression popping up so I think you know one one reason you always want to be on a path panel with Stanley fish if if you can is within five minutes he's going to go to the fundamental issues and the technology uh does not begin to address the fundamental issues and and that's still very relevant what kind of society do we want to have and what are the basic ground rules going to be that's right Greg you talked about uh Twitter as the what was your phrase the collective voice of our cont Collective unconscious of the species UNC by the way absolutely so there was a twtter uh Scandal recently there's one every week the Tweet heard heard around the world uh the media company IAC has fired the chief PR executive she tweeted going to Africa hope I don't get AIDS just kidding I'm white uh there was a Twitter mob yeah uh against her and uh she was called a racist and she was fired um John said technology doesn't change things but you used to litigate these campus things on a caseby Case basis suddenly the mob is global right would you defend her rights to say that and how can you defend it in a world where the Twitter sphere go goes viral it's a crazily unsympathetic case and obviously you um for if you're a PR flak and you make make a statement that's stupid you're going to get fired for it but what was interesting to me was the extent to which it turned into a um Out For Blood cause for the people she was on a on a flight before she made it and by the time she got off she was an international uh villain um negative celebrity and I see this this happening a lot in the way we debate with each other um that essentially social media has let us speed up the way we argue but it's also sped up polarization and it's also sped up sort of a sense of sort of uh tribalism so I think that that some level the the ability to argue this quickly I I I'm actually optimistic on this I think it will teach us some amount of sophisticated lessons about what it actually means to live in a tolerant Society but I feel like right now we're going through some ridiculous Growing Pains where Ryan holiday wrote wrote a good um article about this recently called outrage porn just calling BS on the fact that we are addicted to outrage and it's and partially we do this because it's really fun for us it really gets our juices going we actually really like it I particularly like the fact that you know that a lot of times I think we're harnessing in the anti-bully movement sometimes you end up seeing people harnessing really aggressive I don't know bullying energy to go after the whatever Target they're actually allowed to go after so I think this great conversation that we're having as I was kind of alluding to is teaching us a lot about our nature and I wouldn't want to stop it unnecessarily for some uh for some idea that maybe we can somehow perfect ourselves make ourselves different I think we should actually take a long hard look at who we actually are I love I just want I can't resist the the idea of addicted to outrage recalls the definition of obscenity it has to appeal to the puran interest and be patently offensive Kathleen Sullivan said this means it has to turn you on and gross you out at the same time Professor fish I agree with what Greg just said and I think we we all of us on this panel would wanted distinguish uh Between the pressures that can be brought against speech uh which are social and cultural and the legal uh pressures or uh uh even regulations and criminalization so the congressman who recently said that nothing would uh be lost to the world if the entire National Basketball Association would be shut down the only result would be an increase in Street crime uh well uh when he said that within 20 minutes he had to this is our new favorite phrase in society walk it back you know I I hope none of you are walking anything back uh but uh but of course he is paying a price but it's not a a price exacted uh by any legal regime uh but it's a price uh exacted uh by uh the cultural norms and senses of appro we we all do agree on that and where you and I I think probably disagree is I think those cultural means are by far the best mechanism to discipline offensive and hateful speech and then in fact the official means when you get authorities criminalizing it are counterproductive yeah and I would say in response to that brandise like statement that is the best brandise made two powerful statements he said uh the the best the remedy for for bad speech is more speech I'm only paraphrasing uh and and he also said Sunshine is the best disinfectant and my response to that is that the only counterargument is all of recorded history uh and that for example if you allow something like Holocaust denial uh into the general atmosphere on the basis of strong First Amendment principles what you will have is not Holocaust denial withering but growing growing and growing it's so funny because basically like my whole argument you know partially because I grw up with a father who took 12th century Russian history very very seriously um is that human history is such an argument for freedom of speech when you start looking at sort of the the blossoming of of of there was a great book about it um which talks about liberal science kindly inquisitors is about sort of the rise of an intellectual system in which it's uh [Laughter] questioning this you buy it after the show we're going to have a book signing that that gets away from the time honored historically relevant uh theory that if you disagree with someone about fundamental issues you better chase them off you better behead them you better set them on fire you better ostracize them you better get rid of them that's sounds good that's wow that's human nature the idea of actually hearing out people you disagree with is actually I consider like a technology it's it's an innovation and what I find interesting is on campuses I feel like the theory is going going much more down the side of sophisticated thinkers don't believe in free speech meanwhile when it comes to results of tests of of what happens when you let uh Pilots talk back to their co-pilots or co-pilots talk back to the pilots or you let um institutions actually have a back and forth that actually is an incredibly healthy and and productive thing I think the evidence is just getting better and better for Free Speech but we're losing more and more faith in them Pilots call each other you know racial epithets you don't want them saying that and I'm sure if they did they'd get fired instantly but the feedback that the information feedback though some information not all information and that's the difference between us and you we think it's an empirical question yes that's right time and again there is an empirical question whether the par parameters for uh speaking should be broadened or narrowed it depends on the circumstances in some campuses you might want uh broader uh uh Speech and others you might want narrower in some historical periods like the viar Republic if you want to use a historical period was probably a bad thing that speech was so free in another per or Rwanda is another example where uh uh freedom of expression over the radio led to led to a Holocaust there are other situations like the United States now where uh extreme speech is not as harmful M and uh uh protections aren't as uh as as necessary as in these other places but it's always an empirical question it always requires a pragmatic judgment these these uh this kind of fundamentalist approach you take based on some reading of history is just uh it's not appropriate under any circumstance so I would um I would argue that in practice these wonderful balancing tests which we do so finely very quickly devolve into lawsuits and heavy-handed governments and shutting down one and people with political power using it against people without political power but even setting aside that very big issue of can you really have these very fine-tuned tests that you talk about I would argue empirically that history is absolutely on my side and I have lived it I have seen in the past 20 years hate speech against homosexuals is a resource in the liberation of gay people in this country I wouldn't have said that 20 years ago a man died the other day named Fred Phelps a oh yeah Fred you know Fred Phelps now what he did would be illegal in any country in Europe he picked military funerals with signs that said God hates facts that's pushing it even for me guys okay that is way out there the Human Rights Campaign could have hired this guy in the sense that he did so much to expose the hate on the other side it helps us when we have these people to argue against and when they are out there front and center we've got 20 years of an extraordinarily successful minor rights movement in this country to prove it it can work that way sometime as in the example that you've just given but it can work in other ways at other times which is what uh Eric just said and I think in the I think in this context of uh anti-Semitism uh there's a general feeling in this country that anti-Semitism uh at least uh in the United States uh is a phenomenon of the past or at least verin anti- anti-Semitism of the kind that was very very active in the 30s and 40s in this country and I happen to believe that that kind of virent anti-Semitism could flare up tomorrow uh and each time there's something like the Bernie madeof case I'm afraid that it will this may simply be a feature of an unfortunate fact that I'm older than you are I have to ask much older I have to ask both the dignitarian and the Libertarians about this morning's news the Supreme Court heard uh the most important Free Speech case of the year The Hobby Lobby case involving the qu the question of whether a religiously motivated owner of an arts and craft store called Hobby Lobby could refuse to provide the contraceptive coverage required by the Affordable Care Act known as Obamacare to some because of his religious motivations um Eric uh you know the Supreme Court and the citizens united case went from protecting the First Amendment rights of individuals to those of Corporations on Free Speech grounds and it may now extend it to religious rights corporations as well you were skeptical of American libertarianism in our earlier discussion uh did the court go too far in Citizens United and should it not extend this right in Hobby Lobby yeah I think it did I I think this is a good counterpart to counterpart to Jonathan's argument which is that the First Amendment as it's actually practiced in the United States doesn't always uh protect um unpopular people or weak uh groups it you know can be once the doctrine's in place it can be used by any anybody including uh by powerful corporations and by powerful groups and in fact uh in this very interesting twist uh sometime from the 1970s to the 1980s First Amendment absolutism went from being a liberal uh position to a conservative position and it's now a lied to uh property rights and um uh the the rights of Rights of Corporations Hobby Lobby really a kind of religious freedom case it's it's in the same uh it's in the same ballpark my view is uh you know let the political process work out these compromises another thing that Jonathan said early on which which I I think is in ttention with First Amendment absolutism if you think people can work out these tensions between uh religious conscience and uh rights of women or um um other sorts of uh uh beliefs and concerns then you don't want the Supreme Court and the other courts uh applying this Doctrine in order to uh defeat these compromises okay I want a Libertarian response to this power the dignitarian are being consistent at least Eric is and he says that you shouldn't enforce the First Amendment too strongly in this context uh you know there are some ACLU liberals who defend Citizens United and uh did uh are you barking up the wrong tree now that you've embraced the First Amendment which is being used to strike down public accommodations laws and much of the regulatory State uh I I just think it's interesting and and I never heard anyone say so directly that in the 70s and 80s um free speech became a conservative issue um I really I've always wanted to write an article you know saying do you take that liberals do you actually believe that this is no longer a liberal issue and it's true that on campuses I end up fighting a lot of people who come from the left side of the spectrum who believe that who who um you know think that Free Speech should be limited for any any number of reasons sometimes sometimes Noble sometimes not so much um but I do think that part of the tactic you know labeling for example me a fundamentalist when it comes down to it I actually agree with the Supreme Court for the most part on on freedom of speech issues um and that uh or saying that oh but oh now now liberals don't believe in free speech because now conservatives can use it what kind I mean that's that's a kind of startling argument to me that oh it it's a negative thing that now that that a right is available to everybody just so I've got your position citizens united was correct and Hobby Lobby should be protected you think I don't know enough about hob Hobby Lobby I do think citizens unit was correct Jonathan um to me the core issue in Hobby Lobby isn't freedom of speech it's what's a corporation uh I tend to think corporations aren't people and that the first amendment should not be applied to them as it should be to people but it is not an area in which I specialize Professor fish eager for your thoughts well I want to once again uh indicate my agreement with Eric uh as far as Citizens United goes the topic that was discussed uh in Steven's 90-page descent and dismissed um in the majority opinion was the topic of corruption that is is it a matter of empirical fact that a great deal of money expended um in the ways that are now possible will corrupt the political system or has a tendency to corrupt the political system that's the kind of question that I think should be asked not questions uh which depend uh on some abstract uh uh value like freedom of expression but it's not such an abstract value I mean the masses opinion that you were talking about the Learned Hand one we one of the reasons why you know I make the point that we're not um that that it's not complete Free Speech absolutism is because when uh even baked into the law that we that we uh that I find academics being so dismissive of um you know when it comes to freedom of speech there's something called strict scrutiny that essentially under the right empirical circumstances and and in in constitutional classes you always come up with the the scenario where I'm like well you know in that case you know when when it's that's how you end up with the incitement doctrine that's how you end up with the with with the limitations on free speech that I think that the Supreme Court and we we agree with but when it's this extremely highly subjective uh uh uh standard that puts uh that gives uh uh also flawed people the power to decide which opinions they like and dislike that is a formula for disaster that I watch Happ take place on campuses all the time and it's amazing how quickly administrators learn and students learn the code words they need to do to to silence the the opinions they disagree with you just can't avoid subjective standards in the law they're all over the place time time place and manner restrictions which give uh the government The Authority you know to say the protesters can be over here but not over there or you or you need a a license uh before you can March those uh raise incredibly complicated questions and judges have to decide you know somehow using very subjective standards so the issue isn't really whether the standards are subjective or not the issue is really whether you know how much uh the Democratic process will determine the extent to which people are permitted or not permitted to say whatever they feel but a central part of the analysis in time place to matter law is Viewpoint neutrality and I think Viewpoint neutrality and content neutrality are actually when you get the closer you get to uh the expression of pure opinion um that's when you're you're on the on the clearest ground within the law and I think that's actually a very pragmatic standard I think that works very well empirically make and also making the point that essentially my opinion um is something that I should that I should be entitled to is something that um uh that that can be very well maintained while at the same time um trying to limit the influence of bias of power well as you noted I mean even in in defamation law it's still possible to defame somebody especially if it's a priv private person rather than a public person def uh when you defame someone you're simply expressing your opinion that means a a judge somewhere is going to have to decide whether your opinion has enough evidence and is is that's not entirely right though I mean basically when when it comes to uh defamation law one of the one of the threshold questions is whether or not this is a false uh assertion of fact and and that that also makes perfect Common Sense am I saying I hate this person that's not defamation am I saying I I know for a fact this person is a pedophile that's that can be a defination particularly if you knew you you knew it's lying so a lot of these actually are less problematized than I think you're making that debate but of course since we've had in defamation law the rise of the idea that public officials uh it's not that they can't be defamed but it's much higher a much higher stand to defame them and then first it was well public officials then it was those who have dealings with public officials uh and so I think that the effect here uh was to weaken the possibility of defamation in what I would call the New York Times versus Sullivan Spirit interesting and we should note that uh earlier this month New York Times celebrated its 50th uh anniversary so happy birthday New York Times except from Professor fish we have a series excellent audience questions and I'm going to jump right in uh what reassurance do we have that gay rights Advocates will not trample on the First Amendment rights of those of us who have the nerve to disagree Jonathan there are a lot more of you than there are of us and that's the Assurance you have this will have to be worked out through the political process but there are tons and tons and tons of Christians out there and they are going to stand up for their rights and they are going to be heard U that's that's how this process works it's initially adversarial but I am very confident Jeff that um we can and will get to a point in 10 years where we'll have a pretty good well agreed upon set of rules that will have worked out for where these boundaries are going to be is there a limit to hate speech what is it Greg I don't believe in a hate hate speech exception um neither does the Supreme Court I do think that the court struck a pretty good balance in the Davis fan R County opinion um in outlining what harassment looks like and harassment ends up looking like in the law again what I think that harassment sounds like in in the English language if it's severe persistent and pervasive if it's targe of if it if it's harassing somebody um then that's actually I think a good guideline for for what you're not allowed to do merely having a extremely obnoxious opinion I think that should be protected and actually I would go farther I think that it's one of the aspects of actually truly respect respecting pluralism is is to uh understand that that sometimes uh people from different classes from different age groups from different uh from different backgrounds is going to have an opinion that you might right now consider obnoxious and actually I want to take an example here there's a great example of bertron Russell being being kicked out of Cooney um when he when he had a job there in the 1940s before the doctrine of academic freedom became strong in the law and he was kicked out because he thought that masturbation was okay um that he was tolerant of homosexuality and that basically he was a modern sort of political liberal in a lot of different ways and he was kicked out because these ideas were considered immoral I think that pointing out that even that without these systems that opinions that we now absolutely take for granted um have been affected in the fairly recent past is something that's really crucial to remember no I think that's wrong that is I certainly think that it was wrong of of the city to K out to K out beron Russell but what makes it wrong is the fact that uh the uh the city and then the uh the courts that uh allowed it uh were how shall I put this uh they were what was happening was that Russell was being hounded out because of his political views not because of Any expertise that he might have had in philosophy or mathematics and that General principle which was introduced uh in 1915 by the American Association of University uh professors in its general statement on academic freedom and tenure far predates New York Times versus Sullivan or any of its developments it's a very strong distinction which I entirely support between academic work which is contemplative and exploratory um and political action uh and therefore neither should professors should not perform political acts in their classroom nor nor should they be vulnerable to dismissal for political views they have outside their classroom that's a 1915 idea and so I don't think uh it was the gift of New York Times versus Elvin what New York Times versus Elvin has given us is Holocaust denial what wait do we all agree yeah do we all agree that Holocaust denial is a terrible thing that should never be allowed ask a different question I'm a Jew I I want to hear it I think that banning Holocaust denial is like fixing global warming by breaking your thermometer I I think I think I think it depends heavily on context if if you've got a society which is generally tolerant and people are uh are um uh making all kinds of arguments about all kinds of crazy things and this is one of the crazy arguments that people are making it's probably not a big deal but if you've got like a country with a small number of Jews and people don't like them and this idea is beginning to develop but hasn't quite yet uh dominated uh Society I think you could make a pretty good argument for Holocaust walk against Holocaust I think I think Nazi ger and I think Germany you know as a kind of penance for what happened in that country their laws um against uh Holocaust denial and their sort of laws against uh ESP spazing Nazism are are are are are pretty are pretty sensible in that context every other European every other European country a problem with that view is that in situations that are actually like the ones you described where there's a small and battled minority and a large hostile public you're not going to pass laws that are going to protect the small minority you're going to get what you see in Uganda Nigeria right now which is the majority passing laws to oppress the homosexuals Russ and using speech laws and Russia using speech laws to oppress the homosexuals so it depends it does depend because speech laws were used in order to allow the uh the ragtag Nazi band headed by someone named Frank uh to march in SC in skoki Illinois the march in fact never occurred for other reasons but if it had occurred it would have occurred because of a strong First Amendment opinion written by a judge who practiced what I call the rhetoric of regret he kept saying this is awful I hate it it's going to do a lot of harm I absolutely regret the fact that we have to allow these horrible things to happen but there's the First Amendment there's a bad argument and it's I always get this when I when I speak at at universities and I totally agree with Stanley um that uh when it comes to sort of does does someone who's espousing Holocaust denial views um at at a measure up to academic standards and should get a job there of course not it's it's it's horse mchy but that's one of the reasons why it uh why I think that a lot of times when you uh pass laws that ban it um you are actually are going to encourage it because listen if if someone has to say um I believe the Holocaust didn't happen Okay prove it defend defend that position I can't here's the following 10,000 pictures oh if you have to defend it out in public it they can have you ever gone on the websites they defend it in three 400 page volumes I've read this stuff and if you and basically if you're if you're a paranoid fanatic and basically your whole your whole your your your your whole idea is is to say that the Holocaust never happened but I'm not allowed to say it because there's a conspiracy against me to say it and then you never have to defend it that's actually a formula for for permeating the society and I'd actually say that Holocaust is more denial is more successful in countries that have uh anti um these kind of hate speech laws that it is in the US where it's completely relegated to the fringes because of free speech you know it's interesting to remember that that the viar Republic had robust laws controlling speech and shut tried to shut down the Nazis and that Hitler used those laws to catapult himself to power he made himself a national symbol of resistance to this kind of thing you don't want to give these haters the platform of a Supreme Court case and I and that's definitely one thing I always love what when people bring up sort of Nazism as argument for hate speech laws I'm like the Nazis were not a result for excess of excessive concern for individual rights gentlemen this self-moderating panel yeah oh are you still here I'm still here and I'm loving every minut haven't heard a I did not realize that a topic like the First Amendment which everyone in America thinks that we all agree on could generate such nuanced and thoughtful and provocative disagreement it's time for a vote ladies and gentlemen uh we're going to reduce this complex and Nuance debate to yes yes or no can we have predictions from the panel sure two minute predictions who's are you going to win no Eric not on the vote Eric Greg are you gonna win I don't want to influence the vote U John you gonna win uh I'm GNA say yes okay who is persuaded by Professor fish and Posner that the European dignitarian position on free speech is is convincing and who is persuaded by who is persuaded by Jonathan and Greg that the American libertarian position is more persuasive all right I have a question wait great you're going to end the panel with a question to the audience thanks a lot raise your hand if you changed your mind no no that's that's a good question oh yes thank you ma'am you which way did you switch a l all over the place oh what a beautiful summary of The Spectacular panel please join me in thanking our panelists I EXC clap for the other people on the that deserves a handshake great job thank you wonderful you're my favorite please come and join us downstairs buy the books have some more drinks thanks for a great discussion come back soon wow