Does the First Amendment Protect Hate Speech?

may I have your attention what a well-behaved group I'm Harlan Crowe and I want to say thanks to everybody for coming out tonight and being here for this debate my job is really simple I want to welcome you and I just did that so that part's easy I want to also say thanks to Jeff Rossen Jeff runs the National Constitution Center and this is the second time we've had a chance at old parkland to work with Jeff and his colleagues we've had a quite a number of debates here at old parkland but the very best one before tonight was one that Jeff organized here last year so I'm confident that the tonight's program will be even better Jeff Jeff brief just briefly Jeff attended Harvard Law and Oxford University he's the author of six six books including a new book coming out on William Howard Taft I think in 18 there's a lot more stuff in his bow but I'm gonna skip all that and just say Jeff thank you and welcome [Applause] thank you so much Harlan and thanks to you for having created this beautiful debating chamber and for bringing people together of different perspectives and for your commitment to inspiring civil dialogue here at Old parkland and across America the last debate we had here was indeed one of the great debates that we have hosted at the Constitution Center but that was a tribute both to the beauty and significance of the venue and to this incredible partnership between the National Constitution Center the Federalist Society and the American Constitution Society I can't tell you ladies and gentlemen how meaningful it is that the Constitution Center is able to bring together these two great lawyers organizations representing different perspectives on the Constitution for a series of travelling debates about the most significant issues facing America we've now been doing this for two years we've been from Dallas to San Francisco to Chicago two weeks ago where we debated the question of the first amendment to Washington to LA and it is thrilling to see how hungry people are for civil substantive debate and how much light is cast by asking people to do what I'm going to ask you to do now and that is to separate your political views from your constitutional views that's I hear a chuckle but I know it was an informed urbane chuckle of appreciation for the necessity of this crucial methodological task because this is what we're compelled to do as citizens this is what the founding fathers had in mind when they insisted that American democracy could not survive ignorant and free and that citizens had to educate themselves about constitutional principles in order for them to survive and that was why the US Congress created the National Constitution Center with an inspiring mission to disseminate information about the US Constitution on a nonpartisan basis in order to increase awareness and understanding of the Constitution among the American people what an amazing inspiring significant mission that was that we were given during the bicentennial of the Constitution and we're fulfilling it with this debate tonight and that's why I'm asking you to separate your political from your constitutional views what does that mean in the context of two debate today is extremely significant debate namely resolved does the First Amendment protect hate speech it means that you might conclude that hate speech is a terrible dreadful menace to American democracy but that the First Amendment protects it or you might conclude that hate speech isn't terribly significant but the First Amendment allows the government to ban it and by making that separation and by preparing yourself to hear the best arguments in America on both sides of this debate I'm so thrilled that we persuaded the debaters I'm about to introduce nominated by the American Constitution society and the Federalist Society to converge here because you're about to hear the best and purest version of a debate that is at the center of American life it is being vigorously debated on campuses it is being vigorously debated online and we you need to listen very closely to these arguments so that you can make up your own minds and that's why we're going to do something else which is important I'm gonna ask you to vote before and after the debate and the goal of these debates is that you're going to be open-minded enough that we'll have some minds that might be changed you might shift from one side to another I do have to confess that we debated this question in Chicago about three weeks ago and precisely no mines were shiftiness or his health of the debate and the final vote was exactly the same as the initial one nevertheless a large percentage of the audience said their minds were open to the arguments on the other side and I know that yours will be now you need no further introduction from me except logistics here's the format we're gonna we're gonna vote before the arguments each debater will have ten minutes to make an opening argument followed by a five-minute rebuttal I'll then ask them some questions for about 10 or 15 minutes and then we'll invite your questions on note cards so please write them down and I will read them with my bipartisan constitutional reading glasses and we'll have about 15 minutes more and then we'll have closing arguments and then we'll vote again and the winner will be the person who changes the most minds so please try to be as open-minded as you possibly can silence your cell phone please and now it's my great honor to welcome our debaters shannon Gilreath is professor of law and women's gender and sexuality studies at the Wake Forest University School of Law he teaches constitutional law sexual identity and law freedom of religion and gender and the law as well as courses in women in the women's gender and sexuality Studies department as a core faculty member and his extremely significant articles on this topic have appeared in law reviews and he has recently published a wonderful op-ed in the Dallas Morning News representing his views David French is senior writer for National Review and senior fellow at the National Review Institute he is an attorney whose work focuses on constitutional law and law of armed conflict he's former president of the foundation for individual rights in education or fire a former major in the US Army Reserve and his piece representing his views has also appeared in the Dallas Morning News please join me in welcoming our debaters all right it's time for our first vote not since Jefferson voted alone has there been such a significant vote so think very carefully and I mean it separate your political from your constitutional views as you answer the question do you agree with the resolution the First Amendment protects hate speech if you agree with the resolution use the arrow keys to highlight yes if you're opposed use the arrow keys to highlight no and then hit Send once you've hit Send your answer will be displayed back to you which means that your response has been recorded absolutely not excellent I see attentive faces our votes have been recorded and our debate will now begin and we are going to begin with the debater in favor of the motion the First Amendment protects hate speech for ten minutes please join me in welcoming David French [Music] first thank you very much for hosting me I'm honored I've I've worked with you on a number of debates of the National Constitution Center it's always an honor the National Constitution Center puts on incredible debates I've never had the honor of being here this debate Hall doesn't quite meet my normal standards for debate halls but the First Amendment is at stake so now this is a beautiful place and a fitting place to have this debate and and be it's a fitting place to have this debate because I want to begin where our nation began with our founding fathers and I don't want to dive right into the text of the first amendment I want to dive a little bit into the philosophy in the worldview of our founding fathers because I think that many of us many of us in this hall would say our founding fathers in spite of the fact that they were quite flawed turned out to be relatively wise men in a number of ways and one of the ways that these founders were wise is they recognized at the time when they were establishing our nation that they were flawed and that our nation was flawed in fact when our nation was founded there were vociferous disagreements in the founding generation about some of the issues that still divide us today the power of the federal government versus the state government most notably about the original sin of the American Founding slavery some of the most potent and powerful issues that still divide us today divided them at that time and so what our founders understood they understood that they were flawed they understood that mankind before them was flawed and they understood that every single generation of Americans that was going to be born live and die under this new nation in this new nation was also going to be flawed and so what did they do about that what did they do they established a constitution and the constitution contained with it profound limits on the power of government but that wasn't enough that wasn't enough for some of the founders they would only ratify this Constitution if there were additional limits explicit limits placed on the power of government principally those limits that so the most important of those limits are contained in the First Amendment to the Constitution which establishes most notably and principally for the purposes of this debate a right to free speech a right to free speech now it's interesting the temptation to use power to marginalize and oppress is so prevalent and so constant and so persistent within all of humanity including within the American experiment in the American nation that very soon after ratifying a constitution and a Bill of Rights that contain a right of free speech even in the founding generation there began to be a tax on those rights of free speech the Alien and Sedition Acts come to mind other very there are other attacks even within the founding generation on the right of free speech and you would say why why is that why would there be attacks throughout history throughout American history on a right of free speech and the answer is really pretty easy it's that right of free speech that is most directly and immediately a threat to power a threat to an establishment a threat to people who hold the reins of government and it's we've seen it time and time again we've seen people who use the power of free speech to gain power suddenly begin to not see so much the value of free speech when they become the ones who are being criticized and so we actually have a long and kind of winding and checkered road in the history of the United States and preserving and protecting free speech it's not an a story that necessarily is happy with every single generation but something interesting began to happen in the 20th century and the 20th century the Supreme Court of the United States began to aggressively protect free speech to a degree that it had never done so before one of the first things that it did and a lot of people don't realize that is it incorporated the free speech the First Amendment and applied it to state and local governments early in the 20th century I think mid 1920s before for more than a century in America a century and a half in America's founding a state government could suppress your rights of free speech and it was perfectly constitutional under the Federal Constitution because the Federal Constitution was held to only restrain the federal government in fact that's what many of the slave states used to suppress abolitionist speech was that ability that they had free of the federal government to implement their own speech rules so the Supreme Court incorporated the First Amendment and applied it to state and local governments using the 14th amendment as the mechanism then it began to change the governing standards and the rules governing free speech it used to be for example there's this famous case called shink maybe you've heard of there's this quote that you hear from it it's no one can quite cry fire and a crowded theater it's sort of a case that's in a shorthand way used to justify an awful lot of suppressions and in attacks on free speech began to liberalize free speech disregarded the Schenck decision and announced a new series of standards that were very broadly predictive of free speech and I think more in line with the founders vision by 1969 the standards of free speech had been established to where as a general rule you're not going to be able to censor somebody unless their speech was likely to cause imminent lawless action so for example right here in this room I could say I believe in the violent overthrow of the United States government and that's protected speech but if I'm holding the pitchfork and you're all holding pitchforks and I say let's storm City Hall now because I'm inciting violent imminent violent action that that would be a violation that would not be a violation in the First Amendment to suppress that kind of speech now something interesting happened in the United States as free speech law changed as our country became more consistent in relentless and protecting individual liberty what is it that happened what is it that changed America had by many measures what you would call a civil rights explosion you began to see from Matic changes in laws that had de jure law de Jero segregation de jure a discrimination against black Americans began to be lifted we saw massive changes in conceptions of LGBT rights for example huge changes in conceptions of women's rights we began to see civil rights laws passed we go we began to see critiques of long-standing American legal institutions that had suppressed the few for the sake of the powerful and the interesting thing is there's a lot of people who knew that would happen who knew the liberating power of free speech among them Frederick Douglass the famous abolitionist he gave a speech in Massachusetts when abolition the speech was being suppressed and his famous comment was that slavery cannot survive free speech the auction block would be over in the face of free speech that free speech is the great moral renovator of our government in our society that's its power that's its power and if you look at the moral and cultural and social renovations of the United States of America in many ways you can trace them exactly and you can trace them per closely to the liberalizing in the freeing of Americans to question authority the freeing of Americans to say to flawed people who hold power this is wrong and to do so without fear of punishment and so my proposition is that any movement any legal movement any cultural movement that says to American citizens well now we've got it figured out now we're not so flawed now the people in power are not so flawed we have figured out truth we're different now we're different from every other generation we can impose rules that will make our society better in part by restricting what other people say rather than by rebutting bad speech with better speech that those are inherently suspect that in the language that some folks use not typically conservatives like me that's getting on the wrong side of history that's turning the clock back but in this case it would be literally turning the clock back on free speech law and my suggestion is quite the opposite my suggestion is that it is that very ability to confront power through the use of free speech that not only limits the exercise of that power it guarantees the exercise of virtually every other Liberty that we enjoy how would we know that people are losing due process rights unless we can exercise our First Amendment rights how would we know that people are being deprived the right to counsel for example are being subjected to cruel and unusual punishment unless we can use this free speech rights how can we know that someone is losing the ability losing the equal protection law unless we are exercising our free speech rights it is a Liberty that guarantees the exercise of all other liberties I'll end with this I was in a conversation with Walter Fauntroy with who is a legendary civil rights leaders one of the founders of the Congressional Black Caucus and he was somebody who marched with dr. Martin Luther King and he and I say marched with them not in the sense of like number 100,000 in the crowd but like right next to him and I asked him to what do you attribute your remarkable legal success in the 1950s and 1960s and changing sometimes centuries old laws that had discriminated against african-americans and he said I'll never forget it Almighty God in the First Amendment the First Amendment gave me the ability to speak and Almighty God changed hearts and I don't think that it in now or at any time in American history is at the right time to say that we know the answers and we can suppress those who disagree thank you thank you so much against the motion please join me in welcoming Sangha Ruth [Applause] [Music] so I too would like to express my gratitude to everybody involved in extending this invitation to be in such a lovely place to discuss what I consider to be perhaps particularly in this historical moment we find ourselves in a rather urgent question the first thing I want to do is to say very clearly what I think is at stake in this debate as I said in the Dallas Morning News earlier this week I do think actually that most so-called hate speech or maybe one should say hateful speech is in fact protected by the First Amendment I think people can be justified and expressing hatred of a variety of things for a variety of reasons rather tonight I am concerned only with what I call in my work and in my books on this subject anti-equality speech to define it simply this is speech that is really propaganda it has as its aim the creation or perpetuation of inequality for a targeted group which when that group has been historically marginalized based on some shared identity characteristic like race or sex or sexual orientation and where the inequality is accomplished through the dissemination of false or misleading information now this is quite a narrow class of speech as it should be because I happen to believe that democracies ought generally to err on the side of more speech and not less but anti-equality speech understood properly is understood as speech and action simultaneously to be clear I am NOT saying that it is action and therefore it is not speech I am saying that in this context the two are inseparable discrimination which is really what I'm talking about does not divide neatly into acts on one side and speech on the other side speech acts and acts speak when it comes to social inequality this is ineluctably the case what is an inequality question a question of it's a question of hierarchy speech in very real and material ways constructs social reality it creates hierarchy and people fill it now what's the constitutional basis for a theory that would curtail some speech that qualifies as anti equality speech the answer to that question is the Fourteenth Amendment and the Fourteenth Amendments commitment to equality originally the constitution of course contained no such guarantee no such commitment to equality but the modern doctrine of free speech as mr. French pointed out has really crystallized only in the late 1960s about a hundred years after the ground on which our constitutional form of government sits had been resettled by the Reconstruction Amendments following the Civil War and yet somehow through the urging of mostly liberal organizations like the ACLU the doctrine of free speech has developed as if the Fourteenth Amendment did not exist in my view to exercise equality in any meaningful sense implicates speech in two important ways first you have to have a right to speak which is to say you have to have a right to a positive a positive right to your own voice we'll put it that way second you have to have a right to be free from speech that is designed to dehumanize and disenfranchise you in the public space this recognition has in some context in the United States propelled the law to evolve to prohibit certain types of speech such as a sign reading no blacks served here or the words of a boss have sex with me or you're fired in fact until very recently these kinds of this kind of speech has not been discussed legally a speech at all but rather as action with reference to what the words do in real time which is to say discrimination they do discrimination and consequently the Civil Rights Act and the legal structures that have developed to curtail racism and sexism in various areas of society is not generally seen as problematic viewpoint discrimination but rather is a prohibition of certain kinds of acts which are inconsistent with a societal commitment to equality whether or not that inequality that discrimination is accomplished through words only for example and brace yourselves for this one a court had no trouble determining that men chanting in the presence of their only female co-worker a mounted sex discrimination simply because the discriminatory environment was created using only words in other words the court saw that speech acts outside of specific contexts like employment however the u.s. approach has been to treat the same kind of targeting speech that would be problematic say on the job as unproblematic as not implicating equality interests at all current free speech doctrine insists that where the speech does not amount to face-to-face fighting words or defamation against an individual or is not legally obscene anything no matter how racist or how sexist or how degrading goes it is worth noting that the u.s. is virtually alone in this approach most democratic governments do in fact provide some measure of protection from anti equality messages in the public sphere in Germany for example the swastika indeed the Nazi Party itself in and in addition to that the so-called Holocaust lie literature is all criminal all illegal most of these prohibitions by the way are simply continuations of policies put in place by the u.s. during its occupation of Germany after the second war when the u.s. itself criminalized pro-nazi speech and shut down newspapers and these same kinds of risks friction exists all across the free world from Germany to Great Britain to Canada countries like Germany saw firsthand the role that anti identity propaganda created in the legal discrimination and dehumanization of Jews and ultimately the Holocaust how many of you have heard of der stürmer it was a German newspaper tabloid style newspaper which would no doubt have been a website today headed by a man named Julius Streicher from 1923 to 1945 strikers mission was to disseminate information that defamed dehumanized and otherwise rendered Jews susceptible to public scorn he was massively massively successful in this the political theorist Isaiah Berlin has noted that the Germans were quote led to believe by those who preached to them by word of mouth or by printed word that there existed people correctly described as subhuman if you believe it because someone you trust tells you it is true then you can arrive at a state of mind where it is quite rational to exterminate Jews close quote the social environment created through words made average Germans who would take part in the relocation and sometimes murder of Jews heroes or good soldiers or just one of the boys what happened to Europe's Jews some might argue is an isolated case but is it the wildly popular Nazi propaganda film the eternal Jew asserted that quote at the beginning of the 20th century the Jew sits at the junction of the world's financial markets although only 1% of the population they terrorized world opinion and world politics close quote Robert night leader of the us-based Family Research Council had this to say at a testimony before Congress quote homosexuals display political control beyond their numbers a tiny fraction of the world's population about one percent homosexuals have one of the largest and fastest-growing political action committees in the country close quote Oklahoma State Representative Sally Kern has recently said that homosexuals go after quote two-year-olds in schools close quote similarly in my home state of North Carolina mary frances forest through the wife of the state senator wrote an op-ed in the right-wing christian Action League website in which she claimed that part of the revolutionary gay agenda as she called it was to rape children and that the average lifespan of homosexual men is 39 years I'm about to be 41 in case anyone wondered striker blamed Jews for World War 4 the world wars both Pat Robertson and the late Jerry Falwell blamed gays for the 9/11 attacks Robertson on his televised show the 700 club routinely blames gay people for all kinds of natural disasters from hurricanes to earthquakes to floods is it any wonder that Benjamin Matthew Williams the 31 year old white supremacist who entered the home of a gay couple in Northern California and shot them to death in their bed defended his actions by asserting quote I am not guilty of murder I am guilty of obeying the laws of my Creator close quote the US Constitution does not require neutrality in matters of equality in fact we are supposedly a constitutionally constitutional system anything but neutral on that subject I think the Constitution's Fourteenth Amendment commitment to equality produces a duty for citizens and government to defend equality and to use their faculties to distinguish between that speech which is in fact designed to degrade dehumanize and rob people of equality and speech that is in favor and furtherance of equality the u.s. like other democratic nations has a duty to confront speech that creates and maintains caste systems among its citizens whether or not those castes are based on race sex or sexual orientation no constitutional right is absolute when in the words of the supreme court a compelling interest warrants it even fundamental rights can be reasonably limited and I believe that equality is that compelling interest and that a thoughtful careful approach to anti identity anti-equality speech is possible and that it is in fact American [Applause] thanks to both of our debaters for joining the debate so clearly and so well a five-minute rebuttal from David French I think you're I appreciate your comments very much and as I told some of the folks here before this debate I'd listened to some of your presentations and admire the eloquence of your presentation of such a wrong opinion but I think your your your examples that you chose of Nazi Germany and the United States are interesting let's consider the impact of a realm of censorship and Nazi Germany in Nazi Germany or in the vimar Republic and many times as it want to be censors would have been the anti-semites and the censorship that would have followed and the suppression of speech that would have followed would not have been of the speech that led to the Holocaust or inspired people to carry out the Holocaust but it would have been even more ruthless as pression of speech that dissented from the Nazis and it was interesting to me that you brought up the example of people like Pat Robertson here in the United States and others who in recent years have engaged in inflammatory rhetoric about gay Americans that has happened at the exact same time where if you look at the actual numbers in the United States of America and you look at where people are on the issues in the United States of America people like Pat Robertson have lost the argument rather resoundingly it turns out that a argument the gays caused hurricanes doesn't really persuade an awful lot of people an awful lot of people look at that and reject that message and in fact that speech has been counterproductive again a time and again and this and I'm talking about I'm someone who is a conservative Christian of a very Orthodox Christian view of sexual morality so there are people are now changing their minds away from moral views that I would prefer and embracing moral views that others would prefer because of free speech because of free speech and my challenge from my side and when I see something like that is to I need to make a better argument I need to prove I need to figure out a better way to persuade people to my point of view but I find it very interesting because if you look at in Germany as history a country with a very different history and a very different culture and the United States with its own distinct history and culture what you have seen time and again in the United States as that free speech brings power to the powerless any regime of censorship gives more power to the powerful and relies on trust that the powerful will interpret then apply their power in a benevolent fashion and I have to confess I'm extremely cynical about the ability of the powerful to do this in an irrational way one reason why is uh I think I think I still hold this title I may have sued more universities than any living lawyer and over free speech issues and among the policies that I've attacked on universities that are motivated by very much by the same impulse which are presenting an impulse to try to enhance the Equality of the campus our policies like this and don't try to think too hard about this one because if you do it might melt your brain or tear a hole in the space-time continuum the logic loop will acts of intolerance will not be tolerated that was an actual policy at the university motivated by many of these same impulses acts of intolerance will not be tolerated so what have we seen what kind of speech have we seen targeted as dehumanizing dehumanizing just as applied in my own in my own life and career a arguments opposing abortion for example in the case of this case in the case where acts of intolerance would not be tolerated the triggering act for it for as censorship was the university saw a poster on a kid's dorm room with Osama bin Laden's face in a cross in the crosshairs and that was said to be dehumanizing to Muslims it actually happened to be a pictorial representation of the national policy of the United States of America Osama bin Laden was quite litter in the crosshairs and it actually struck me as kind of dehumanizing to Muslims or insulting to Muslims to believe that they would feel dehumanized by an attack on Osama bin Laden doesn't that lump them in the wrong exact wrong direction time and time and time again we hear the language dehumanizing dehumanizing dehumanizing as a shortcut designed to try to suppress speech this is actually quite reasonable quite mainstream but people just disagree people just disagree if you ask a hundred people what is a dehumanizing speech you will get a hundred different answers if you ask a hundred people what is hate speech you will get a hundred different answers we should not give any person the power of determining what is dehumanizing speech particularly when that is so often wrapped up in self-interest in the continued attainment and the advancement and furtherance of their power thanks so much and a five minute rebuttal from Shannon Gilbert so the reason we have legislators is so that there aren't a hundred different legal definitions for the same thing under the law we have legislators determine all sorts of meanings with regard to speech including what is sexual harassment what is obscenity and so on I'm afraid that none of the examples offered would in my view constitute anti-equality speech they don't fit the definition that I provided in terms of minority classification and for that reason although they're interesting I don't think that they would in fact be in any way limited by the policy that I suggest I would like to take a few minutes and clear up what I think is a fairly common misunderstanding about a position that advocates some curtailment of anti equality messages and that is that people are too easily offended and should simply grow thicker skins I'm not talking about hurt feelings reducing the very real injuries that result from verbal discrimination campaigns to hurt feelings rather than to recognize them as tangible losses of things like employment opportunities or educational opportunities or in fact physical safety in public places is to misunderstand in fact I would say to profoundly misunderstand how power actually works in a socially unequal society let me give you an example if I were to stand up here and say I think that contrary to all facts there's something inherent about white straight men that makes them molest or otherwise rape children and therefore I don't think that they should be able to be public schoolteachers you might think that this is ridiculous hysterical whatever adjectives you'd like to apply but it probably isn't going to make that much difference in social context for how many straight white men have at their disposal employment opportunities in public grammar schools if however I make that same statement right about homosexual men gay men are inclined to rape children it's a safety issue in social context in which there is a stigma that is live attached to the frequent dissemination of this lie then in fact it probably is going to affect again in context right context matters community matters but it is probably going to affect the number of jobs available to gay men in public education context matters and power in real time matters I'd also say that the anti-semitic speech campaigns that led to the dehumanization and group-based liquidation of Jews in Germany was not about mere neutral opinion and it's logical outcome which of course happened to be mass murder did not amount to mere hurt feelings any more than crystal nacht was about just so much broken glass power and the way it is operating in the material world is what animates a theory of anti equality speech and of course any Theory can be abused if it is taken to represent only counterfactuals we'd have to take a serious and thoughtful approach to what's actually going on in the world around us insofar as the argument is that free speech has led to all these wonderful advances I think particularly with regard to anti-slavery speech that story is a hist Oracle because in fact most anti-slavery speech was suppressed most of these gains took place in spite of not because of malformations of a commitment to free speech and in fact of course the civil rights movement had already accomplished much of its work before the Supreme Court settled on the imminent lawless action standard announced in the Brandenburg decision the final point I'd like to make is that it can happen here it is happening here and if you look at FBI statistics which of course is hardly a bastion of liberalism what you find is that rates of physical violence in the United States against violence against gay people is actually rising not declining as more rights are won in courts and more rhetoric like that of Pat Robertson and others is ramped up to a new decibel level more physical violence is taking place against gay people right now perhaps in the context of the boycott and divestment movement Jewish students are experiencing a spike in physical violence on college campuses across this country as Lois Bondi the antiquarian wrote as Julius Streicher was awaiting his trial of Nuremberg it is necessary to be well-acquainted with the methods by which the Nazis tried to spread their doctrines it cannot happen here is too easy an attitude to take up all of those who wish to see human Liberty preserved will have to be on their guard against any recurrence of the events of the last decade [Applause] many thanks to both of our debaters for such powerful presentations and it's now my great pleasure to pose questions to each of them for about 15 minutes as you write down your questions and we will then continue from there so I'd like to begin with a question about original understanding of the Constitution David as I heard you you were saying that the Supreme Court was right to hold in the Brandenburg case decided in 1969 that speech can only be banned if it's intended to and likely to cause imminent lawless action that's a standard that came from Justice Brandeis as concurrence in the Whitney case in 1927 but the framers of the Constitution might not have accepted that standard they passed the Sedition Act of 1798 they allowed the suppression of all sorts of speech criticizing the government how can an originalist accept your position well any and any originalist begins with the text so you're when I say originalism you're beginning with a implication of textualism and originalism so and if you're interpreting any law you look at the text and in this the text here which Congress shall make no law restricting the freedom of speech is interesting in that it's absolutist on its face combined with and interesting especially compared to other clauses in the First Amendment relative absence of in-depth discussion on the limits and boundaries of that right and so when you begin with broad language very broad language combined with the limited time or limited historical record on what was meant by that language that leads a person who's a textualist slash originalist to focus on the language focus on the language and what I and and what I said in my beginning remarks was that one of the things that you see is the corrupting influence of power even on our founding fathers because it's one thing to be a coalition of folk a coalition of delegates in a constitutional convention when you don't know who's gonna run the place it's another thing entirely to start running the place and so when you start running the place we see this temptation to censor happen again and again and again and it's something that plagued even the founding generation so so I think the fact of the matter that the that the founders were actually so fallible is to impose the Alien and Sedition Acts once some of them gained power and by the way when they did there were other founders who were furious about that furious about that demonstrates this Universal temptation and tendency to try to accumulate power and to try to suppress dissent and one thing that I would note about the yeah Shannon is absolutely right free speech didn't in slavery it took a war ten slavery but I would also note at that time and one of the reasons why Frederick Douglass was so passionate about free speech is our country our country's free Recker our country's legal regime regarding free speech at that time was unrecognizable to what it is today unrecognizable far more far more censorship was permitted in fact some of the arguments put forth in the antebellum South to suppress abolitionist speech we're very much like some of the arguments you hear on college campuses today to suppress speech I that speech emotionally injures me the way abolitionists speak about slave owners emotionally injures me and so that kind of justification was used to justify some of the worst the worst depression in American history so time and again when we shut off here's here's the interesting thing about free speech free speech is a guarantor and a protector of peaceful change because the human desire to change the world for the better does not go away when you're censored it doesn't go away it gets channeled often in destructive ways it gets channeled in revolutionary ways it gets channeled in violent ways it gets channeled and in military ways for example with our own civil war and so one of the great virtues of free speech particularly in a culture as diverse as ours far more diverse at its founding than any of the more monocultural culturally homogenous European nations a nation as diverse as ours as pluralistic as ours we have to have that safety valve because that impulse to change the world and to change the country won't go away if you can't speak but if you can't speak you'll channel it in less productive ways great a Shannon a question about originalism for you this time about the original understanding of the 14th amendment ratified in 1868 unlike the first amendment ratified in 1791 as David mentioned the people who supported the 14th amendment in particular John Bingham really cared about free speech they were worried about racist southerners preventing abolitionist speech from being mailed through the mails and they invoked framers like Jefferson on behalf of the complete freedom of conscience and essentially endorsed the idea that speech could only be banned if it was intended to unlikely to cause him and in violence so if the framers of the 14th amendment intended to embrace the standard that David is arguing for why do you think that the 14th amendment should be construed in a different way well I mean I think the question assumes that I think originalism is the appropriate interpretive commitment and I don't I mean I'm not really sure why we're some people anyway aren't so terribly concerned about what people long-dead thought about any particular constitutional provision when the reality is they didn't even agree among themselves what the appropriate meaning to any given provision might be I'm concerned with the Constitution that is relevant to an evolving Society and evolving commitments including the commitment to equality and I don't think that you can say that a class of citizens so defined by their group identification which is by the way often not an identification they choose can actually be said to have equal protection of the laws when propaganda campaigns against them which take away equal opportunity in a whole host of ways remain unfettered and unregulated so I mean if equal protection of the laws means anything it has to mean at least that whether or not that's somehow congruent with an original understanding is not particularly important to me David in endorsing the imminent lawless action standard Justice Brandeis had an inspiring faith in the ability of public reason to triumph and he said the best response to evil counsels as good ones because as long as there's time enough for deliberation then truth will prevail in an age of the Internet of fake news and 24/7 cable was Brandeis too optimistic about the power of counter speech to promote thoughtful deliberation and if so should the imminent lawless action stand be reconsidered there's a shorter way to ask that question can the First Amendment survive Twitter I don't know so here here's the here's the and this is that there are two issues here I'm going to back up a little bit there's the legal protection of free speech which is mainly what we've been talking about which is very very important and that's what the First Amendment deals with what is the role of government and regulating speech I would say more important if you want to protect free speech is the culture of free speech so you can have a government that says I'm not going to censor you but if you have a culture that is centered around public shaming name-calling etc then you're gonna also often find people who have a freedom to speak in theory but won't speak because the social costs are so high so when I write about free speech I'll write about the culture of free speech as often as I write almost as often as I read about the legal structure of free speech and the issue you have with our current social media environment is often one of algorithms of matching of the ability of our technology to match people of like mind together so that there isn't the space that Brandeis talks about at all instead what locks in is something called the law of group polarization and this guys is a super important topic to understand our culture and the law of group polarization is this when people have like mine gather whether it's in a room or in online the common expression of their shared beliefs tends to become more extreme and that's something that we are seeing all the time like-minded communities gather they convince each other of the rightness of their position and the wrongness of the of the opposing side and the common expression grows ever more extreme and it's a bipartisan issue right now it's an absolute bipartisan issue but it's primarily a cultural issue there is no law that's gonna swoop in and effectively tell Facebook and Twitter how to to remake their algorithms and to rework their customer base to make people more civil and more willing to engage it's a real cultural issue I don't see that the law is gonna be able to help us there Shannon I'd like to understand the scope of your proposed alternative to the imminent lawless action standard which I took as forbidding speech that's false and misleading information about historically marginalized groups that is designed to degrade and robbed them of equality was Brandenburg wrong that was a case where a guy stands up at a Ku Klux Klan rally and says unless there is something done about the race situation in this country white people might have to take revengeance the Supreme Court held that that speech was protected because it wasn't intended to unlikely to cause imminent lawless action do you think that case was wrong and should be overturned and then do you believe that Facebook and Google are correct to ban speech that is designed to degrade people on the basis of race religion and gender and should the first amendment be construed to embrace the Facebook and Google standards okay where there's a lot in that question there's a lot better you than me so first I would say Brandenburg course Brandenburg you know the speaker said a lot more than than just that and in that case I mean what bothers me about the Brandenburg decision is it's a curious country in which the law is permitted to respond even encouraged to respond to an exhortation that says go kill that now but is not permitted to respond in any enlightened or useful way to pervasive insidious propaganda campaigns accusing black Americans of every kind of depravity and inferiority including lower intellects laziness sexual asipi nacelles hideousness criminality of all kinds that then creates for that class of people so targeted an environment in which based on the color of their skin they are denied opportunities in employment in education and indeed one must say in physical safety and by the way from the state itself right in in the in the form of police brutality and other forms of institutionalized violence based on stereotypes so it just doesn't seem to me to make any sense to say you have to directly incite someone to kill a person before we can do anything to respond to anti-equality propaganda campaigns it's it's illogical it's utterly nonsensical and in fact what it does is to entrench power right it entrenches power because it says to most marginalize people unless your attackers stray over this very singular and call for your murder or some form of violence against you which by the way doesn't only have to intend to produce that and violet violence but has to be likely to produce it in the mind of some court right then you're on your own and in fact the ability of people to abuse you through these kinds of campaigns is actually going to be called their fundamental constitutional right so that's Brandenburg with regard to Facebook and Twitter and other things I mean I think the reality is there can be a law that swoops in and deals with this sort so these sorts of situations if that law is one as I have outlined that targets speech campaigns against historically marginalized people it's really not that difficult to see unless one doesn't want to see I mean recently I went on a vacation in which I went to the beach and I posted some photographs on Facebook of some friends of mine and I and you know swimsuits and then I got a notification from Facebook that said your photograph has been reported and removed for being pornographic content and at first I was flattered and then I said you know clearly there is someone out there right whose job it is to decide that this you know this photograph of a shirtless man is incompatible with so if Facebook can target those sorts of postings in in ways I think what your rather ridiculous and silly but I don't feel particularly oppressed by them I don't see why Facebook can't also respond in useful ways as guided by legislatures to speech campaigns that do the work of disenfranchising their targets particularly in an era in which the echo-chamber that his social media makes what might otherwise just seem surd catch like wildfire among people who are already disposed to believe it David Shannon notes sexual harassment law in the workplace does forbid speech that is demeans women in a severe and pervasive way and some critics challenge sexual harassment law when it was first created as a violation of the First Amendment it clearly doesn't comport with the Brandenburg standard but the Supreme Court rebuffed those claims so why isn't chanting correct that if it's okay to restrict the brandenburg standard in the workplace it's not also okay to restrict it on college campuses given the unique context of college campuses well the difference that the problem I have a Shannon's position compared to sexual harassment law for example is that Shannon's position it would be explicitly explicitly viewpoint discriminatory as opposed to sexual harassment law which is at its core viewpoint Knewton viewpoint neutral what what essentially is happening here is the sexual sexual harassment law is not all that different from any other law that we have where speech is as Shannon said connected to some something in the physical world that directly impacts your ability so in this case to do your job so what's very important about sexual harassment law it's not just severe or pervasive it's so severe or pervasive that it becomes essentially like a term or condition of your employment and that's a very important distinction so those same words that you might uh Terr repeatedly in an office in an office are not going to be unlawful if you utter them outside the office but it's that's it's the time it's the place it's the manner and time place and manner type restrictions have long been recognized in in constitutional law the problem I have and what's very different about Shannon's position is he's talking about something that's directly targeting particular viewpoints particular ideas and so this is it is not the time place and manner it's the idea itself that is going to be ruled out of bounds and and you know Shannon said well you know we have legislatures to make these hard decisions but one thing that I would notice we've kind of had Lee little laboratories all over the country that have shared a lot of Shannon's views about speech and they've been called colleges and universities and they're run by people very high IQ people who deal with far more culturally homogenous communities tend to be upper-middle class tend to be generally in the same ideology or very similar ideology compared to the larger culture and they've been really wrestling for years in trying to restrict specifically speech that dehumanizes restrict speech that anti-equality speech and it has been an absolute disaster it has been an absolute disaster I wouldn't even say there's a slippery slope there's no slope it immediately starts to brew when you when you attempt to do what Genesis is suggesting you immediately begin to sweep in entire categories of speech and I know Shannon would say no not under my regime not under my regime but an awful lot of really really smart people have been trying to accomplish exactly what Shannon is trying to accomplish on these college campuses and I ask you when you look at our college campuses and you look at the suppressed rage that exists the I mean we're reaching a point on some campuses where progressive is turning on progressive to such an extent that professors are suffering PTSD where they're going off campus because they're not physically safe to be on campus because they objected to a particular form of progressive protest and I'm not talking you know rabid right-wingers like me I'm talking Bernie bros going off campus to conduct their classes because it's not safe for them and so you know when I when I when I have debates like this and I have discussions like this I'm constantly thinking we've tried this this has been tried there's an ongoing laboratory of democracy for about thirty years now and it's the various efforts of campus administrators to satisfy and to deal with the very concerns that Shannon very eloquently raised and what has resulted from that is it illustrates many of the problems that I've articulated it gives more power to the powerful it doesn't actually suppress views it creates increasing amounts of bitterness it creates increasing amounts of division it's not susceptible to definition to to any sort of not just easy definition but any sort of consistent definition at all and it has resulted in environments now that in many ways when you look at what the academies become especially some of our academicians their national laughingstocks and that's that's the road that's what we see happens it's right in front of us this question is for professor Gilreath the 14th amendment says states must not denied any person of the laws how can you justify restricting the first amendment in a dubious effort to mandate equality and economic or social status well because I don't think it can be said that a group of people who is subject to pervasive speech campaigns that are designed to marginalize them to politically disenfranchised them to cast them as somehow socially worthless unemployable uneducated 'fl etc can be said to have equal protection of the laws in any meaningful sense you see I think neutrality is simply a mask for powerful people's opinions becoming law i I don't think that people in groups targeted as the way I have described can actually exercise any constitutional right so long as they are considered sub citizens subhuman etc so I think in some ways what the question is asking me is alien to the frame so far as I see it right I don't think equality can exist in any real sense without some reasonable 14th amendment based approach to interpreting the First Amendment and you know I think that that the reality is US law has recognized that in some contexts sexual harassment being one of those contents of context which I would say is a sexual harassment is by a definition not viewpoint neutral but what we've seen the law do is to say listen regardless of the viewpoint communicated and there is a viewpoint communicated right when you say have sex with me or you're fired right you are communicating a viewpoint about the target of that speech what she's for which is essentially sexual availability there's a viewpoint there as as there are in in most verbal expressions what we're concerned with is the action the discrimination that is inseparable from that language in other words I'm talking about speech that cannot say what it says without also doing what it says in real time and I think that's the distinction the sort of college campus examples and other things most of the time where they go off the rails is that they are concentrating on hurt feelings or some emotional injury and that is by far and away outside the bounds of the theory that I have offered offered today we have several specific examples that our audience wants both speakers to comment on and David first you are situations like burning the Koran were kneeling at an NFL football game when so many people are offended protected by the First Amendment or not oh man I got a whole album side on that um you know let's deal with the NFL first because that's on everybody's minds in 1942 January the Wisconsin I mean that West Virginia School Board passed a resolution that required students to stand and offer a salute and say applied the Pledge of Allegiance or a Pledge of Allegiance now let's remember what's happening in January of 1942 in January 1942 we are not adjusting the world war in World War two we were losing we were losing this resolution was passed right before the Bataan campaign started in the Philippines and for those of you don't study World War two history arguably the Bataan campaign was the worst military loss in the history of the United States the the scale of the devastation and the scale of the human lives lost is just beyond imagining we can't even imagine it and in this world where the US military seems so powerful it wasn't just that the United States existence was at stake Western civilization's existence was at stake so if there is ever a time to demand that Americans stand and recite a Pledge of Allegiance especially when those kids were might be in the next year or so enlisting or their fathers were enlisting at that moment that was it national unity was absolutely value of it was absolutely critical to the existence of our nation and the Supreme Court in 1943 this 1943 the war wasn't won in 1943 guys it was still hanging in the balance said if there is any fixed star in our constitutional constellation it is that no official higher petty can prescribe what is orthodox in law and matters of law politics nationalism religion it's one of the most powerful constitutional statements given the context that our nation that our Supreme Court has ever delivered and I would say if it doesn't require students if we cannot require students to stand in the middle of our nation's one of our nation's two greatest Wars one of the nation wars where the nation in existence then the First Amendment's broad enough to encompass an NFL player taking a knee in a time of relative peace and we shouldn't be all that concerned about it and in fact we should look at that and say you know what I want people to stand for the flag because they love this country not because they feel like they have to or they'll be fired and I have found it and this is sort of my something that I've been saying to a lot of conservative audiences let's focus on asking people to stand out of love and teaching them to love this country rather than forcing them to stand because they're afraid because that I believe is antithetical to the culture of free speech and so when we say to a kneeling player I disagree with you but I understand why you Neal would like to talk to you about why you Neal you know what you're doing you're advancing a culture of free speech and you're standing in the shoes of one of the greatest Supreme Court decisions in the history of the United States so that's how I feel about the NFL what was the other one burning crayons look you can burn anything you want to burn burn in it you can burn it I disagree the burning an American flag I disagree with burning a Bible I disagree with burning a Korean but context matters if you burn a Koran right in front of a mosque there's going to be some questions about are you creating an environment we're trying to incite imminent lawless action but I don't think that any object is sacred I'll give you a real-life case I was involved in the litigation at San Francisco State University where the College Republicans stomped on the flag of Hamas a terrorist organization they were brought up on charges by the University acting under policies where they're trying to ensure equality for desecrating the name of Allah this is in the United States of America at a public university fortunately the university changed course after litigation was filed their speech code was struck down but you know I think that you raise an interesting and an important an example because where I think I disagree with Shannon is if I see as a Christian someone burning a Bible I don't look at that and feel helpless I understand that I have power in that in that moment and I have the power of my speech and I have the power to answer bad speech with better speech and then one of the things that is consistent and I'm just gonna keep emphasizing this until I'm blue in the face is that in the environment where American free speech jurisprudence and the American culture of free speech has been opened we have seen more and better social change on front after front after front than we did before our free speech environment was so open and why is that it's because people were able to answer bad speech with better speech you're never powerless you're never powerless you don't ever have to just look to the state and say save me and help me from this speech you can answer it and when you answer it and you answer it with a better argument you not only empower yourself you change a nation and that's an extraordinary act thanks so much Shannon same excellent examples from our audience to you does the First Amendment protect and that NFL player taking the knee during the national anthem or bring the Quran so I think the First Amendment does I mean we are these examples aren't of course actually related to the question of anti-equality speech but as a general matter yes I think the First Amendment does protect somebody kneeling during the national anthem to protest inequality and police brutality and I think it would also protect burning the Koran or any other book for that matter I mean frankly I think books should not be burned they should stand for the you know as evidence of the harm that they actually do produce in the world if in fact they do produce harm in the world so I don't have any problem with the First Amendment protecting those things as I think they should I think to some degree sort of suppress in a pious ly even-handed discussion about this is the idea that there's no constitutional basis for distinguishing between speech that advocates equality like protests over police brutality and speech that advocates inequality in fact I think the Fourteenth Amendment is the basis for making that distinction legislatively and I also think it's a terrible misconception although an awfully common and convenient argument to say that the answer to every situation is more speech yes in a country in which people who identify religiously overwhelmingly identify as Christian someone witnessing the Bible being burned would in fact be in a position of power that is unquestionable but I don't think you know when black students are confronted with posters that say blacks go back to Africa I think it's a little disingenuous to consider that as an invitation to some sort of dialogue about race relations it's no more an invitation to dialogue about race relations than it is an invitation to some exotic vacation it's simply not true in social context and so again what I would say is for a theory like mine to be operable in a reasonable way of course we have to make distinctions that turn on context on on a community context and how power is actually operating in the real world not simply abstractly in our head great one last question for each debater and then closing our David could you draw a tangible line between anti-equality speech and government tyranny and oppression a line between anti-equality speech and government government tyranny and oppression I can see government oppression in the name of suppressing anti-equality speech I can see that happening very very clearly I think you see that happen often on vit quite often on college campuses that's where you'll see those in positions of power use the fig leaf of anti equality types of suppressing anti quality speech to terminate debate to deny economic opportunities for example in faculty positions to deny educational opportunities that happens distressingly often on college campuses but I don't honestly know what anti-equality speech is you know I have gotten some of the examples you know that are that are on the extreme edge like a Klan flyer but you know I that those kinds of those kinds of events have occurred on college campuses and I remember when I was president of fire I got a call from a Provost at a major state university in the south and he said we just got some Klan fliers on campus we're wanting to shut down our free speech zone to prevent it because he knew he couldn't just explicitly target the Klan legally and allow everyone else to speak and I asked him a question I said what's happening on your college campus he said well obviously a lot of students are upset about it and I said and he said well we don't want and I said and I asked him this I said are you afraid you can't rebut the Klan and so of course not of course not I see he said we've got a Take Back the Night style rally where we're gonna have probably a thousand students expressing love and support for members of our community we're have a teach-in about the history of the Klan and its terrorist orientation and then I said what about the flyer itself what is the flyer itself say well it's a it's a typo riddled piece of nonsense I said so you're wanting to implement a regime of censorship when the when the reaction to this speech has been an outpouring of love for African American students a moment of teaching where people now know more about this domestic terrorist organization than they knew before so they know why they hate the Klan other than being told hey these are bad people and the Klan itself's expression is so subtle literate that's not persuading anybody and you're wanting to receive it sounds to me like what you have here is an example where free speech has resulted in a triumph and and where free speech has resulted in a win for equality whereas you wouldn't have had that some sent that similar outcome had you simply shut down your free speech zone and and I think that you know a time and again we look at an event and we say and I and and I I I know you're not saying that we're dealing with hurt feelings and we're not dealing with hurt feelings but I've never seen a legal regime enacted by any well-meaning institution that's seeking to regulate rules of speech to accomplish equality that doesn't define offensive speech or unlawful speech by this subjective listener response to it which then places my free speech rights your free speech rights often directly in the hands of the most sensitive listener and that is not free speech folks that's not free speech it's an exercise of power over a by a governmental or quasi governmental or powerful private entity over a less powerful person that's what it is that's what every active censorship is and so what I have seen is the quote equality imperative being used to justify the exercise of power by powerful people in one context over less powerful people in that same context that's how it works because you can't have the less powerful sensor the more powerful not possible it's always the more powerful censoring the less powerful that's how it works and however you want to cast the rhetoric in the name of the dispossessed or the marginalized if you're censoring you've got the power you're not dispossessed you're not marginalized in that context you have the power and that's the problem I have and what we see is that power being exercised time and time again in ways that are arbitrary targeted and many times vicious and free speech is the best answer for that last last question to Shannon do you think there's any danger of government oppression if anti-equality speech is restricted any danger of government oppression did you say I mean I'm assuming that question means oppression by the government of citizens I mean I think that there will be people namely people who are now less able to propagate racist sexist and homophobic propaganda campaigns who will feel that they are being oppressed by a law that takes equality seriously I think that's probably a reality and I also think that there will be missteps I think that there will be sensitive questions that arise in the same way of course that there are instances with sexual harassment law or with title 9 on college campuses that sometimes go awry do I think that we are in a better world because title 7 and title 9 of the Civil Rights Act exist yes do I think that the ability of people to be overtly racist and sexist in public ways has because the cultural ethic has changed over the decades since the Civil Rights Act was enacted yes so while I think that there may be situational shall we say instances in which the law is miss applied I think the risk is worth it in the context of equality I also think that the empirical evidence is there for anyone who wants to engage with it that speech anti what I have determined to be anti equality speech is in fact directly related to levels of not only tangible economic loss for the targeted groups but for levels of physical violence even murder against those same groups those statistics are there they are available so I'll I I do believe that there is something a bit backward in an argument that says the status quo does not represent the interest of the powerful of course a status quo becomes a status quo because powerful people support it I think right if if what I have on my side of this argument is empirical evidence of economic loss physical loss and worse bodies piling up and what's on the other side of the argument is a commit a worry about theoretical oppression of an abstract commitment to an abstraction that we call free speech shouldn't the burden be on the other side to convince everyone that what I say won't work can't work rather than the burden be on me to prove that in every instance it will work perfectly I think in fact we're risking far more by not trying wonderful before we come to closing statements please join me in thanking our debaters [Applause] it's now time for closing arguments in this superb debate and the first one for three minutes is to David French so first I would say you don't actually have empirical evidence that any given kind of speech adds up to bodies in the streets you just don't have that that doesn't exist what exists are you know various studies about rates of hate crimes relating to various world events rates of hate crimes that a banned flow for millions of different cultural factors when we can tie a hate crime directly to speech we've often can tie it in a sense of that Brandenburg relates to it there was speech that motivated imminent lawless action and the question that I have is as a speech restriction going to be more effective at preventing crimes than felony statutes that can cost a person their life if they commit murder their liberty if they commit a robbery all of their worldly goods if they violate the civil rights of a person under civil rights statute so then we're gonna fix this by suppressing Liberty by the powerful against people have less powerful no I don't think so there's not empirical evidence that that's the case but what we do know and what we do understand and what people who have been part of movements throughout American history that have achieved social change for the good and for the betterment of our society of understood as they could not do it without the right of free speech and what we do know and what we do understand throughout American history is that when that right of free speech has been denied when the ability to engage in dialogue and discourse has been suppressed the impulse for social change in this country doesn't go away it just manifests its it manifests itself in more violent ways it manifests itself in very destructive ways the founders were flawed but wise men they formed a nation made up of disparate religions and disparate cultures and it's fashionable to say they're just a bunch of white mainly Protestants but the differences that existed at that time and when they created this country where differences that had torn Europe to shreds in wars that with death tolls that away you didn't see again until World War one that's how profound those differences were and they created this country and they realized that they needed to create a safety valve a safety valve that not only protected America from future generations but a safety valve that it turns out should have been used to protect America from some of their own worst impulses and that's the First Amendment and one of the great advances of American history of American society and of American culture was the Supreme Court beginning in the 20th century to look at the text of that amendment look at the text of the 14th amendment which guarantees equal protection of the laws there's actual words on that page equal protection of the laws it's not a social justice super clause that says equality it actually has words equal protection of the laws and actual words regarding Congress's inability to restrict the freedom of his speech and begin to put those things together in a way that empowered every person in this room and continues to empower every person in this room and America will never be perfect it will never be perfect however one thing we know and one thing that we understand from history and from the knowledge of our own culture is if in the name of trying to make America perfect we make it less free we will break this place apart we will fracture this country and we will shut off the most powerful engines for social change that have ever been created as Frederick Douglass said the First Amendment and free speech is an engine of moral renovation and our moral renovations are not yet complete and they'll never be complete that's why we always must protect the right of free speech thank you so much the last closing argument to shun GUI so equal protection of the laws um let me say this liable which is the intentional dissemination of false information in order to injure the reputation of an individual is prescribed in every US jurisdiction as a consequence reputational harm to those who are allowed to be individuals which is to say namely straight white men in this society is prohibited their reputations are secured and safeguarded by the law and through the law conversely people who are defined and falsely maligned through their membership in groups often when the group designation is an even one they chose like race for example which is to say anyone who isn't a straight white man have no legal recourse in fact they are told that the ability to define and therefore defame through that definition and thereby to injure them is someone else's protected constitutional right how exactly is there equal protection of the laws in this this is a bizarre system that it avoids the inescapable reality that groups are composed of individuals individuals who suffer the effects and tangible losses of group based libel campaigns as individuals it is a curious country I think in which the law can respond to the exhortation kill that now but is not allowed to respond to the verb discrimination campaigns that create the environment in which people would be disposed to kill that now because somebody tells them to it is a peculiarly American delusion to think you can split off from the words that constitute the social environment the harm that flows through that social environment I would also just remind everyone who is apparently with mr. French thinking that Germany and England and Canada and others are totalitarian regimes these protections do in fact work in environments in which censoring or silencing some forms of particularly egregious anti-equality speech have not in fact ended free speech I will say that the slippery slope argument is a common one it has been brought up here tonight in my view it is a convenient doctrinal referent no less conservative than it is liberal for doing nothing I sometimes wonder considering the idea that silencing anti-equality speech is going to ineluctably lead to the silencing of all other kinds of speech since that is sort of rather obviously juvenile what could the slippery slope that people fear most really be maybe the slide they fear most is a slide to actual equality a slide to a legal regime in which bigots are actually held accountable for the work that their propaganda campaigns do in the real world equality it seems to me is the central proposition of the United States Constitution today and silencing speech regulating speech that impairs the Equality of all citizens does not require a dramatic rethinking of our constitutional system in fact the US Supreme Court has in every other area recognized that a compelling interest can constitute government action that reasonably restricts fundamental constitutional rights the only thing that I'm submitting to you tonight is that equality is that compelling interest and in my view unless the 14th and omit and first amendments are interpreted together to produce a just result then there will never be equality in this country thank you [Applause] [Music] ladies and get on before we vote once again please join me in thanking our debaters [Applause] all right now for the extraordinarily important final vote you have heard the debates you have listened closely you've separated your political from your constitutional views in light of what you've heard I want you once again to vote on the motion do you agree with the resolution the First Amendment protects hate speech if you vote yes hit yes and hit Send if you vote no hit no and hit Send once you hit your response your answer will be displayed back to you which means your response has been recorded and after you have cast that path-breaking vote we have one final question which will appear on your device yes or no I now better understand the opposing view and once again highlight your answer hit Send and your answer will be displayed back which means it has been recorded excellent okay now as the crack constitutional prep team is tallying the responses I need to talk with you about the importance of these debates than the urgency of having your help here in Dallas and around the country we are going to come back to Dallas thanks to Harlan we're going to do a series of these constitutional debates here at old parkland and one of the purposes of these debates is to educate this extraordinary group that's heard come out to hear them but we need to educate the whole country we need to bring these arguments which are the best arguments that exist for and against the motion to learners of all ages across America and we need to do that by recording and distributing this content online we have at the Constitution Center an extraordinary platform co-sponsored by the Federalist Society and the American Constitution Society it's called the interactive Constitution I've told you about this before I want you to download it if you haven't already not now because you must listen to every word I'm saying but after the debate it has gotten 15 million hits since it launched two years ago Wow is right there is a hunger in this country to hear the best liberal and conservative scholars nominated by the Federalist Society and the American Constitution Society writing about every Clause of the Constitution describing what they agree about and what they disagree about so you can click on the first amendment and see Jeffrey stone and Eugene Bullock nominated by both of your great societies with a thousand words about what they agree the first of their own means and then separate statements of disagreement it's an extraordinary tool there are 80 clauses of the Constitution I teach constitutional law I don't know about most of them I learned from them every day and I want you to download this tool to learn about the Constitution and then to think with us at the Constitution Center about how to create lessons plans that will bring this stuff into schools we have a weekly podcast We the People where every week I get to call up the leading liberal and conservative scholars in the country to discuss the constitutional issues of the week we just talked about network neutrality and about the masterpiece cake case and you got to download those podcasts and listen to them and then we've got to put all this material online and bring it across America so that I can stop vamping and give you the results of the debate thank you so much Kate it is III before I tell you the results it's so meaningful to be here in this temple of Reason I mean Harlan has created a reconstruction of reasoned debate at its core and we've just been discussing the most contentious issue in America there are students who are supporting violence on both sides of this debate we saw what happened in Charlottesville on both sides and here we have a temple of reason where both sides are talking about the Constitution and giving you the people a chance to make up your own minds so now I am able to share with you the thrilling results of this debate before the debate 90% of you voted for the motion that is you agreed that the First Amendment protects hate speech and 10% voted against the motion after the debate I'm thrilled to report that 85% of you voted for the motion and 15% of you voted against the motion which means since the winner is the side that changes the most minds shannon has had a 5% chuck change please join me in congratulating Shannon Jory and there was another crucial question and that was whose minds were open 85% of you said yes you now better understand the opposing view and only 15 percent said no oddly that exactly tracks the final numbers for the last question but I'm not gonna delve into that statistics ladies and gentlemen I'm gonna end just cuz I have a party trick I wrote a book about Louie Brandeis and he wrote the beautiful decision about free speech that we'd been debating so now that the debates are in I'm just gonna send you into the night by recalling brand Isis inspiring words in the Whitney case those who won our Revolution believed that the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary they valued Liberty both as an end and as a means they believed Liberty to be the secret of happiness and courage to be the secret of Liberty they believed the freedom to think as you will and to speak as you think our means indispensable to the discovery and spread of political truth that without free speech and assembly discussion would be futile that with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine that the greatest threat to freedom is an inert people that public discussion is a political duty and that this should be a fundamental principle of the American government ladies and gentlemen thank you so much for being here tonight [Applause]

Channel: National Constitution Center

Views: 17,418

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Id: gBSoq1WlA7A

Length: 101min 28sec (6088 seconds)

Published: Wed Feb 14 2018