Free Speech: What Everyone Needs to Know

for Liv for [Music] you [Music] all [Music] for [Music] [Music] [Music] [Music] ready all right well thank you all so much for joining us today here at the KO Institute and those of you joining us online I'm Alan K I'm I am the director of sphere education initiatives here at the KO Institute we work with uh Educators across the country on how free speech and civil discourse can help overcome polarization we're thrilled today to be joined by one of my very favorite people and nen straon uh author of the new book free speech what everyone needs to know uh for those of you who are not already familiar with nen's impressive accomplishments among her wide variety of lists of things that she's done in her stored career is uh to be the past National president of the American civil liberties Union she currently serves as a professor Emira at the New York University law school as well as senior fellow at the foundation for individual rights and education among many many other things very excited to be here today for this conversation and look forward to hearing from you all uh what we wanted to do with the conversation today is talk a little bit about Free Speech broadly uh what it is how it's misunderstood some of the unique and interesting challenges to it but also talk about some contemporary issues both raised in the book and uh unfortunately in society over the recent months uh so naen to get us started I I would love to talk a little bit about something you touch on both toward the beginning and the end of the book which is this idea of free speech as something more uh older deeper perhaps than uh merely the protections listed in the First Amendment so it is that and a lot of the book covers the First Amendment protections of free speech in particular I want I wonder if you might talk a little bit about where does this idea come from what does it mean to broadly support something like free speech well thank you so much Alan thanks to you and the KO Institute for hosting me yet again for a book Forum I've been honored to have the opportunity to talk to your important audience about all of my books um so freedom of speech is certainly protected by the First Amendment to some extent but it is independent dependent of and in many ways more all-encompassing than First Amendment protections uh to let me put it this way strong legal protection of free speech under the first amendment is necessary but not sufficient for us to truly exercise and enjoy meaningful Free Speech why is that because the first amendment for all of the broad scope that it has received in recent history although for most of its history it was pretty much of a dead letter uh Free Speech only protects us against government violations of our speech rights and therefore if we are concerned about truly having a thriving Free Speech culture we need to go beyond First Amendment protections and here I know Libertarians might well disagree with civil Libertarians on this particular issue uh but for example I as a civil libertarian and Free Speech Advocate would urge private universities to voluntarily Protect free speech rights of students and faculty members to the same degree that public universities are required to do so under the First Amendment even though there's no legal obligation for private sector universities to do that uh another really important example is conjured up by that much contested but I think important term cancel culture everybody uses it somewhat differently but the essence of the concern is this that even though individuals and groups and companies and employers have rights including Free Speech rights to strongly denounce and criticize and advocate for punishment against and to implement punishment against individuals for expressing controversial viewpoints um if it goes too far I put that in quotes because I recognize that's a matter of subjective judgment but an unduly retributive harsh punishment and fear of unduly retributive harsh punishment from private sector actors leads people to engage in undo self-censorship and that's what we call cancel culture when surveys show that people are afraid to express their viewpoints on sensitive controversial topics not because they're afraid the government will punish them that would violate the First Amendment but because they're afraid of Retribution from the private sector so that is another respect in which First Amendment protections are necessary but not sufficient to have flourishing Free Speech exercise I think that's something that you and I have talked about previously is critically important that notion of a a culture of speech that the First Amendment protections live within that is they're effective to the extent that people want there to be speech want there to be engagement and times like we've seen recently really push hard against uh a a broader sense of speech and engagement uh before we we jump to the book where I want to go next I just one additional question to build off of that what what do you see so some of that being cancel culture some of that being these other pieces what's sort of the biggest threat facing that kind of culture of speech uh in America today the you know when you an you end your question with the word today alen which is really important but I will tell you in a very long career we just uh discussed the fact that when I had the opportunity to have an interview about my very first book here at Ko Allen was in seventh grade um but you know going way back then and even earlier my answer has always been the same and it's not because I'm you know just roly repeating the same but on on reflection I continue to be convinced that the single great greatest threat to freedom of speech is lack of public knowledge lack of public understanding understanding the fundamental principles of free speech the history that gave rise to it the experience of censorship the experience of censorship even for positive causes right to counter hatred to counter dis information to promote National Security these are very important goals but once one understands not only that the history and current reality of implementing those sensorial restrictions is as bad for the uh counterveiling goals as it is for free speech um once one understands that robust free speech for all of its limitations is the least Danger dangerous approach for advancing not only individual liberty but also uh societally important goals um then support for free speech really increases so I've always worn two hats throughout my double career as a law professor and as a civil liberties Advocate as a law professor I obviously don't believe in indoctrination I believe in information and stimulating my students critical thoughts as an advocate I advocate a certain strong interpretation of First Amendment Norms but I found that there is an overlap the more information and understanding people have about Free Speech the more supportive they become I think that's fantastic so let let's turn to the book so for those of you who do not have have a copy we have links on our website but also available for purchase here at the KO Institute Free Speech what everyone needs to know is in the Oxford University press series The what everyone needs to know series one of the things that I think is particularly beautiful about it is it's a sort of Q&A format style of engaging with the idea uh posing questions answering them in easily digestible chunks and in in sections that are really easy to work with for those of you teachers joining us both in person and online I strongly recommend the text as a great resource for your classroom it'll be very accessible to your students but also for those of us who are not quite as many years experienced and free speeches you have it's still something where you learn from it throughout so I wanted to go through a few of the uh you have a a section that covers the 12 most common most challenging questions and arguments against Free Speech hit a handful of those because I think it highlights a number of the important points you've brought up and can be really informative to think about this issue broadly uh the first one I want to begin with is is where you begin uh isn't the first amendment too rigid or too absolute in what it does that is ought it not have more exceptions given what we've seen oh thank you so much for for starting with that that question Alan and for giving me the opportunity to say that consistent with my support for free speech I believe along with John Stewart Mill that absolutely every proposition especially the ones that we have held most dear is subject to question is subject to contestation is subject to debate and so I especially welcome the questioning format because I pose those questions to myself every day and I welcome audience questions I welcome the opportunity to give my best answers to the toughest questions that I receive but as I also say at the beginning of the book and this is one of my mantras for my students as well I would like people who engage with the book to do what I ask my students to do which is not only give your best answer to every question but give your best question in response to every answer uh and I I so I started with what I consider to be the most challenging questions and and the most common ones and this is definitely the most common one most people who are free speech detractors have a false assumption that freedom of speech at least as it is now protected under United States Supreme Court Juris Prudence is rigidly absolute that those of us who defend Free Speech we're often referred to as absolutists uh we're often told that we will acknowledge no exceptions whatsoever uh to First Amendment Free Speech protection and indeed that that we don't even recognize that speech causes great harm or can cause great harm all of those generalizations are completely incorrect uh In fairness I have to say uh the term censor is used in an equally unfair and inaccurate binary form I have debated uh everybody who has advocated uh strong restrictions on speech that I have considered to be unjustified and I must confess uh that I have sometimes referred to them as advocating censorship so one of the lessons I've learned is that that is unfair they are no more absolutely defending censorship or opposing Free Speech then I am doing the opposite I think all of us are on a Continuum recognizing that some speech should be subject to restrictions but we just disagree about which speech and even more importantly under what circumstances what should government should government have the burden of you know should the speech be presumptively protected or presumptively subject to restriction and what should the government if it does have the burden of proof uh which uh is the law now um what should the government have to show and uh so in a nutshell and the and one of the Beauties to me of of writing this book Allan was how much I learned in terms of distilling a very very complex body of free speech law that has developed for more than a hundred years with all kinds of byways and exceptions and caveats and uh I was really able to distill it into quite simple but not oversimplified principles and the more you look at those principles the more you realize they make a great deal of common sense um I concluded that first amendment law now appropriately empowers government to restrict the speech that is the most dangerous but it also bars the government from engaging in restrictions that engaging in restrictions that are the most dangerous right so the most dangerous speech can be restricted but the most dangerous restrictions may not be imposed and let me just flesh out each of those Concepts a little bit speech that is the most dangerous is speech that has a tight and direct immediate connection to specific serious harm the term that is often used to describe that concept is the emergency principle the speech directly poses an emergency by either immediately merely by being spoken causing great demonstrable harm uh or by imminently threatening such harm and the Supreme Court has recognized a number of subcategories of speech that satisfy that emergency standard many of them will be familiar to you intentional incitement of imminent violent or Lawless conduct that is likely to happen in imely targeted bullying or harassment a genuine threat which intends to instill an immediate reasonable fear on the part of the person to whom it is directed that they will be subject to attack now let me pull back to the counter principle that is the speech restriction that is the most dangerous and therefore uh is prohibited censorship under the First Amendment and that is when the reason for restricting the speech is not because it poses an emergency directly and immediately but rather because of disagree with or disapproval of its idea of its message of its Viewpoint of its content or because it has an indirect speculative connection to potential harm in other words both cases short of that tight and direct connection to harm this is um this more loose standard of restriction is what we had through most of our history until the 1960s it was often referred to as the bad tendency test that government May restrict speech any time it has a tendency to perhaps potentially at some point in the future lead to some harm and that's a standard that is used in many countries in the rest of the world uh by the way those of us who oppose that bad tendency test including most importantly the United States Supreme Court do so not because we deny that speech that short of the emergency standard can do harm of course speech short of the emergency standard can do great harm but the conclusion is that it's even more harmful even more dangerous to give the government that added latitude that added discretion which is essentially a blank check to pick and choose ideas that are disfavored you mentioned the Supreme Court and I think one of the things that is fascinating about both the book and and commonly misunderstood is just how uh you might say lock step the court is when torn apart by other disagreements when it comes to thinking about some of the pieces of the First Amendment and its application generally speaking those decisions are broadly aligned or nearly unanimous uh fascinating as far as that goes but you you mentioned something that I think is is worth talking about uh and that's this idea of speech being harmful right uh I wonder if you might build off of that point that you made there at the end that as it is not an acknowledgement that speech is harmless but that the alternative of giving government the power to censor or limit or um predetermine who or what ought might be able to say is actually more harmful than the potential of speech even and I think this is interesting in some of the areas that are most obviously painful for people so can you expand on that a little bit yes thank you so much Alan because 99% under the time when people make an argument that certain controversial kinds of speech should be censored the argument starts and ends with assertions and sometimes evidence that the speech is harmful uh so to take an example my prayor book was completely about hate speech one of the and the book is defending freedom of speech for hate speech not because I think hate speech is not harmful to the contrary I'm the daughter of a Holocaust Survivor I know that hateful speech can inflict enormous harm on uh various individuals and members of minority groups but the alternative of government censorship is is even more dangerous but one of the leading I would say the leading books that expounds a different perspective uh was written by a philosopher who teaches at NYU uh Jeremy Waldren and the title of his book and the entire content of his book is the harm in hate speech well yes but logically to conclude that speech is harmful cannot sufficiently justify restricting the speech unless you can make several additional showings which First Amendment law does demand fortunately uh number one that the harm can be materially reduced substantially reduced through speech restrictions uh number two that there's no less speech restrictive alternative for reducing the harm than restrictions for example counter speech or education uh might be even more effective than restricting the speech uh number three you have to uh balance the harms that come from empowering the government to restrict the speech because those harms will include the inevitable over enforcement right uh because laws are never precise and um no two people can agree on what speech is hateful so inevitably the price you pay for empowering government to restrict the speech that you think is hateful is also empowering the government to restrict speech that you don't think is hateful including even counter speech so one has to go through this multi-pronged analysis um one way that the United States Supreme Court describes this is uh we lawyers call strict scrutiny that government May restrict the speech if but only if it can show that the Restriction is necessary and the least speech restrictive alternative to promote a counterveiling goal of compelling importance so if you could show that hate speech restrictions are the least speech restrictive alternative that they will effectively and substantially reduce actual hateful attitudes then you can and should uh allow the censorship but that is a showing that simply has not been made throughout history around the world to this day I in my book on hate speech I I cite experts human rights experts from many other countries where it's completely lawful as a matter of free speech law to restrict hate speech but these human rights Advocates oppose the hate speech restrictions because they say they're simply not effective uh the hateful attitudes remain in place and may even be hardened as attention is increased as a result of the Forbidden fruits phenomenon sympathy is increased and uh that it would be much more effective to use counter speech educational strategies so one of the other pieces that has come up both in your book and and frequently in conversation is that uh Speech now is problematic in in one of a couple of ways one that the broader support of something like free speech is actually now a a partisan agenda in one way or the other so it's sort of attached to conservative promotion of ideas as one example or as a related idea that free speech is great for the powerful for those who are already in Authority in one capacity to the other uh but that is merely license for harming those who are powerless uh I you respond powerfully to that idea in the book and I I wonder if you might share a little bit with the audience here today why those ideas both miss the mark yeah oh so first of all let me be completely clear about this I believe that conservatives and powerful people should have robust free speech rights so uh to me uh Free Speech protection that redounded to those people among others would not uh would not be problematic but actually freedom of speech uh correctly enforced as by and large the current Supreme Court does benefits every single person and every single group no matter who you are no matter what you believe you are equally entitled L both to voice your views so long as you don't transgress that emergency principle and equally entitled to listen to choose to listen to other people's views um however as a matter of practical reality freedom of speech is especially important to anybody who is relatively powerless relatively uh minoritized Ed in terms of having dissenting perspectives or being in a minority group by by way of identity because we live in a Democratic Republic where appropriately government officials are responsive to the majority of their constituents or to powerful groups interest groups in their constituency and predictably are going to wield their power in ways that are less sympathetic to the viewpoints and voices of those who lack access to resources or lack access to political power and so that just makes sense as a logical matter uh if one looks through history and one looks at current events one sees that that logical analysis actually is born out in reality so to use American history for example uh throughout our history it's been dissident movements people and groups who are agitating to challenge the status quo to reform the status quo that have borne the brunt of censorship so I say to my Progressive friends who are champions of Human Rights and who complain that oh free speech is just used to bolster the powerful of conservative wealthy white men and so forth again that would be no problem from my perspective but it happens to be logically and historically inaccurate uh throughout American history the brunt of censorship predictably was born by the abolitionists of slavery by Advocates of women's suffrage by Advocates of Rights for labor unions by uh pacifists and conscientious objectors and uh protesters against various War efforts by members of the lgbtq rights movement by the Civil Rights Movement uh etc etc all advocates for social change especially depend on robust free speech I think it's a it's a powerful truism that if you lack Authority in a society what you truly have as your voice and empowering those individuals to use that voice those speech rights to Advocate and push for those protection of Rights those expansion of Rights ends up being so critically important to that sort of success and change that we've seen subsequently Alan and I have I've have had the privilege of sharing the podium many times for sphere programs with Jonathan routch who's one of the um heroic lifelong champions of lgbtq Rights including marriage equality and every time I hear John I I am so moved by his powerful eloquent uh heartfelt explanation of why for members of sexual orientation and gender identity minorities freedom of speech is so critically important and censorship is so dangerous and he talks about how heartbroken he is that too many of today's supporters of those movements lacking that historical understanding take free speech for granted and even attack it and that nothing could be more antithetical to their human rights cause one uh major feature of this book and even more so of your previous book uh is thinking about hate speech and how we how we respond to hateful ideas that are promulgated one of the ideas that you talk about extensively across all of your writing is this idea that the appropriate responses counter speech right to push back to uh to bring additional ideas and different perspectives to the table talk a little bit about about counter speech why is it so powerful as a tool and then I suppose as part of that uh the the concern that you mention in this book is the way in which it can sometimes feel like counter speech is being put on the burden of that on the individuals who are receiving hate speech right so how do we think about counter speech broadly speaking as a mechanism and why is it more complicated than merely saying those suffering abuse are the ones responsible for respons thank you very much and first of all counter speech is not my idea I know you know that Alan but that goes back to the pioneering Supreme Court uh initially dissenting opinions by justices Brandis and Holmes early in the 20th century that were finally adopted by majorities and in fact un unanimous as you indicated Ellen Uh current Supreme Court decisions uh They said that the remedy short of when speech does not satisfy the emergency standard it may indeed pose other harms but the remedy is not enforced silence it's answering it's explaining it's arguing and the reason why counter speech is is more effective and and before I get to your specific question is what we are targeting after all with respect to any problematic speech whether it's um hate speech whether it's disinformation or misinformation whether it's terrorist speech we're not trying to our goal is not to suppress the speech per se our goal is to affect the underlying attitude right we don't want people to be hateful we don't want people to accept and act upon disinformation which may be harmful to them as individuals into to our society as a whole we don't want people to adopt terrorist ideologies and and and wreak havoc and violence on on us and our fellow citizens and and once you realize that your goal is changing the attitude you then get back to this question is punishing the speech even an effective way to do that let alone the most speech protective way to do it and I think the answer to that has to be no uh people are not going to be in fact social uh science disciplines show that if you uh punish people even through cancel Culture by shaming and shunning you're much more likely to harden their attitudes than to uh get them to change their attitudes but the detractors from counter speech especially in the context of hate speech make a a number of false assertions about it similar to The False assertion that being a speech protector means that you absolutely always defend Free Speech no exceptions and one of of the other myths um that uh I I so often hear from from those who oppose counter speech and support restrictions is well it's unfair to impose the burden on people who are targeted by hate speech or belong to groups who are targeted by hate speech why should they bear the burden of counter speech I have never heard either a Supreme Court Justice or any other proponent of counter speech saying it is the responsibility of the people who are targeted or the groups who are targeted to engage in the counter speech not at all uh to the contrary it is the responsibility of all of us who believe in the counterveiling values who oppose hatred who oppose anti-Semitism any other kind of hatred islamophobia we hear a lot about today as well um who and and to be more affirmative about it those of us who support human dignity and equality uh and equal freedom and rights for all human beings have a responsibility I would argue not a legally enforced responsibility but a civic responsibility to constantly proactively affirmatively Champion those positive values now I will say and Jonathan himself has written about this with respect to LGBT Q writes that uh members of groups that have traditionally been disparaged have recounted that it is a very empowering um joyful experience to have the self-confidence and the rhetorical skills to answer back or to ignore and walk away whatever strategy uh you choose that that can be and a affirmation reaffirmation of your sense of dignity and uh certainly when Barack Obama was President he gave a number of speeches on college campuses uh where he was talking to black students and he said you know you shouldn't be shouting down condalisa rice or various others that were being shouted down at the time you know it would be much better for you you would feel more dignified and uh be making more of a contribution to your own well-being as well as to our society as a whole if you chose to answer back rather than than shouting down but that shouldn't be a responsibility that should be an opportunity absolutely uh for those of you joining us online I do want to encourage you submit those questions through there through the forms are there and for those of you here in person we'll be going to questions here shortly uh I want to turn a little bit from the specifics we talk about in the book to some of the Contemporary situations and challenges around uh free speech in the world today the as you you well know the hard part about being an advocate for free speech is that sometimes it's one group mad at you and the other times it's the other group and it changes so fast it's it's hard to keep your head on straight uh but in the last month we've seen sort of horrific conflict flare up in the Middle East and that's led to a whole variety of interesting challenges domestically as well when it comes to to speech concerns whether that uh law schools or law firms were sending offers of participation in law school or job hirings afterwards or people facing punishment uh in the face of strongly expressed opinions in One Direction or the other I I wonder if you might talk about that a little bit right now so thinking about the multiplicity of ways in which this is manifesting a speech concerns what are some of the guidelines that you hold to when thinking about how to respond to these challenging situations there are multiple different situations and the First Amendment analysis is always very fact specific so uh please forgive me if I I can't cover it all and if there are some follow-up questions I I would welcome them but interestingly enough I have been invited by a number of Publications to address various facets uh starting with very shortly after the October 7th terrorist attacks Barry Weiss reached out to me to write something for the Free Press which uh was published quite promptly thereafter defending freedom of speech even for anti-semitic speech a lot of people were very shocked at uh virulent language that came from college students and faculty members uh that were expressing what uh views that a lot of Jews considered to be um hateful anti-semitic spee speech and so I had to explain why ultimately you know I I truly do believe this one of my friends said to me Nadine isn't it hard for you as the daughter of a holocaust Survivor to uh to defend free speech for for anti-semites and I should say as the wife of an Israeli to defend free speech for anti-zionists and I honestly can say it's not hard at all because I am absolutely Ely convinced as I said to uh one of your earlier great questions Alan that it is especially members of embattled minorities that especially depend on the power of free speech and um our speech is going to be attacked as hate speech or disinformation and subject to censorship so with all of its flaws I think it is the least bad tool available um for those of us who are being targeted by hateful speech but unfortunately we have also seen too many instances including on campus of speech that does satisfy the emergency standard at least from the evidence that is publicly available and I do recognize that you know we have to let the factual records develop but I mentioned that one subcategory of speech that that satisfies the emergency standard is what the law calls a true threat uh and the word true is thrown in there to make clear that we're not talking about the word threat the way we tend to use it more Loosely in colloquial language I've heard many students say I feel threatened by the fact that a conservative speaker is going to be speaking on my campus that's not a true threat uh but when the speaker is targeting a particular individual or small group identifiable group of individuals and intends to instill a reasonable fear reasonable means objective so we're not just talking about a thin skinned person who's unusually fearful but the speaker intends to instill a reasonable fear that the targeted audience is going to be subject to attack that's a punishable true threat now a really important Point here is the speaker does not have to intend to carry out the the violent act it's sufficient that the speaker intends to instill a reasonable fear because if you reasonably fear that you're going to be subject to attack that's already having a demonstrable negative impact on you right it interferes with your freedom of movement and your freedom of speech and we've heard many accounts of Jewish students on campus uh being subject to intimidation and and to um reasonable fears of uh of threatening uh resulting from threatening Communications uh one dramatic example resulted in an arrest last week at Cornell I'm sure many of you have heard about it uh the US attorney for that area in New York um brought a criminal complaint against a student for virulently anti-semitic threatening language that specifically identified a a particular facility on campus which was the cafeteria that served kosher food where Jewish students um hung out and so based on the facts that I've read I I agree with the FBI and local law enforcement um that that was a punishable true threat sadly we've also seen and this doesn't go without saying actual violent conduct is not protected uh today I read about an assault on another campus I believe in University of Massachusetts Amherst by the way I've seen a a video that uh seemed to show a Jewish student at Harvard being subject to um threatening um conduct there were demonstrators that were um crowding in upon the student no physical contact but I think um were intimidating so that's really important because it's not clear that there has been sufficient protection against that kind of expressive conduct that crosses the line to uh be punishable harassment or true threats or intimidation and and that's really important that there be discipline now what about uh constitutionally protected speech that becomes the basis for private sector employers or others to engage in what we've been calling cancellation tactics that is not government punishment but uh punishment by those who wield power whether it be an employer to refuse to retract a job offer which has happened employers making statements that they will not hire students who have engaged in certain protection um others uh various or organizations that are engaging in so-called doxing running trucks around campus that have uh plastered big huge blown up photos of students and their names uh saying here are the major anti-semites on this campus all of that is protected conduct it and and including protected speech with one caveat that I feel important as a law professor to mention and I want to thank um U UCLA law professor Eugene valik for having done pathbreaking research there are there is no federal law that bars employment discrimination in the private sector on the basis of political beliefs right employers private sector employees under employers under civil rights statutes may not discriminate on the basis of race religion gender and so forth but political beliefs including expression about political I uh controversies is not a protected category under federal anti-discrimination law but it is under the anti-discrimination laws of certain States and certain localities and Eugene has reminded employers that they better check the local law in New York for example before a law firm retracts an employment offer job an actual job uh from some somebody because of a political belief they express better double check that that's legally permitted under state law but I think it's a Min it's definitely a minority of states and localities that have those laws so it's a a question of yes it may be legally your right to do that as an employer or as a doxer uh but is it the right thing to do and my view is that we should use the same standards in this context that we use in other contexts when we say that somebody who misgenders quote unquote or somebody who um says something that's deemed to be insensitive on the basis of race or gender which has been the basis for enormous cancellation campaigns including people being shamed and shunned and ostracized and losing their jobs you know for those of us who say well that's too harshly disproportionate a retribution for speech that some segments of our community see as wrongheaded and deeply offensive I would use the same standards for speech that others of us see as wrong-headed and deeply offensive and so I would argue for a more nuanced approach rather than categorically saying we're not a law firm is not going to hire a student who participated in any kind of um expression that is viewed as pramas or not sufficiently anti- Hamas rather than that categorical exclusion I would ask for urge uh that the employer voluntarily um consider a more nuanced approach that would examine with respect to each student well what exactly was your role you know were you just to use the Harvard example were you a member of One of 30 student organizations that signed onto this petition uh that had the offensive language but you didn't know that your organization was going to do that let alone have the opportunity to review it and approve it uh after you did learn what the statement was did you perhaps uh dissociate yourself from either the statement or from the organization um have you rethought your views and let you to so to use it as an educational opportunity uh in the Hope quite frankly of persuading some of these students rethink their views so I'd love to turn to questions now so we're going to have a couple of people coming around the room with microphones uh so while they're up and moving about I'll take a very quick question from our online panel and then we'll come over here uh over here first and then over here second uh so briefly online uh someone asks about what are uh Free Speech restrictions that are moving toward limiting what teachers May teach in the classroom I know this is a complicated question but a number of states have looked to reduce availability of books or text or well you know the conversation very well what are some of the relevant First Amendment considerations in that uh and then we'll jump there and there and I apologize because you say quick questions is the questions are quick as the answers are so complicated but appropriately so and and and this question about uh curricul and library books in the k212 situation which is distinguishable from the campus situation is very difficult because it involves ATT tension between two very important principles that undergird our whole constitutional system but are definitely in tension with each other one is the presumption that the majority rules right in a Democratic Republic um majorities acting through their dual elected representatives get to make basic public policy decisions including what books should be uh included in the curriculum what uh ideas should be included in the curriculum this is done at a very local level so it's like the Quint quintessential example of Grassroots democracy in action but of course our Founders and their wisdom did not create a pure democracy they said that some freedoms are so fundamental that no majority no matter how strong may take them away from any minority no matter how despised or small that Minority might be and one of those freedoms is is First Amendment rights and the Supreme Court in the one decision that it has issued on this issue the court was very deeply split showing how complicated the issue is but the principle that they agreed on essentially is the following that what is determinative as to whether the school board or whatever the local official is making the decision about the curriculum or the library books um uh the determining Factor as to whether that does or does not violate the first amendment is what is the reason for not including something in the curriculum or in the library if the reason is a matter of you know a Viewpoint neutral nondiscriminatory re reason such as um educational suitability age appropriateness relevance to a course we're teaching there the local officials should be deferred to that's what the majority of our community is electing them to do but if the reason is solely because of disagreement with or disapproval of the ideas here we get to that Viewpoint neutrality concept cep or discrimination against the author because of race or politics for that matter um then that violates the First Amendment so the examples that the Supreme Court gave that would be impermissible are quite extreme they said you know if a school board decided that they would remove all library or Library board decided that would remove all books that were written by uh authors who were members of the democratic party that would be unconstitutional or uh written by members of racial minorities that would be unconstitutional so there's quite a bit of latitude and we have to look on a Case by case basis absolutely let's come up here problem I'm really loud whoops I'm really loud and now I have a microphone if I just shout louder than you aren't I exercising my first amendment Free Speech rights so the um it all depends I'm sorry that's going to be my answer to just about everything because if you were shouting over me briefly that would in fact be an exercise Rob not only of your free speech rights but the rights of the audience members to hear your perspective if however you are shouting in a sustained manner that continues to make it impossible or very difficult for the audience to hear me that violates not only my free speech rights but the audience members free speech rights and you know sometimes the the devil really is in the details we've had a couple of incidents that have been very well publicized at law schools uh among other places where uh the shouting has prevented an invited speaker from being heard for about 20 minutes let's say out of an hourlong program and we've had deans of of law schools say well 20 minutes isn't a substantial disruption so we're not going to penalize the students for for doing that uh I would say you know two minutes would not be a substantial disruption but um reasonable people can disagree but you can you can shout even more rob you haven't used up your two minutes we have bouncers Rob we'll have them take you up uh let's come up here to the gentleman in the Blazer uh yes first thanks thank you for the clarity of your Exposition and um it's been informative I think for all of us I have two Gray Zone questions for you not to spend the entire day on complicated questions but the first is that six years ago the Supreme Court in packingham nearly unanimously ruled that Facebook at that time which was M miniature compared to what it is today was in effect the a Town Square and thus its private sector ability to constrain speech in the Town Square um was colored or limited or restrained um the packingham seems to have been lost in the shuffle I've not heard a lot about this at least in in um app pellet litigation and um the push back has been well now you're forcing the Town Square owner and they somewhere use the analogy of a a a a shopping mall what that that was declared to be the Town Square and you're forcing the shopping mall owner to allow Nazis and others to put on demonstrations in the in the private shopping mall so could you sort of untangle this and tell us where it stand so the second question equally Gray Zone two years ago the US government declared that that uh RT Russia Today was no longer a media it was now a propaganda outlet and the criteria even though deela BBC F vatka which are all government-owned were press this was not press and the Americans working for that outlet whatever it is propaganda Outlet or media Outlet um were thus constrained by a decision by the government to declare somebody is pressed and somebody's not pressed so H H who who has a right to declare that the New York Times is not press it's propaganda or is press and needs to be treated I it's I can't figure out who can make those decisions but they obviously are being made and and uh if you could untangle that a little bit thank you well these these are two excellent questions um and the first one I can understand is very this is a very very confusing area um you slightly misstated or you did what you said was absolutely correct but you left out one important part of the Supreme Court's analysis in packingham which may um be very helpful uh and and that is in the packingham case the United States Supreme Court did have the very strong language that you talked about in which the which I quote and other people quote all the time in which the Supreme Court said something like this there used to be a debate in this Society about what are the most important platforms for political debate now there is no longer any debate about that it is clearly the online media in general and social media in particular so the court really did four square say this is a really important platform not only for individuals to communicate with each other but in a democracy for us we the people to engage in Civic discourse with those who are seeking to represent us or who have been duly elected to represent us that said the specific issue before the court was an issue not of Facebook's implementation of its own content moderation standards uh but rather a government law in that case a new North Carolina law that barred convicted sex offenders even after they had served their terms from having access to this important private sector platform so there was what we lawyers call State action in the sense of government action was being challenged there the North Carolina state law that denied access to sex offenders to what what the Supreme Court said is a really important platform so in other words this state law is really interfering with your freedom of speech the different issue and really important and difficult issue that the court is facing now are state laws that constrain the content moderation decisions of the private sector platforms themselves and we have two state laws that have been ruled on with completely different results by the lower courts that the Supreme Court will weigh in on um basically these laws came from Texas and Florida and there were concerns that uh conservative voices were being disproportionately um subject to so-called content moderation removal or deplatforming uh or you know down having being muted uh damp ified online uh and there is a you I I have to say the the scholars and that I respect the most who have been studying these issues are really haven't reached a conclusion it's sort of like what is the lesser of all evils here we recognize on the one hand consistent with that packingham statement if you don't have freedom of speech on these social media platforms for all practical purposes you're not going to have meaningful freedom of speech at all when Donald Trump was deplatformed from Twitter and and Facebook the ACLU issued a statement that raised great concerns about that not denying that Twitter had a First Amendment Free Speech right to do that as a private sector platform but pointing out the enormous adverse consequences not so much for Donald Trump himself but you know because he has access he's got the resources to uh go create his own platform as he did or to go to Fox News or whatever but what about the other you know the disempowered the economically uh disenfranchise that you raised earlier Alan they're the ones that are particularly not going to have an option and really importantly what about the rest of us who have an interest in hearing what who was then the duly elected president of the United States had to say uh or today when uh he's a leading Contender for uh for the being reelected to the presidency so these are very complicated issues and what I have found surprising is that even libertarian friends of mine as well as conservatives and um and and liberals have all advocated or at least not rejected a proposal that some of these companies be treated as regulated Public Utilities or common carriers that would be required to carry certain cont content in a non-discriminatory way the way the landline telephone companies are not allowed to discriminate against particular speakers or messages that obviously raises concerns about private property and Free Speech rights and editorial rights of the platform so very very difficult issues unfortunately we've run out of time for our full session we've barely scratched the surface of all the amazing issues that come to thinking about Free Speech whether that's disinformation and misinformation conversations media Outlets other impacts in schools and communities uh my recommendation to you all start here pick up a copy of the book read it it'll give you a fantastic basis to engage in some of the ones we couldn't get to naen as always thank you so much for joining us for the conversation today it's been fantastic really enjoyed the book and the conversation all please join me in thanking na oh and thank all of you for your great questions including you for your great questions for those of you joining us here in person we will have lunch available immediately after the session out in the lobby at the front of the building thank you all so much for coming [Music] today hey I'm just um calling to say um you know that I miss [Music] you

Channel: The Cato Institute

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Id: rfAGCvOg5X4

Length: 65min 51sec (3951 seconds)

Published: Tue Nov 07 2023