"Hate Speech, Counterspeech, and the First Amendment" with Nadine Strossen and students from UGA

okay good evening everyone thank you all so much for joining the AHA foundation and UGA honors student council for a q a webinar tonight with Nadine straussen entitled um hate speech counter speech and the First Amendment my name is wider Norris I'm a student here at the University of Georgia and I'll be moderating tonight's event Nadine strassa the John Marshall of Garland the second professor of law America at New York law school and past president of the American civil liberties Union is a senior fellow with fire the foundation for individual rights and expression and the leading expert and frequent speaker on constitutional law and civil liberties she's testified before Congress on multiple occasions and serves on the advisory Boards of the ACLU academic freedom Alliance heterodox Academy National Coalition against censorship in the University of Austin which is how professor straussen and I met last summer the National Law Journal has named strawson one of America's 100 most influential lawyers and several other public Publications have named her one of the country's most influential women for many honorary degrees and awards include the American Bar association's prestigious Margaret Brent women lawyers of Achievement Award in 2017. when straussen stepped down as ACLU president three ideologically diverse Supreme Court Justices participated in her tribute luncheon Ruth Bader Ginsburg Antonin Scalia and David Suter she is the author of hate why we should resist it with free speech not censorship and Free Speech what everyone needs to know which is forthcoming later this year she is also the host and project consultant for free to speak the working title of a three-hour documentary film series on Free Speech scheduled to be released this fall her book defending pornography free speech sex and the fight for women's rights was named a New York Times notable book of 1995. and her book hate was selected as the common read by Washington University and Washington University Professor strawson has made thousands of public presentations before diverse audiences around the world including more than 500 different campuses and in many foreign countries and she has appeared on virtually every single National TV news program Professor scrollsen I know the audience and I are excited to hear your thoughts tonight thanks so much for joining us Weidner thank you for that really gracious introduction and so honored to be speaking at the University of Georgia I am wearing your school colors in your honor it's a tribute I like to pay when I'm speaking on any campus but I'm especially happy when it's a campus that has chosen excellent colors as you have especially because they match the cover of my book they do they do some would say it's fate that you're here speaking today Professor straussen well thank you we're so excited to have you uh we'll spend the first 45 minutes of this afternoon talking through questions that have been prepared beforehand and then for the remaining 45 minutes we'll take questions from viewers viewers can submit their questions at any time through the zoom q a feature you can also submit them through the chat um but it's most effective through the Q a feature um so we'll Dive Right In you and I have been friends via email for a long time as you've done a great and long job in planning this we're on a first name basis so please let's continue that well I appreciate it Nadine that feels very strange for me to say but um I appreciate it so would you mind starting by telling us what the legal definition of hate speech is there is no legal definition of hate speech precisely for the reason that the United States Supreme Court has never recognized any category of speech defined by its hateful content which is therefore to be treated specially either subject to No Free Speech protection or to less Free Speech protection than any other speech so let me contrast that for example Weidner with the concept of obscenity uh which I'm sure is a word that many of you have heard obscenity is a legal term of art it is a label the Supreme Court has applied to a defined category of sexually oriented speech that merely by virtue of its content what it depicts is deemed by the Supreme Court to be excluded from First Amendment protection that's a very controversial holding but it is the whole thing the Supreme Court has repeatedly been asked to do the same thing for some defined category of hateful speech and it has repeatedly refused to do so in recent years by overwhelming unanimous or nearly unanimous um rulings so I use the term hate speech the way most people use it today which is a colloquial term to refer to speech that conveys hateful or discriminatory ideas typically based on identity factors such as based on race or religion or ethnicity and so forth okay that makes sense so you're saying that the only uh that obscenity is distinct from hate speech and the obscenity has a recognition by the Supreme Court in a specific standard but exactly yeah so that the the definition defines what the speech is about what is depicting what is describing what its message is merely based on that message this subcategory of sexual speech is constitutionally unprotected that's a complete anomaly in First Amendment law every other controversial kind of speech including hate speech uh is not constitutionally unprotected just because of its message but if I can go beyond that Widener the Supreme Court's First Amendment rulings are really very commonsensical the more people know about them the more they tend to be supportive they may sound rather abstract but I I hope I can explain them in ways that underscore how common sense they are when you get beyond the content of the speech or the message of the speech with uh which is never a basis for punishing it with this sole archaic exception of obscenity but then when you look at the context of the speech all of the surrounding facts and circumstances in which it is uttered the Supreme Court has sensibly said that speech with any message including a hateful message but also a non-hateful message if in the particular facts and circumstances it directly imminently causes or threatens certain specific serious harm than it can and should be punished and much speech with a hateful message can satisfy these contextual standards for punishable speech let me just add two other points to help sometimes you explain the same thing in different words it's uh easier to remember so the Supreme Court has often use the term emergency the emergency principle to summarize this notion that speech when in a particular context directly imminently threatens serious harm in other words it poses an emergency then it can be punished but never solely because of disapproval or dislike or even loathing or fear of its message alone that's not a sufficient justification okay I heard you talk you briefly mentioned the uh intentional incitement to imminent lawlessness would you mind talking briefly about the shift in the Supreme Court from the bad tendency test uh to the emergency tests wow you really show your knowledge of First Amendment history so for most of the um for most of us history the First Amendment like many rights protect and Provisions in the Constitution went unenforced um disrespected I mean that's a really important lesson for all of us in this audience to uh to keep reminding ourselves that the First Amendment and other constitutional guarantees are only words on a piece of paper they're not self-enforcing it really requires us we the people to quote the opening words of the Constitution who wield The Sovereign power to be familiar with what our constitutional rights are to demand that government officials actually respect those rights and to take action if they don't so that's a process that really only started to take off in the middle of the 20th century uh and no coincidence that at that time both the First Amendment Free Speech clause and the equal protection Clause of the 14th Amendment which had pretty much gone ignored and violated with impunity through uh most of their history the Supreme Court started to actually put teeth into these constitutional Provisions in response to activism on the part of civil rights organizers um that civil liberties organizations and I I you know it's interesting that the increasingly strong enforcement of both sets of Rights went hand in in hand um that's uh now I've got we can come back to that later because too many critics from the left today too many critics of free speech wrongly uh assert that we have to choose between rights of equality concerns about inclusivity and so forth on the one hand versus free speech on the other hand and actually nothing could be further from the truth these rights are mutually reinforcing but the before The Supreme Court strongly protected Free Speech starting in the middle of the 20th century it used a so-called bad tendency test as the connection between the speech and the feared harm as a sufficient justification for punishing the speech so the court basically said uh anytime speech has a bad tendency it might perhaps potentially at some indefinite Future Point cause some harm that's enough to justify censoring it and obviously I hope it's obvious that just about all speech could satisfy such a loose standard right and once you have a standard that gives so much discretion to the enforcing authorities it is completely predictable that they will exercise that discretion not to punish the speech of the powerful not just punish speech that defends the status quo not to punish speech of people who are in the majority in terms of politics um ethnic background or anything else but to the contrary a disproportionately to punish speakers who are dissenters who are members of marginalized and disempowered minority groups and so throughout U.S history despite the existence of the First Amendment Free Speech Clause we saw censorship wielded with impunity against abolitionists against women's suffragists against Advocates of civil rights against anti-war protesters certainly against communist socialists anarchists against civil rights demonstrators and interestingly enough it wasn't until the Supreme Court uh changed that standard for the very strict standard that you referred to Widener that a number of equality movements that had been struggling forever to get off the ground finally did so so the current standard the so-called emergency standard which was put in place in a unanimous decision in 1969 it was an ACLU case I'm I'm proud to say the particular example of speech that would satisfy the emergency principle that was involved in that case is the one that you referred to the speaker intentionally incites imminent violent or Lawless conduct that is likely to actually happen imminently it's a very demanding standard but it is one that can be satisfied and you know there are other examples subcategories of speech that satisfies the emergency standard that can be satisfied by by hate speech one is the so-called true threat and lawyers use the adjective true because in everyday speech we use the term threat rather Loosely I've heard students say you know I feel threatened by that speaker whose ideas I I dislike right that's not going to be a punishable true threat a true threat is when the speaker intent is targeting a specific you know either one individual or small group of individuals and intends to instill a reasonable fear that the targeted individuals will be subject to to violence and the speaker doesn't have to intend to carry out the violence but the mere fact that you are reasonably fearful that means it's an object of fear a reasonable fear that already curbs your freedom of speech and your freedom of movement if if I could give a concrete example Widener of how these principles play out in a real world situation from 2017 in Charlottesville many people will remember the um that unite the right demonstrations in Charlottesville and the ACLU came to the defense of the Free Speech rights of the unite the right demonstrators and there was is an attempt to let me just say the ACLU as on the Forefront of civil rights and civil liberties has a history that I'm proud of but it's always controversial of Defending freedom for the thought that we hate uh to to paraphrase that that line that's always attributed to uh Voltaire actually written by his biographer um but um uh even though we there could be no ideas that are more antithetical to the ACLU than the United right speech racist speech we absolutely defend the underlying principle that government may not suppress the speech solely because of the despised viewpoint so when the unite the right demonstrators were chanting you will not replace us Jews will not replace us and I'm a Jewish person the daughter of a holocaust Survivor I could not load that message more but I'm proud that the judge agreed with ACLU that the loathsome message did not justify censoring the speech but on the Friday night of that weekend um I believe the date was August 11 2017 um in an unplanned demonstration these Marchers were approaching at a very menacing distance some students on the University of Virginia campus who were ringed around a statue of Thomas Jefferson and at menacingly close distance the unite the right demonstrators were not only chanting those odious words they had lighted tiki torches flaming which they were brandishing in the faces of these counter demonstrators now that clearly crossed the line to a punishable illegal uh true threat and in the reports that were done afterwards there was a consensus that the police failed in not arresting them for that threatening conduct okay I appreciate you distinguishing between kind of bad tendency test in the emergency principle used as well as those kind of tangible examples of what um what a true threat looks like and on that note I'm curious to hear your thoughts about how kind of mental distress comes into play so one thought I had is um by speaking so often of the importance of a free expression do you deny uh that hateful speech can have direct harms on individuals mental health um like psychic injury and I'm curious why these harm should be considered differently from physical harms because I mean with the normalization of discussing mental health we're realizing it mental health is not necessarily in a separate box than physical health and so how do you parse out those differences between physical imminent physical danger and the direct danger that truly offensive words may have on something well excellent questions Weidner and the law does not draw the right line distinction that you're suggesting between physical danger and emotional or psychological danger and the true threat is a really good example of that because to be a punishable true threat the speaker does not have to even intend to carry out the actual physical violence right it's sufficient that the speaker intends to instill a reasonable fear on the part of the targeted audience member and notice the harm that the audience member is incurring is not a physical assault but it's the fear so there is a recognition in that context that this particular psychic or emotional state namely fear of imminent violent conduct is sufficiently harmful it has a tangible impact not only on your psyche but that will in turn if as as psychological situations always do affect your actions and your reactions so you know those if I were a counter demonstrator in that situation I would definitely have my free speech chilled I would have my freedom of movement chilled so it's all a matter of of degree and I think this is a really really important Point people who know less about Free Speech tend to um assume that it can be reduced to false binaries such as you know speech is absolutely protected it's only conduct that's not well you know the the law is is sensibly much more complicated than that that said not every time that somebody is insulted or offended or traumatized or upset by speech that is not always going to be enough of a justification to punish speech and I've used those terms with the greatest respect I do not at all minimize the suffering that is associated with each of those conditions but there are certain counter bailing considerations uh if we allowed the law to punish any speech that was deeply offensive deeply traumatizing deeply upsetting deeply wounding and coming up with all the synonyms that that are used I'm distracting um we would have virtually no oh Peach left including in the all-important public sphere I mean just think of all of the politicians speech and government officials speech that is deeply upsetting to many people um we had you know Donald Trump I think was perhaps he was deliberately being provocative but um I don't mean to single him out but he's an example of a government official he was for four years the duly elected president of this country commander-in-chief leader of the Free World it was really important to let him speak no matter how offensive or upsetting or traumatizing his speech definitely was to many people including to to many students and you know I always think it's important to give examples from uh many different spots on the political spectrum because these are new neutral points in the sense that they apply equally regardless of partisan politics I know people who continue to be deeply upset and offended by Hillary Clinton's famous or inFAMOUS statement about the so-called basket of deplorables I know people who feel that she was referring to them and to people like them and who continue to you know really feel like second-class citizens as a result of that language and the examples could go on and on so the fact that somebody is emotionally upset by speech cannot alone be enough of a justification to allow the speech to be punished that said the court has done I think a very good job of carving out a few categories of um emotional harm caused by speech that it allows to be punished I gave one example which is the fear engendered by a true threat another example is in a tort action that's called intentional infliction of emotional distress but here the court has hemmed it in quite closely and said um if the speech that causes the emotional distress is about a matter of public concern in a traditional public forum such as a street a sidewalk or a park this is government property that have set aside for uh traditionally for the discussion of public issues then important as it is to protect people's emotional well-being it's even more important to allow the public discussion of these issues so let me hear describe the facts in a very controversial case in which the Supreme Court fairly recently upheld that narrow concept of punishable intentional inflection of emotional distress Widener and to you and many others it might sound familiar it involved a church called the Westboro Baptist Church which has a very hostile attitude toward gay people and toward members of the Catholic church and toward members of the U.S military Jews racial minorities basically anybody who's not a member of their church and they um when the United States was engaged in military operations overseas they would pick it at the funerals of slain members of the U.S military believing that the military was giving too many rights to lgbtq people and um at one such demonstration outside the funeral of a slain Marine Corporal Matthew Snyder or they had these signs and please forgive me I'm going to quote the hateful words on their signs uh God hates bags God bless dead Soul God loves dead soldiers you know a Dead Soldier is a good soldier awful messages again against Catholics as well and Jews as well and there was a lawsuit that was brought by the father of Matthew Snyder claiming that he had suffered emotional distress as a result of these demonstrations and uh he won in the lower court but the Supreme Court overturned it only with over only one descent and to come back to a really important point you made wider the court did not at all trivialize the emotional harm that the father suffered and with with physical impacts as as often happens right um he couldn't sleep and that was bad for his health and had bad health manifestations and the court said you know we recognize that there is real harm here but it would be even more harmful to give the government the power to suppress speech about public issues and they decided that these messages were about public issues military policies policies toward um lgbtq people and so forth and in a democracy the lesser of the two evils is to allow the harmful psychologically harmful speech about um public issues to go forward rather than the harmful policy of government censorship of debate on important issues you've touched on the damages of hate speech and so I'm kind of I'm curious how we can bring in counter speech to the discussion so I have some of my friends um have voiced opinions to me and they said Widener being a member of my minority group like I don't feel like this owner should be on me to have to bear the weight of counter speech these really hateful ideas and to me that that makes sense that's why should these members being oppressed have to shoulder that burden when many other individuals don't have that expectation and then second part of that question how do you respond to the idea that counter speech this idea of rebutting an idea that's been put forth legitimizes that speech so kind of a two-part question and I'd also like to add a third part to it because I don't know if you've been following the controversy at Stanford law school that erupted late last week with the uh very vociferous disruptive counter protesters who shut down a federal judge it looks like you might not have heard about this but they're arguing that that should have been seen as protected counter-speech so if you remind me well we'll come back to that so first of all counter speech again it's not a legal term of art but it's used to summarize what the Supreme Court has often said um is the appropriate answer to speech we disagree with whose Viewpoint we dislike or loathe so remember we're not going to allow it to be punished but the Supreme Court says the appropriate response is more speech answer it back refute it um but counter speech really is any use we make of our freedom of speech and our other freedoms to counter or undermine the negative message that consummates speech or any other controversial speech disinformation terrorist speech you name it and it can be infinite in Variety in each particular situation you want to decide what is the most effective strategic um course that I could take and that it depends on who you are and that gets to the point that of course it's not the responsibility of either somebody who's directly targeted by hate speech or anybody who's a member of the targeted group they have no responsibility to engage in counter speech nobody does but I personally think that all of us who are trying to resist hate right that's the overall goal of my book I want to resist hatred and discriminate and stereotyping as the daughter of a holocaust Survivor among other reasons for that passion and I believe that censorship is not an effective way to do that but in many many circumstances counter speech is now one form of counter speech that is really underrated especially on college campuses is ignoring the hate mongers ignoring the speech that you dislike the Southern Poverty Law Center put out a guide to what campuses should do to when when white supremacists are coming on campus several years ago there seemed to be a concerted effort on the part of some white supremacists to Target campuses and splc said look you may feel you may feel morally virtuous to you know be in their face and to try to shout them down and shut them down and de-platform that but it really is just giving them the oxygen that they are seeking the attention that they're seeking and if what your goal is uh is to mute their message to you know try to stifle its impact then the most effective thing you can do is just ignore it and if you want to you know you feel you want to express yourselves then have a separate event somewhere else you know not that that will give your positive affirmative event attention uh but will not draw attention to them now with respect to other people who are targeted themselves um might well choose to engage in um direct refutation or um that many members of minority groups have talked about including students what an empowering feeling it is when they issues to speak back especially when they are supported by leaders of the Campus Community by other students and by the way that's another form of counter speech and it ties into your excellent point about emotional harm Widener if a student does feel insulted or traumatized uh harmed in any way by hateful speech then it is really helpful for other people to offer support and encouragement and sympathy and people who have written about this have said that that makes such a difference that when in the older days when there was much less counter speech even worse than the hate speech itself was the failure of other people to protest against it let me make one other point about about counter speech and that is some people try to minimize its impact by saying oh it's all only words you know how can you combat hatred with only words hey but wait a minute hate speech itself is only words right so you really can't have it two ways if if hate speech is so powerful despite the fact that it is only words so powerful to do great harm then counter speech by the same token can go very far toward undoing that harm and their social scientists now are are studying counter speech including online and the studies are very very encouraging about uh its positive potential and I've I've only given you just you know a tiny fragment of examples another really important category counter speech is trying to wean away the hate mongers themselves to um as they themselves say some who have been redeemed they things almost religious terminology or like you know when you're getting out of a cult um and they talk there are many former members and even leaders of hateful organizations that have been redeemed through engaging patiently with other people who help them to understand the um error of their ideas and of their expression there are many organizations that consist of these individuals one that's based in Chicago is called life after hate and they're working with universities and others to research what are the most effective counter speech strategies for um for stopping somebody who's flirting with uh uh hateful organization from stopping them in their tracks or even if somebody is already a member how to help them extricate I want to ask you a question that you told me last summer that you often asked your students and that's whenever they make an argument you ask them what the best counter argument is yes yes yes sorry to put you on the spot with this but I'm curious what what keeps you up at night with your argument what do you find that what do you find to be the most convincing counter argument to your position against government censorship of hate speech well so may I start by just um specifying exactly what my position is which very much Accords you know pretty much exactly with what the current Free Speech law is I already described in one way a limit that the supreme court allows to be imposed on speech and I agree with that uh including hateful speech that is when the speech poses an emergency and another way of describing when speech may be restricted this is a term that lawyers use a lot but please bear with me it's called strict scrutiny and that means that um the court will strictly scrutinize or closely examine if you will the asserted um rationale for the particular restriction the government has the burden of proof but if the government can show that the particular restriction on speech is necessary to promote a goal of compelling importance then the Restriction is permitted it's really another way of conveying the idea of an emergency that the Restriction is necessary the least speech restrictive means to promote some really important goals such as Public Safety such as individual mental and psychological well-being such as on peace and safety law and order a sense of individual dignity I would say all of these are important goals and the difficulty that the government usually has is in showing that the Restriction not only is actually effective in promoting the goal but is necessary and that means that the government couldn't do anything that was less speech restrictive that would be as effective so um so that said if there were evidence that an additional restriction beyond the kinds of restrictions that are acceptable now would be effective in countering hatred and moreover would be more effective or at least as effective as counter speech and other nonsensorial measures then I would support it and much more importantly Widener than the U.S Supreme Court would support it but I hope you understand what a heavy burden that is I think it's an appropriately heavy burden and I I do you know one of the questions I have asked myself um is is that too heavy a burden um is it somehow preferencing free speech over other rights such as equality rights and and the answer to me is no because you know that's one of the questions I answer answer my new book because it keeps coming back to no matter how well intended laws that go beyond the emergency test um really don't do any good in encountering hatred and conversely may do a lot of harm and here is where it's really important for me to cite the many human rights activists from around the world that I do quote in in my book on hate speech because so many of them oppose restricting hate speech beyond the emergency situation not at all because of concerns about free speech in the laws of other countries it is completely legal to have to implement the bad tendency test against hate speech that's essentially what the law is in Germany in France the UK Canada virtually every other country in the world and yet the human rights activists in those countries and leaders of minority groups oppose those laws not because of concerns about Free Speech principles but because they say these laws no matter how well intended do more harm than good they give too much discretion to the government and the government uses that discretion predictably to silence dissent and even ironically to suppress people who are trying to speak up against hate even to suppress members of the very minority groups that are hoped to be protected we've talked a good amount about hate speech and counter speech I've I've gotten some questions about social media so in the last couple minutes we have before we take audience questions I wanted to hear your thoughts so a current question uh before the courts is relates to section 230 but also is there a difference between an online media platform simply post allowing for the posting of an opinion and actively algorithmically promoting that speech that may be highly offensive hateful um do you see those do you see that algorithmic promotion of questionable speech uh deserving of separate I don't know not sanctions but certain restrictions on platforms and the uh the ability of the government to regulate platforms because of those algorithmic considerations I think that is a difficult question because among other things it depends on certain technological factors as to which I am not an expert at all but I have read griefs in the Supreme Court by organizations of computer scientists and by my go-to organization on issues of online speech is a group called The Electronic Frontier Foundation or eff which consists of many First Amendment and civil liberties lawyers as well as technological experts and their briefs say that um that there is no way to engage in content curation of any sort online without using algorithms and so you know to use the term promoting um hatred or particular messages is really beside the point what they're actually trying to do is to sort through in a much less granular way materials that are more or less likely to be of interest to their members of Their audience so the users of their platform so to take an example that I find very compelling the algorithms try to sort out spam and junk mail well that's something even as a free speech Champion I don't want that kind of of material and they say that if you were to clamp down on their ability to engage in that kind of algorithmic sorting um we would get a lot of stuff that we you know they would probably have to if they gave it up altogether we would be subject to just such a mass of information this is misinformation junk spam um that the use futility of the platform would be really undermined so I you know so the reason I'm raising this point Widener is that I think the way the question is phrased you you make it sound very sympathetic so I let me just say hypothetically let's assume hypothetically as a technical matter the algorithms were in fact not only uh serving as a platform for all messages not only using some tech you know broader technique to try to protect us against spam and give us stuff that we're interested in let's assume for the sake of argument they actually went beyond that and were affirmatively taking Special Steps to promote hateful messages to me that would be in a different category that would make them not just a platform that should be immunized from uh liability for third party content that others are putting there that would make them more engaged in the content provision uh process themselves and therefore they should logically and fairly be subject to liability so I think one of the debates though is about the underlying factual and technological premises well thank you so much for answering those questions Nadine I know our audience has lots of burning questions they'd like answered um so now we can transition into answering as many of those as we can so let me just pull some of those up okay our first one is what is the legal definition of obscenity and I think kind of what the audience member is trying to get that is in your book hate you you critique hate speech laws because there's no way you can draw the lines sharp enough virtually it's kind of what I gathered from your position but the Supreme Court itself said um if the material is objectionably uh or objectively offensive um what does it mean to be objectively offensive uh is that not just an arbitrary standard that the court has created for obscenity yes absolutely opposed sanity exception as have many Supreme Court justices all across the ideological Spectrum many people are surprised that it was critiqued for example by Antonin Scalia probably the most famous conservative who has sat on the Supreme Court in recent history the Supreme Court has not Revisited first of all the Supreme Court created the obscenity exception in 1956 Adam holcloth the first amendment says oh I happen to have it on my mug here Congress shall make no law abridging the freedom of speech it doesn't say unless the speeches about sex or unless the speech is offensive right but in 1956 they created this exception not admittedly with no evidence that the category of sexual speech that they described caused any tangible harm other other than uh moral disapproval so it is a blatant exception to the general Viewpoint neutrality principle in 1973 the Supreme Court re-examined the obscenity exception the lower court had held that it should be struck down as uh unconstitutional that is a statute that was embodying the obscenity exception because of intervening pro-free speech decisions between 1956 and 1973 and by a five to four vote uh the Supreme Court barely upheld the obscenity exception and it has never Revisited that exception since that uh the overwhelming consensus of Scholars um is that it's completely discordant with free speech jurisprudence in general but the the the three-part test you know is that's based completely on the content of the expression uh it is and all three of them has to be satisfied number one the expression has to to appeal to a prurient interest in sex and by the way if you don't know what that is uh the Supreme Court defined that as a uh morbid and sick interest in sex as opposed to a normal and healthy one point just imagine yourself as a jury deciding how you're going to implement this in a particular situation number two and this is what the questioner referred to but it's one of three elements it has to be patently offensive depiction of uh of of sexual activities or organs patently offensive uh in the particular community and number three it has to lack serious literary artistic political and scientific value well there's no surprise that people tend not to remember that long-winded definition what they do remember is the famous paraphrased by Justice Potter Stewart okay you want to say it with me Weidner I cannot Define it but I know when I see it right which is and he was saying it straightforwardly now we say that mockingly but that could not better capture the complete subjectivity I know when I see it but each of us sees a different it and the fact that we have this completely you know second-class category of of sexual expression in an otherwise very speech protective jurisprudence and by the way we're the opposite of much of the rest of the world in this regard where we strongly protect hate speech in the other Western European Canada and so forth democracies uh do not they laugh at us when it comes to our allowing to the government to restrict sexual speech and some people say that goes back to America's puritanical Heritage but you know it's not really a laughing matter because that is a obscenity laws have been hauled out to uh to Target predictably sexual expression of minorities uh and some of the reasons prosecutions have been against lgbtq depictions against feminist depictions I remember in the 90s against depictions of interracial sex and and you know it's it's true of any standard so-called standard that gives latitude toward the government it is predictably going to be used against the marginalized and can I illustrate that and I mean all of these questions are so interesting I should probably self-censor okay I'm going to make one more point please do no you know my friend Kathleen Sullivan who was the first female dean of the Stanford law school great first amendment expert when she would explain the obscenity exception to her students she said you know think about these first two elements um that it has to appeal to the uh prurient interest in sex um and well that means a way of paraphrasing that is it turns you on right um and number two it has to be patently offensive well that means it grosses you out well how can the same material turn you on and gross you out and the answer is that it's a minority within the community say lgbtq expression that turns on members of that Community but it grosses out members of the majority who are represented by the police the prosecutor the judge the jury and I thought you know that really so well captured a problem inherent in any discretionary speech restrictive standard thank you we have a question from one viewer um who does civil rights activism in Brazil and they were talking about how Brazil especially during the last elections uh the government has used censorship especially by judicial organs to become kind of an election tampering tool um do you think that kind of through through fake news Avenues and so this viewer is asking do you believe that the best counter to false news claims is Free Speech rather than the censorship of those objectively false claims so uh excellent question is these all are uh again U.S law draws what I think is the appropriate distinction between law lies that are punishable and those that are not um so there when lies directly or imminently cause specific definable harm they can and should be punished and let me mention some I think I already mentioned one example which is perjury when you lie in a Judicial proceeding of legal proceeding and undermine the cause of Justice another example is defamation when you lie about somebody and harm that person's reputation that can be punished but if it's a lie about a public official or public figure as is fairly well known this is again a situation like intentional infliction of emotional distress when the speech is about public issues the court says well the LIE can do harm but even more harm is done in the self-censorship that would occur if you feel you think you're telling the truth but you're not positive you don't want to face the possibility of punishment so even in defamation in some cases it's it's it's quite protected good um uh so but when you've used general terms um such as disinformation or fake news or a broader looser definition of false or misleading speech that gets to be very problematic for the same reason that such loose terms as as hate speech um or offensive speech are a little bit problematic because ironically they I mean you can't imagine somebody like a bolsonaro enforcing that standard of course it's going to be hit what you think if he's child his opponents will think he's telling a lie but he'll think uh and members of his government think that it's the opponents and the dissenters and the opposition party that's telling the lies so it's a very dangerous tool to give to government officials and and by the way I would say that regardless of who the government official is um just look at you know we've had two presidents with the coveted pandemic and um each one of them and their members of their Administration and various agencies have had a shifting range of views about what is true and false and fake news and disinformation about everything from masks to vaccines to school closures and you know most of this is not a matter Widener you know you you said something about you know a false allegation or you use a fairly black and white term most of what we are concerned about is not a single discrete verifiable or falsifiable matter of fact it's a matter of analysis and interpretation and perspectives and opinion ends and as the Supreme Court has said there's no such thing as a false idea on and and the only way to pursue scientific truth certainly in the health field uh but I would also say the only way to pursue appropriate public policy in a democracy where we the people are sovereign is through just letting it all out letting it be debated letting it be examined Let It Be refuted and again there are studies that suggest that you know when you try to censor something it simply draws more attention to it you're trying to suppress the lie but instead you end up getting it more attention and more credibility and you know more fodder for conspiracy theorists than if you refute it on its demerits we have another question kind of returning back to social media um someone asked should online media platforms continue to be immunized from legal responsibility for their content why or why not so essentially about section 230 should it be repealed exactly uh so to be very clear about it uh section 230 uh uh uh provides immunity not for anything on the platform but just for anything on the platform that is posted by a third party so if the social media because there was uh an intent and by the way this was um enacted with very broad bipartisan support uh and it's still the writers the Republican and Democrat who were the co-authors the chief sponsors um still support it by the way and going back to your earlier question Widener they oppose liability based on algorithms and they say that was consistent with their intent which I found kind of interesting as well but if you go beyond just neutrally oh so the intent was that uh platforms would not act as really strict Gatekeepers which they would have to do if they had liability for what third parties put on it they'd have to serve the same strict gatekeeping role as broadcast broadcasters or newspaper editors and that would defeat the new the value of the internet which for the first time gives all of us an opportunity potentially to speak to all the rest of us that's the beauty of this new medium but it would be nibbed in the bud if that kind of liability were placed on the platforms they simply most of them would have to host almost no third-party content at all so I think that was uh absolutely the correct decision as a policy matter and continues to be the law also says though that if the platform goes beyond serving simply as a conduit for other people's speech but are putting up messages of their own which I said if hypothetically they were choosing to amplify certain messages through algorithm then I think that could fairly be treated as their own speech right they're adding a message uh then they would be liable on under Section 230. I also want to say that even if section 230 were repealed there's a very strong argument that first amendment principles would also would still continue to immunize them uh the Supreme Court has had cases going back to as early as the 1950s in which they said that Distributors of free speech cannot be held liable for Content that they are simply Distributing this was in cases involving book sellers and Librarians again because they didn't want to give the disincentive you know you would have to have so many fewer books in the bookstore in the library if the Librarians or the booksellers were responsible for any defamatory or other illegal content because they simply don't have time to review every word on every page and that was based on the First Amendment that's an interesting point about even if section 230 is repealed you think there's a strong constitutional argument that Distributors would not be held liable for works that distribute thank you for sharing that we have a question also about social media um what do you think about Germany's new law aims to combat hate speech it guarantees the immediate removal of speech that is reported by users on social media platforms so I I guess a part of this question could be that request for removal is coming from outside the company itself and from outside government actors that could simply be seen as the voice of the people say we don't want this speech on this platform um do you see that as equally uh distasteful as straight out censorship see it as at least as problematic I mean just let's just think of all the speech on various campuses recently that students faculty members others have said we think that this should not be allowed we think that they should be punished we find this offensive we find this insulting we find it hateful I mean the examples again range completely across the political Spectrum I know in your own State I remember famously um just the word to t-r-u-m-p at Emory University chalked on the sidewalk was deemed to be hate speech so you can imagine somebody you had the power in Germany I'm sure there I know there are many Germans he's deeply unpopular there that would see anything of pro-trump or by Trump or about Trump as being hate speech um you know at the opposite end of the political Spectrum some of Trump's supporters including Rudolph Giuliani attacked black lives matter expression as hate speech these said it's you know hate speech against white people it's hate speech against police officers I'm sure there are people in Germany who share that perspective I have been many um you know demonstrations against racial minorities and refugees and immigrants there um so they would see black lives matter they would ask for that to be taken down I think that kind of regime is not going to allow anything to be up at all and think of the you know pretextual motives that people could have you don't like somebody what a good way to get at them call their speech hate speech get it taken down I mean to put the power of censorship in each one of us is truly frightening I think we should have the power of self-censorship right we should restrain ourselves voluntarily in what we say even the fact that something may we may have a right to say it doesn't mean that it is right to say it so that kind of self-censorship I support and also self-censorship in so far as free speech is not only the right to convey information and ideas it's also the right to receive them we engage in self-censorship and choosing not to look at certain things you know you don't like it nobody's forcing you to look at it and let me tell you that there have been so many complaints from people in Germany including um opposition members of of of the political um system and uh feminists and artists and human rights activists who have complained bitterly about how dangerous this law is to all of their concerns I like that you brought up the illustration of the black lives matter activism that was an example in your book that I particularly stuck out to me in illustrating one of your points you gave the example of the black lives matter movement and advocating for racial Justice being construed as hate speech against Whites by some white individuals and that speech was in turn deemed hate speech by BLM activists so to me that kind of drug idea of the kind of the relative nature of hate so I thought that was a very interesting example thank you uh we have another question in a culture that increasingly advocates for the view that speech is equal to violence when does the incitement to imminent violence exceptions swallow the rule in other words when does our freedom of speech succumb to the notion that speech is harmful and how do we avoid this we avoid it by uh insisting that there be that tight and direct connection between speech and violence in order to justify uh suppressing the speech so you know it's not a scientific it's not no no language is never completely precise there is always some discretion and some disagreement among reasonable people as to whether the standard is satisfied in particular circumstances but there is no doubt that the um they test the intentional incitement tests which we lawyers call the Brandenburg test named after the Supreme Court case in which it was laid down no doubt that that test greatly constrains discretion uh Beyond how the bad tendency tests did right anything can satisfy the bad tendency test but the fact that you have to show number one you have to show all of the elements number one that the speaker intended to incite and the Supreme Court in the decision explains that Insight is different from Advocate the Supreme Court expressly says in Brandenburg you may Advocate violence you may Advocate lawlessness but you may not incite too and intentionally in sight so those are two limited criteria to imminent Lawless or violent conduct and it is likely to happen imminently um this is a such a much more demanding test than what most Advocates of suppressing hate speech want how often do we hear that intent doesn't matter it's only the impact uh this gets back to the point about emotional distress um Widener I think you know so many students now are saying it doesn't matter that a teacher a professor who used a racial slur because it was you know is reading from a speech by Martin Luther King or Frederick Douglass who clearly were using it in an anti-racist way it doesn't matter you know the effect is still so traumatizing and so upsetting by the way I will I'm happy to accept I'm sad that it is traumatizing and upsetting I'm happy to accept that it is uh but I still that's not a justification for sensory and getting back to that uh that earlier question so let me give you an example of where um reasonable people have disagreed about whether the Brandenburg test can be satisfied and that's Donald Trump's speeches on January 6. and you know the devil is in the details I think all of the facts are not yet in it's a very you know all of these tests really depend on all the facts and circumstances um Trump made certain statements that were very incendiary and so some experts think well that's and I don't remember the exact words now some of you will um but he also was very careful at the end of his speech to say something like go in peace or BP use the word p and many others think that that will be enough to uh exonerate him from satisfying the Brandenburg test um thank you for for clarifying that and that's a very Vivid example so I appreciate you using it we have another question about a publication by Stanford so the attendee asked late last year Stanford had published the elimination of harmful language initiative with the goal of promoting inclusivity this site has since been taken down due to backlash colleges often advertise diverse and inclusive communities first do you see initiatives like this being increasingly popular moving forward and second how do college campuses promote inclusive slash supportive environments while abiding by First Amendment rights can you tell me that I missed one word in the last part of that sentence how do colleges promote inclusive oh environments I think it was environments right uh uh so I I had to take the last part of the excellent question first uh I think that the goal of diversity Equity inclusivity these are wonderful goals they have often been too narrowly defined in my opinion and not appropriately implemented in my opinion yeah so I think you know we've got to step first of all let's agree on a comprehensive definition and secondly let's discuss what are appropriate means for implementing that concept I think what the the way in which this concept has been too narrow and defined is that it seems to have focused um virtually exclusively on diversity equality and inclusivity with respect to I identity who you are in terms of various demographic pigeonholes that Society has has created race religion ethnicity immigrant status gender sexual orientation and so forth on gender identity and those are all very important and no doubt that no matter who you are on any Vector that anybody can come up with you are equally entitled to be welcomed you know not just tolerated but a welcomed embraced as a as a vibrant participating empowered member of the community um that's my overall goal to me that's what human rights are are and civil liberties are all about um and I'm not going to say but and you should be robustly welcomed included and I have a sense of belonging and participation no matter what you believe either as a matter of religious beliefs non-religious beliefs secular beliefs political beliefs you name it and sadly it seems that you know you look at I look at the incident that happened at Stanford law school just a couple of days ago and it seems to me that in the alleged name of diversity and inclusivity um students who were members of the Federalist Society they and other students who wanted to hear a very important federal court judge speak um and uh dean of the law school who belatedly but did ultimately stand up for their free speech rights all of the above were subject back to being treated in the opposite of an inclusive way and as having nothing to do and not respecting the diversity of their beliefs and of their views and of their perspectives and of their interests uh they were subjected to extremely hostile language hateful language shaming language including language about their alleged sexual proclivities uh vulgar language and you know me to um to sort of walk a gauntlet of Shame so to me diversity and inclusivity has to extend to all ideas and beliefs as well as to all identities and that kind of folds into another part of the question which is how can we have an inclusive campus and Free Speech we can't have an inclusive camp campus without free speech for first of all it's not inclusive if it's excluding people who say certain things who you know believe certain things again let me come back to the sensible limits that exist within Free Speech itself another example I'm sorry I didn't cite this earlier so give me uh thank you for giving me an opportunity another example of speech that can and should be punished consistent with strict scrutiny emergency principle uh is harassment targeted harassment uh if you are speaking to an individual or small group of individuals and you say something that is personally insulting or that intrudes on that person's sense of space uh and and privacy that's harassment or bullying and that should that should not be protected ironically in this situation in Stanford I think if anything that the conservative students uh were the ones who were subject to harassment now notice the difference right the claim on the part of students who were objecting uh and trying to suppress the speaker was that they disagreed with his ideas not that he was saying anything that was personally targeted at them and personally harming them in any way the harm that they claimed was his ideas that could lead to policies that could have a harmful impact I think I agree with that analysis that that's certainly a possible harm but if we were to allow again if we go down that road then I guess judges wouldn't be writing in opinions at all it sounds an awful lot like the the bad tendency test to bring It full circle we had one question I thought was um especially interesting that was submitted before the webinar um is the Supreme Court case shank versus the United States established that freedom of speech is more susceptible to limitations during wartime as the U.S potentially approaches military conflict with China do you anticipate that freedom of speech could be threatened in the coming years if so do you think this is a fair application of the clear and present danger standard excellent question uh the shank case was decided in 1919 when the Supreme Court had just begun to interpret and enforce the First Amendment it has never been overturned so as we lawyers say it is still good law I mean it's never been expressly overturned but it is deeply inconsistent with many many cases that came subsequently certainly including the Brandenburg case that I've already referred to so that means that uh every statement in that case including the suggestion that Free Speech could be curtailed in Wartime more than it can in peace time that's subject to re-examination in light of leader precedence that said again every time the United States has been in a situation of actual or feared National Security civil liberties including Free Speech have taken a very big hit you know to uphold the internment of Japanese Americans um uh in World War II the suspension of habeas corpus and the Civil War the suppression of dissenters during all Wars including that certainly the Vietnam war that was a major issue and even in the wake of the 9 11 terrorist attacks there have been such severe cutbacks on civil liberties why because the Supreme Court although it pays lip service to the same rights protective strict scrutiny standard is much more deferential toward the government in holding that the government actually has shown that the Restriction is necessary to promote the war effort to promote security and so forth in fact one of the few Supreme Court decisions on First Amendment issues where I think the court clearly under protected speech recently was a 9 11 case in which the court upheld a very broadly worded concept of material support to terrorism as extending even to humanitarian assistance to groups any group that had been designated a terrorist organization by the state department even if they had some completely humanitarian efforts such as providing relief to um to orphans and and widows in in war situations so once there is a state of National Emergency whether it's a declared war or not the Supreme Court tends to really just accept assertions by the executive branch of government and by the military thank you one other question relating back to speech on Public public campuses public colleges um that was brought up was while public universities are required to uphold Viewpoint neutral protections regarding speech on campus what constitutional responsibility if any do those colleges have to provide a forum for that speech in the first place like bulletin boards or demonstration areas and then a second part of the question is what what restrictions can a public university place on those areas for example the University of Georgia if you're going to post flyers and designated flyer areas requires that you submit the Flyers to be approved and then that those buyers must bear the name of a UGA student organization which also in order to become an organization there are certain statements you have to put into your your contract uh or your your Articles of Incorporation so to speak for the club so I'm curious to hear your thoughts on opportunities for free expression at public universities and then what restrictions those universities in place those are great questions I will answer fairly briefly but I want whoever asked the question or was ever interested in it please go to the website of fire uh the foundation for individual rights and expression which until recently was the foundation for individual rights and education which is still the great specialty of fire and there is no one who has litigated more cases and done reviewed more campus policies and and he knows more about the the details of these issues and I assume that on its website you can find you know really detailed chapter and verse of examples of restrictions regulations that are permissible and those that are not permissible including case law involving other universities maybe even involving your University um but basically uh in if we're talking about other arms of the government and the University of Georgia certainly is an arm of the government there is what the courts have called traditional public forums areas that have traditionally been held open for free speech the streets the parks and the sidewalks a campus has analogous areas certainly including some any open mall area any sidewalk anything that is not you know that is conducive to people um standing on a soapbox or you know holding a meeting that's we're not talking about a classroom building or the area immediately in front of a classroom building where you might block people going in and out so the courts have treated those areas of Campus as analogous to traditional public forums and said that they have to continue to be held to open and a Viewpoint non-discriminatory way to expression as to the bulletin boards I don't know what the case law is there but let me say that even if something has a traditionally been oh so I mean the question was a really good one it was does the University have to create that kind of opportunity for speaking in the first place dear I don't know the answer and I assume there's been some litigation and if there has you can find it on Fire's website uh once the university does however choose to open some additional areas beyond the traditional public forums including let's say you know bulletin boards once it chooses to do that that's called a designated public forum and once it chooses to do that it is still Bound by the same speech protective rules that govern a traditional public forum and cannot restrict based on Viewpoint right so it doesn't have to open it in the first place but once it chooses to do so it has to be Viewpoint neutral in both a traditional public forum and a designated public forum government including the university May impose what are called content neutral time place and manner role so again they're not discriminating based on what you say but they can impose limits on um when where and how you say it right so there's only limited space available and the plaza maybe you have to get a permit to make sure that there are you know 10 demonstrations trying to go on at the same time that wouldn't work or there's only limited space in a bulletin board so maybe you know if your event is a year in the future you don't get priority in somebody whose event has already happened doesn't get priorities so you know sensible rules to make sure that this limited space is allocated fairly um are permissible the devil is in the details you know in a room such as do you have to have a university sponsor um I I again I'm sure there's there's been a lot of litigation and I commend you again to to fire but those are I've given you the general overarching principles well thank you thank you those principles uh are appreciated um we're coming in close on seven o'clock so this will be our last question then it's kind of a nice time tying everything together a question that was submitted um the question is what struggles do you anticipate this generation uh to face in terms of free speech maybe to add on top of that what tangibly can individuals do maybe especially on college campuses to ensure that these rights remain in Shrine or remain enshrined in practice you are facing enormously precedented challenges in terms of the power of private sector entities to suppress Free Speech the first amendment I think I didn't even get a chance to say this expressly it's a point that uh most people don't know that the first amendment's free speech guarantees only apply to the government and to government officials and entities including the public universities such as the one you're so fortunate to attend um so if a government official tries to violate Free Speech rights we have a remedy under the First Amendment but if a private sector individual or entity restricts speech there is no First Amendment remedy which makes it much harder to deal with the problem and we are now facing unprecedented pressures from two types of private sector forces one are you know for lack of a better term I'll say Twitter mobs you know they cancel culture peer pressure which at to some extent is counter speech which is protected but when it becomes disproportionately harsh and exerts a disproportionately silencing impact as every survey indicates is occurring on campuses among other places all over the country that is very worrisome when people are not daring to express their views on important issues not daring to address certain important issues at all for fear that they are going to be shamed and shunned and ostracized and and demonized that is a very Troublesome issue that cannot be solved by bringing a First Amendment lawsuit than as has already been alluded to we have these incredibly powerful Tech Giants that have unfettered power yes it's wonderful that they are encouraged to let all of us speak but they're not required to section 230 has another provision that's not discussed nearly as much as the one that we were talking about which also immunizes them from engaging in any so-called content moderation they want which means um as Twitter put it quite expressly but it is a good summary of the state of the law for everybody we can kick anybody off at any time for any reason or no reason and that is not that is a right that they have uh as a part of their own First Amendment rights that's extremely Troublesome has very adverse implications for all of us um when even you know the president of the United States as he then was could be kicked off Twitter uh and Facebook that is it seems that the power that used to reside only in the government is now shifting over you know government used to censor uh corporations now we have corporations and companies that are censoring government officials there's no First Amendment remedy for that uh so so these and then let me add one other complication to that which is uh we have a lot of evidence now including through the Twitter files and some Congressional hearings about it last week uh that indicate that there's a great deal of government pressure on the social media companies and a great deal of government collusion and collaboration with the social social media companies pressuring them to take down certain speakers and certain alleged disinformation and certain alleged hate speech and that's very problematic the government can't be delegating its power doing an end run around the first amendment by having ostensibly private sector actors that are really acting at its behest these are unprecedented problems that uh I really am so grateful that all of you with all of your intelligence and commitment and your great education um are are committed to helping us surmount and you can and should and are starting already on campus by most importantly being aware of what Free Speech principles are what the Rights and Wrongs are so that you are in a position to refute and rebut those who demonize the Free Speech because they don't understand what an important essential power for good it has been however you define good however you define what's in the public interest you need free speech in order to advance that and the power to create a free speech culture instead of a cancel culture is largely in your hands or should I say in your mouths and in your voices I mean it's very very important that the leaders on your campus strongly enforce Free Speech principles adopt something like the chicago-free speech principles and enforce them them if somebody violates them to discipline the Violator but top-down leadership is not enough culture all always depends on coming from the Grassroots up as well and every survey shows that students who are unduly self-censoring are doing so not because they're afraid of what their faculty members are going to do but because they're fearful of what their peers their fellow students are going to do so you have to start becoming the peers that will defend to the death the right to say even ideas you strongly disagree with because you understand that that is essential for your own free speech it's essential for diversity equality and inclusivity in the full sense of those words and it's also essential for the future of our democracy so thank you for for doing it well Professor thank you so much for your time tonight and the Nuance you brought to this conversation um I really appreciate it I also want to thank the AHA foundation and kerasia of the AHA foundation for all they have done to make this event possible as well as the University of Georgia honors student council a recording of this video will be posted at the AHA foundation's website um within a few days so thank you all so much for tuning in and Professor strawson thank you so much for your time thank you Wagner and everybody

Channel: AHA Foundation

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Length: 92min 17sec (5537 seconds)

Published: Fri Mar 24 2023