Transcripts For CSPAN2 Cato Institute Discussion On First Amendment 20240712

Supreme Court Nominee judge amy coney barrett. Good afternoon. Good morning. Welcome to the virtual Cato Institute. Im the director of Robert E Lee Center for constitutional studies and author of the new book, supreme disorder judicial nominations and politics of americas highest court and related to that, im glad everyone taking a break from the barrett confirmation hearings this morning. If you didnt watch, i envy you. There was nothing new, republicans and democrats placed their assigned roles but we are not here to talk about that. We are talking about something more interesting, the Roberts Court. More than any other Supreme Court justice in recent history, john roberts has played a defining role in shaping our free speech block. Hes been more than twice as many majority opinions in this area than any of his colleagues and there is a certain result in 95 of the greek expression cases decided in his tenure, hes been in the majority. Hes taken the lead of nearly 80 of the time so theres Something Special about this, something that speaks to how john roberts sees the court. The first conference of report the roberts report, collins and hudson, each of whom is published more than ten books on free speech examined 56 cases handed down by Roberts Court from 2005 to 2020. He offers i open details looks at the cases and justices different approaches. Here to tell us about it are the office. Scholar at the University Washington school of law book editor and david hudson who serves as a Justice Robert Legal Foundation for individual rights in education and First Amendment fellow for the freedom form institute providing commentary on this Important Research larissa and bob revere. Professor of law at the university of Missouri School of law were the focus of her research in teaching is intersection of tort law and emphasis on free speech issues and social media. A partner at davis wright where he specializes in media, communications and Technology Law and a scholar at cato in which hes been my lawyer so i will turn over to don and then david to explain their studies. Thank you. What a delight it is to be here. I very much appreciate it. I would like to thank you for submitting, it is an honor. I am retired from the University Washington, i want to make sure that is in the record. When all subsequent cases, john roberts has written, one thing is undoubtedly concerned, dressed prudent, i mean speech and press. This is an area of particular interest. I am probably the most aggressive defender of the First Amendment. John roberts in a 2019 interview with former attorney general Alberto Gonzales is dean, im probably the most aggressive defender of the First Amendment and certainly on the case has been. They are so significant, some of the numbers, i will read this. Hes been the majority, 95 of the times in the 56 freespeech opinions in his tenure. 95 of the time. That means 95 of the time, the john roberts the First Amendment for opinions. The lead opinion to himself, almost 30 of the time, which itself is remarkable. Hes offered twice as many opinions and any of his colleagues. Moreover, hes been more majority opinions, john roberts one person has written more majority opinions when it comes to free speech and the total justice letter and spirit kegger combined. If you combine all of the majority opinions, there are still fewer than john roberts is. His total majority opinions number are the same as justices scalia, thomas, so if you combine them, their majority opinions, no greater in number than chief justice. While Justice Kennedy has often been seen as the. Man when it comes to First Amendment cases, during his tenure, john roberts offered twice majority opinions than Justice Kennedy so how is this with the record . You have to freak speech cases and 20 of the cases, 20 of the cases he participated in wheres roberts has done so in over 55 of cases that has come before him. Notwithstanding this area. Significantly, and mcculloch, hudson, they want to touch on this, the two most important opinions from the roberts course are Citizens United, decided in 2010, Justice Kennedy and the town of gilbert decided in 2015, content based for the analysis base, the two important opinion has been united. In terms of the liberal wing during her entire tenure on the court, Justice Kagan has had one majority opinion and Justice Breyer is in the 23 . From the gross which points when it comes to Campaign Financing cases and union free speech cases by the major, but robert is doing is recognizing First Amendment and they take exception to the fact that cases decided by the roberts course had been campaigned finance cases. In terms of this, theres a lot of talk about prudence particularly given the contributions to that by Justice Scalia and we are all originalists in one way or another today. That may be true in that text but its certainly not true in the Roberts Court. For all his discussions. In no free speech case has Justice Scalia ever go into extended discussions over the doors prudence. Once in the case, he did talk about that. But in terms of justice thomas, apart from concurrent student speech case and discussion in another case, brown versus entertainment, some discussion about intentional threats, he hasnt written very much in thought. He did write denial in 2019, New York Times decided. He may have a lot of originalists on the court but in terms of this, there is extended discussions here. I want to mention a couple of things before we go on, the First Amendment is more than what judges right and what professors go on about, it is loyal. Its important to keep in mind there like james bob, the ones who keep these when it comes to the litigation and a new face think that we will see a lot more of, kristen, you may know the name. A petition before the court, she also has another in this case so keep your eyes on those with the First Amendment in terms of Supreme Court litigation. Im happy to turn it over to my colleague now. So much for the opportunity to look on this product with you. Many thanks to cato. I want to talk about three things when it comes to in the First Amendment. Category, context and content. Those are all important in First Amendment methodology. The first. Is category. One way we determine whether speech is protected by the First Amendment is to determine whether its an unprotected category of speech. For example, u. S. Supreme court recognizes obscenities set in 1957 and the u. S. I didnt recognize action in brandenburg versus ohio 1969. These unprotected categories of speech leading to a society that protects freedom of expression. One of the hallmarks of the roberts support then it really nice unprotected categories of speech. The roberts course done this four times. It can in the u. S. Versus stephen, the u. S. Supreme court refused to recognize unprotected categories of images of animal cruelty. In 2011, the association versus brown, u. S. Supreme court refused to socalled violent video games. In 2012, the u. S. Supreme court refused to nice a new and unprotected category of protests by the Baptist Church and in 2012 as well, u. S. Versus alvarez, the u. S. Supreme court refused to recognize the new and unprotected category for purely false speech. Turning to context, context also matters specifically context, im referring to the status of speaker. It is a reality of modern versus Government Law the government has greater power to restrict speech when his employer, educator or mentor and chief. If youre a public employee, Public School student, a prisoner or member of the military, you have less freespeech rights than you would in general society. In this front, the Roberts Court has not been terribly protected of free speech so for example, in 2006, the u. S. Supreme court took a narrow of the First Amendment rights, something far less than what Justice Marshall took in 1974. In 2006, the u. S. Supreme court decided garcetti, the decision in which the u. S. Supreme court like a five before ruling, ruled when Public Employees speak, the constitution does not insulate them from discipline and they have no First Amendment protection. It doesnt matter how important speech is, it doesnt matter if the employee whistleblower. If the employees engage job duties speech, they have no First Amendment. In 2007, the Roberts Court by a five to four vote, failed to recognize detroits Public School students in morse versus frederick. Joseph broderick and several others held an eight by 14 although they were off campus, the limbic torch relays was in alaska so in context, its been differential schools and employers and certainly to prisons. In regard to content, probably so the chief methodological tool we have in First Amendment jurisprudence, the content discrimination is about. Probably expressed tellingly by Justice Marshall in Chicago Police department versus mostly in 1972. When he wrote above all else, First Amendment means the government may not restrict speech because of its message, ideas, subject matter content. For better or for worse, the content determination principle is the chief tool of what he said in 1994, no better alternative than that. In 2015, the Roberts Court decided was one of the most important First Amendment decisions in recent memory, versus town of gilbert. In arizona, they provide a very different treatment with her assigned was an ideological side, Political Science or temporary durational sign. Both the Federal District and ninth u. S. Circuit court of appeals ruled this arizona ordinance was content neutral because the underlying purpose of the law was not to discriminate against content review points. When it goes up to the United States Supreme Court, the u. S. Supreme Court Unanimously reverses but they do so under very different rationales. Justice Clarence Thomas was the other of the majority opinion. What justice Clarence Thomas said is we have to take the crucial first step. If the law makes distinctions based on content, then it content based and is subject to scrutiny. Justice is cajun wrote a concurring in which he essentially said no, a lot of times something that may draw distinction, does not have an underlying purpose of this commission. Thank you. Thank you. Fascinating stuff. Ill remind the audience if you have questions, you can submit them on our webpage on facebook and youtube platforms using cato. Ill turn it over to zelensky. I want to thank the Cato Institute for letting me speaker and my focus as a scholar has been on the media both you and new media so my remarks today will be focused on the Roberts Court and what it has had a media. Justice, the digital revolution. Reporters, editors, photographers and we have a 20 2015. Meanwhile, tech giants have become media giants who control our access to most of the content we see or receive. One might think in the line of the digital revolution, its taken lots of new and old media to clarify freedom of the press, whats the meaning of the freedom of the press today and how does it relate rights . And in fact, we have the story of the dog that didnt bark. They had taken a lot of cases and they had taken those cases to the court. Defamation is always a big case, the media is always interested in. Over the last 15 years, the u. S. Supreme court hasnt really done anything in those areas, or any of the other issues that the media are most interested in. With the cases they have taken, it is actually very little. Versus Fox Television stations, the Supreme Court had the opportunity to tell us whether fec can regulate broadcast decency still under the First Amendment, under all the president s from the Supreme Court said broadcast media, the pervasiveness, because of the scarcity of the airway and that line of reasoning broadcast media are different, its been challenged today when oftentimes cant tell what is broadcast over the airwaves or what they are getting the internet because it all comes through the same platform so the differential treatment of broadcast media seems to call out for potentially a new approach but the Supreme Court sidestepped the issue on a narrow issue of statutory construction we dont know if the First Amendment still entry broadcasters differently in terms of allowing content regulation didnt allow in other media. The Supreme Court just to up the case that will be interesting about broadcast media called National Association of broadcasters, National Association of broadcasters versus radial project. That case will address was known as cross ownership rule that prohibits a newspaper and broadcaster ownership of the media in the same market, designed to make sure there is a diversity of different voices and few peons viewpoints in the marketplace of ideas by restricting media and newspaper cross ownership. The Supreme Court in the case basically did not just scaremongering about news media and the dangers of the news media and the taking over the minds of our youth so the Supreme Court says theres no evidence that interactive violent video games are any different than news media that have come before and california cant restrict them from minors in the ways they were attempting to do. The only other case dealing with the media are not very instructive. There is one in which the court rack ignites is that all of us use social media is a public forum to get our views out which is true and useful but theres no telling what that might mean for future cases and in another case involving threats made over facebook, threats made over social media again the Supreme Court sidestepped the opportunity to tell us whether the facts as they occurred on social media change the First Amendment analysis in any consistent way and so really they have every turn have either avoided or sidestepped the opportunity to tell us Something Interesting about old media rights and new media rights in the last 15 years. Now, what is the Court Interested in . Obviously as you said previously the court is interested in First Amendment cases. They just arent that interested in media cases. They are interested in free speech cases as they affect the electoral process and in those cases they tried to set out very concretely a few key principles. They set out concrete issues that government limit our political spending or limit political speech and perhaps most famously they did that in Citizens United. Theres a whole line of cases enunciating this principle that limits political spending or womens political speech and the other principle that comes through absolutely clearly in the decision is that government may not put limits on speech in order to level the Playing Field between the speech of rich and poor speakers. And again these are the principles that the Roberts Court seems most interested in and they have little to do with the media but there are some other cases that do establish precedence that really do benefit from unions. One of those principles that the Roberts Court has upheld is protection for unpopular speakers and so they have given broad free speech protection to funeral protesters about an unpopular speakers you could possibly imagine and then they have given broad protections to people who lie back about receiving a constitutional medal of honor so really its a speech that doesnt call out to us that it strikes us as having much value that the court has said that those types of unpopular speakers and unpopular speech deserve broad protection. I think that suggests that calls we are getting for regulation for example are going to fall on deaf ears in the Supreme Court because the Supreme Court is rightly going to trust each of us to decide whats true and what is false and what media we consume. So a lot of a fair in the marketplace and ideas stand of First Amendment grassroots is very strong and that stands to benefit the media. The other thing the court has done is they have given a broad definition of what counts as a matter of public concern. So for example in their funeral protest cases they believe that the speakers protesting those funerals of servicemen were conveying a message of public concern about the link between military policy and the governments toleration of homosexuality. Thats a quite broad definition of public concern and that ends up being that kind of definition thats going to benefit all speakers but also media speakers. And then another principle in the media is the refusal to curtail First Amendment rights of new media speakers based on fear of new technology and we party talked about brown versus entertainment case where they are not afraid of violent video games and indeed Justice Scalia and what i thought was a lovely rhetorical compared to violent video games to grimms fairytales and basically says children can stand a bit of violence. They have ever since grimms fairytales. Now that said even though the freespeech precedent from the Roberts Court really rebounds to the benefit of the media i have to point out that there is an alarming Roberts Court cases that suggests the Roberts Court unlike its benefactors really doesnt believe that media played a special role in our democracy. So most famously there is Citizens United that described media corporations as elitist and yielding political power and influence disproportionate to their public support as being answerable to their corporate overlord and saying concretely that they are no more deserving of special protections than any other corporation is. So in other words media corporations and walmart are the same in the Roberts Courts eye. Compound that with justice thomass skepticism about whether the media need special protections from defamation that he has expressed in saying the news york times case should be overturned and it creates an alarming Playing Field for media actors that might want to litigate cases on the Supreme Court. The other piece of this is. We welcome back to you on this but lets go to ilya for his comments. Okay. Thanks cato for asking me to participate in this. Im particularly happy to be able to speak on the rendezvous its paper because it really does come at a particularly important time. The Roberts Court has from the beginning generated quite a bit of comment on its First Amendment jurisprudence and i think appropriately so. This report provides hard numbers by which you can evaluate that. I have to say for those of us who knew john roberts in private practice we didnt necessarily see it coming. Not that we doubted that might happen and that he might show a special interest in a First Amendment praise the private practice lawyer its not the sort of thing you would necessarily talk about and ive worked on several First Amendment cases when we were partners including when he played the role of chief Justice Rehnquist in helping me prepare for an oral argument in United States versus playboy entertainment group. I guess as appropriate for anyone who aspires to be on the court you may be there some day he didnt go out of his way to express his personal views on the First Amendment but fortunately weve been the beneficiary of that since hes been on the court. I think there have been a number of commentators like derfuss or joel gore who described it as the strongest First Amendment court in history. Obviously not everybody agrees and adds polarized the nature of our times. And you can sort of look at the areas in which there have been cases of First Amendment rights where commentators have disagreed and it does reflect that playbook polarity. Ron collins mentioned a few of them are earlier on. The Campaign Speech for example where there are strong First Amendment opinions that establish really usual principles as First Amendment litigators we find to be used in many other contexts in cases involving the union and the Government Employee speech cases that are somewhat more ambiguous in that regard but nonetheless they are areas that have sparked that kind of extremism. One of the criticisms of the robber court have been that it is result oriented. Now there is some irony in that because typically people complain about it are mostly upset because they thought the court reached the wrong result so it begs the question of who is result oriented. In fact one prominent First Amendment Supreme Court watcher who i think should know better has criticized the Roberts Court record in First Amendment cases saying it shows a strong record of First Amendment cases and in those cases are quote fringe are unimportant and nokia to those in minutes so to condemn the masses real agenda of supporting campaignfinance laws and things like that. Think thats a particularly shortsighted view of the Roberts Court because those cases described as the french are unimportant cases i think are part of what will be the Roberts Court strongest legacy in the First Amendment area. Both ron and david talked about those cases in which the court has refused to create new categories of unprotected speech, cases like the categories including biting words of sanity defamation speech integral to criminal activity, child pornography. Those limited categories that are specifically defined as limited for which the court has said its not going to create new categories. Now its particularly remarkable that it has done so in those areas because those are the cases in which you would not immediately think of the speech as being particularly important about getting a medal of honor, violent video games and the westboro Baptist Church creating a nuisance at the funerals of servicemen crush videos. All of those seem to be areas where its not the kind of speech that is going to elevate the public and yet those are the cases in which a hearing to and reaffirming First Amendment principles are more difficult and most important because its going to choose the principles in those cases than they will stand the test of time and its in those cases in which those of us in the First Amendment Advocacy Community have the most concerns going in that the court might not uphold the First Amendment plan simply because the speech was so repelling and seemingly unimportant. Now i do have to say critics of the Roberts Court do have their good points and make strong criticisms in certain areas. Berkeley law school has criticized the Roberts Court court in i think is done so for very good reasons where he points to certain cases like humanitarian law projects and being able to prohibit Material Support to organizations and chairs to organizations at the governments discretion and frederick which involves garcetti versus ballot which is Public Employment and a more recent one that im not sure he had read too much also involves this category where the court held that where you have probable cause to arrest someone that cuts off their bill would be to bring her First Amendment retaliation claim are all areas in which i think the Roberts Court didnt look as strongly at the First Amendment arguments as i think they might have come a areas where i think there could be improvement on the court but by and large when you compare that to the Overall Record of the court i think its a very strong one. Speaking by the way of the exceptions to the First Amendment and the fact that the courts uphold them and i want to raise one point of criticism and this is something that ron and i have talked about in the past where he provides a link and says there are just five categories of the First Amendment, there are 48 exceptions and i think you get to that expanded number on the ap account every crime that could be committed by use of award as a separate exception. I think they fall under the umbrella of speech and criminal tiffany so speech and blackmail or speech with some other crime like trafficking and prostitution but all of those areas where if you, if the speech and action are combined in a single element you can create that exception that they are all not separate exceptions based on the crimes. Finally and again overall i agree with the premise of the report that is a very strong court on the First Amendment law. I think there are certain lapses beyond those specific cases and i mentioned i think they are worth pointing out. One is the Roberts Court has treated the concept of strict First Amendment scrutiny for the longest time. If the law was being subjected to scrutiny it was going to be struck down. It was direct in principle and fail in fact and that concept has been diminished somewhat under some of the Roberts Courts opinions so for example under holder versus the humanitarian law project the court did find that it was the contextbased scrutiny but nevertheless withheld it. But think in the process of watering down the process of scrutiny it did the same things in williams and lee in the restrictions and the ability to engage in Campaign Advertising by candidates for the judiciary in florida. So there are areas where i think the court could have taken a stronger First Amendment position and finally the last point is that there areas where the court has not taking cases a get miced up well have entertained petitions for search that were filed generally in the area of student speech, student speech rights controversial speech and of course there have been no cases for a long time for press rights in general. Overall i think the court has been strong on the First Amendment and i credit for bringing that to light and look forward to the rest of the discussion. Thanks for that but im going to let ron and david respond to which they just heard and also throw in a comparison to a study done by First Amendment scholar Eugene Volokh on the Rehnquist Court and he looked at 1994 to 2002 where there wasnt any turnover on the Court Composition and found that the top three justices on these issues were kennedy, thomas and souter so middle, right and left, kind of a nature sting finding. We have a lot of questions and i know we are going to get get to the mall so thank you very much. More questions feel free to submit them kato scotus. Ron and david before we open it up to the crowd. Senate just a quick point Justice Souter during his tenure in the Roberts Court to distinguish from the Rehnquist Court never offered a single majority opinion. Just a couple of things when you were talking about the First Amendment in the new technology i think a very important and i think the audience was to take note of this justice alidas concurrence in brown versus entertainment joined by the chief justice and let me. Two sentences from that but i think its very important. Chief Justice Roberts concurring considering the application of unchanging constitutional principles to new and rapidly evolving technology this court should proceed with questions. We should make every effort to understand the new technology and we should not dismiss the judgment of legislators who may be in a better position than we are to assess the implications of the new technology. I think thats very very important and the only other thing i would add on the court this term and elect day dave if he wants his trump versus the ninth amendment in the case involving president trumps tweets in a public forum so that cases currently before the court and we will see what they do at the but that ill turn it over to timothy has anything youd like to add. I wanted to agree with bob, there are certain areas that the Roberts Court has in the draft and i think one of those is how does reid versus the town dilbert square with the commercial speech doctrine and the secondary effects of doctrine. The commercial speech doctrine is something that the u. S. Supreme Court Created and it essentially gave commercial speech or pure advertising secondclass treatment in postamendment law. Whats interesting about this is justices comments in the current opinion in 1996 that i do not see a philosophical or historical justification for thwarting speech protection than noncommercial speech. And yet thomas wrote the majority opinion in. And the main opinion in. But yet there are still some dissonance between the commercial speech doctrine in. Because it be. The. Decision strictly there shouldnt be a commercial speech exception and bob knows all too well the secondary effect on the legal fiction that the Court Created and first introduced in 1976 and elevated it in 1976 to allow the flagrant suppression of oriented expression that is not obscene and under the secondary effects doctrine that allow courts to treat comp contentbased restrictions on oriented speech is contentneutral and reed and the secondary effect doctrine are in my opinion era can fire bowl irreconcilable but so far they say is reed does not affect the secondary effect doctrine could i agree with both ilya and bob that this court has been strong with regard to Campaign Finance and the reality is much Campaign Finance with reform legislation are a direct restriction on political speech and i also agree with bob that there are a lot of key First Amendment principles in these pages that can be used in a wide variety of other freespeech context. So i applaud the Roberts Court for its strong protection of clinical speech in that area. Great. Lets go to audience questions. Philip goldstein who writes that the court has kicked the can in the Masterpiece Cake shop versus the Colorado Civil Rights Commission and you mentioned Christopher Wagner argued that we dont want to get into the free exercise issues but as we all recognize the case is stronger if you can bring it up under freedom of speech rather than employment the. That doesnt give you as good of a judicial remedy for incidental or nonpurpose religious intrusion. How do you see the court ultimately ruling on whether one should be punished for creating the work of art to celebrate a samesex marriage or other similar potential conflicts between First Amendment antidiscrimination law and no for a win of cases on the docket this year bolton versus city of philadelphia which involves the city disqualifying its social services from the Foster Adoption Program because it wont send kids to samesex couples but there is a small freespeech aspect to it. It might end up blowing into something bigger about having to certify conditions and things like that so at the intersection of First Amendment and discrimination law. Two quick comments. Fiscally opinion i think its days are limited so i wouldnt put too much thought into that. And secondly speaking generally one group to look in the days to come is the conflict between claims of and claims of the colony will equality when it comes to. Religion clauses will find themselves in combat with a quality principles. C anyone else want to address that . Ilya as you know i filed an amicus brief with this Lawyers Association for cato and i was disappointed to see the court decide the case on the grounds of religious discrimination. I thought while there was a case to be made for that i wanted to see the courts perform from the broader principles principles that symbolic freespeech is protected by the First Amendment and the government cant those principles are broader than on the religious discrimination grounds. Theres a danger in that and i think recognizing discriminatory acts by saying they are religious acts creates a license for discrimination. The recent case that the court rejected involving the kentucky county clerk who refused to give out marriage licenses, thats not a good an example of someone who is a big voice for discrimination but simply an example of a Government Employee declining to do a job. I would have liked to have seen the court take the issue headon. I right lets move to a question by 10 months who says hes grown very worried about the difficulty the public has backs from opinions when consuming the news that a lack of calming understanding of what is true is very dangerous. To what degree do you think First Amendment protections of the Roberts Court jurisprudence have been abused by news consumers today . Well that is the concern that partly underlies some of the calls to pull back on the protections for the media in New York Times versus sullivan and i believe its one of the underpinnings of justice thomass arguments that the media gives too much protection. If you really look at whats going on on the ground however you have a series of powerful people suing the media and its not necessarily because they are going to win but they are going to inflict serious litigation on the media for criticizing them or for getting involves i guess i would be concerned and assuming that a change in First Amendment law is the answer to the fake news problem just to give a short answer to that question. You are muted again bob. You are really muted. Okay ill follow up to a different question by dan who is posting this on facebook and asks whether when the Justice Department the trump Justice Department democrats to be ecumenical here tries to force a company like facebook to limit speech under the threat of antitrust. Talk about those kinds of threats to the First Amendment or our speech rights. Its a concern is the public cant distinguish between facts and opinions theres not a government solution is going to apply to the medium and say the medium has to sort this out and have to force them to be responsible whether using the law or some other logged liberals and conservatives have been guilty of trying to target the messenger and then impose restrictions simply because it doesnt distinguish fact from opinion. We have a question from nina apollo who asks under brandenburg on violence in one of the exceptions to First Amendment protections could that president be successfully prosecuted for inciting imminent lawless action setting aside the Justice Department practice against president s . There are where he was a case that was brought in Federal District court in kentucky at wind candidate trump is at a rally and there were some people that were coming to protest candidate trump and he allegedly said get them out of here, get them out of here. They were then forcibly removed but the president also said dont hurt them, dont hurt them. So essentially what eventually was held was its not in symantec incitement to imminent law and fits within the narrow exception of which was further though narrowed and has the indiana views later so as ilya shapiro its the brandenburg section. The First Amendment protects donald trump. He benefited greatly from from the doctrine of rhetorical hyperbole and started Holding Political officials liable under incitement to think its purely partisan and its not consonant with the First Amendment precedent. Added that. Sure. After that an imminent requirement for incitement. Theres enough lag time that people can think twice and restrained their own actions and if they respond violently its on them and not on the speaker. I want to raise a question that i think its important the questioner hasnt come up in the audience part ron and dave or david you do in your report in the introduction to it mention how the political salience of many freespeech claims that shifted over the years were in the 60s and 70s there would be liberals or progressives pushing the envelope with speech that would be subversive or antisocial by conservatives. Now it seems like its libertarian who are making, trying to push the cord into a more protective area. Can you comment on that and is that a function of there being roberts albion the medium justice and being more conservative than the previous medium justices were or other developments . Or haps the greatest threat to our First Amendment freedoms is when they are perceived through the lens of our own ideology. The First Amendment doesnt protect the things that defend us then what is the purpose and so i think you know to see these freespeech battles is becoming increasingly difficult to do. In a new friday of cases i think really it undermines the whole purpose of the First Amendment. The other thing i wanted to mention in terms of the facts versus opinions if you think that the situation is pretty bad in 2020 i urge you to go back and take a look at the election of 1800 that was in circulars. It certainly rivals anything we see today. You can actually google of video realization of those pamphlets as if they were campaign ads from 1800 i cannot affirm that rhetoric is worse than anything we see today. Heres a question from charles. Does the First Amendment continue to provide the productions originally intended or the Public Meeting of that kind of original is how has the Roberts Court effect did these protections visavis Citizens United . Let me take the first part. I dont think we know what protections were originally intended in one of the reasons for that apart from the fact that theres not a whole lot of legislative history in the Constitutional Convention is the fact that they knew what they were doing was creating a bulwark against censorship. I dont think they were trying to explore what First Amendment allies were going to be promoted. I dont know they were going to try to affirm the constitutional protection for deliberative democracy or the press generally or whatever value you want to insert their think what they knew was tyranny restores freedom and what they were trying to do with the amendment was simply to provide a guarantee that there would not be officially sanctioned censorship. What we have come to recognize as First Amendment values were developed through First Amendment jurisprudence primarily through the 20th century and now to the 21st were you have different examples of censorship that then become court cases and go to court and the cases are decided and you get a First Amendment doctrine and you get First Amendment jurisprudence and with that we have come to see what the First Amendment protects but the one constant that goes back to the founding document is that it is a prohibition of censorship. A question from sara. How does the Roberts Court view First Amendment protections to nongovernment institutions. For example organizations given some sort of government and promoter and thats kind of wide and do it with it what you will anyone have anything on that . One thing to look at in the heller case strictly applied to state action so at least the five justices on the Roberts Court to take action is still a central animating feature of modern constitutional law. We are going to see more of that in the trump versus the United Institute case. We will have to address that issue. Just to be clear thats the case about donald trump blocking people on his own twitter feed and whether thats a state action. Thereve been similar cases regarding other politicians on other social media. Not to put you on the spot but think about those social media and directions in any thoughts on those kinds of cases . I started writing about social media blocking by Public Officials in 2011 before trump was ever on the scene and i couldnt imagine what was going to transpire. The argument is when you open up the comments section not they the comments section that you cant suppress her critics and you cant cherrypick what people say in a physical form that the government opens up for citizens to come in and see. I would expect the court to uphold its anticontent discrimination principles there within a public forum. The only thing that gives me pause is i sent any speaker needs anyone elses help to speak in any way doesnt necessarily find a sympathetic ear to the idea that their speech needs to be subsidized or protected in any way by certain party. I think we have run out of time. Bob, go ahead. The term public forum denotes public action. The court recently did that in packing him versus North Carolina where they talk about speech generally as being the recognized recognize public forum but not in the sense that its an government provided for him. It doesnt mean the government can deputize facebook or google to adopt Government Policies as much as it would like to. But when politicians were sitting Public Officials use social media and allow Public Access and try to censor it it does become a matter of state actions and the courts can Say Something about it. We have run out of time for further questions spread thanks to everyone for that. Although i would i cant resist giving the moderator the prerogative before closing and thanks to everyone for watching. Ceria didnt get to all of your questions but the confirmation hearings are going on now and john roberts is now the medium vote and has been for a couple of years and general not just on the First Amendment cases like Citizens United for example but assuming judge barrett becomes Justice Barrett i want to give run the last word in where his report is going to be published and what can we expect from the Roberts Court . Well to look into the crystal ball we have four opinions by judge barrett and basically what we know is that the vote is still in. She participated in cases involving Government Employee speech and government Prisoner Communications and executors which she is part of a panel being upheld with executive orders. We still dont know enough about her and thank you ilya and thanks to my colleagues bob and marissa for their participation today. I really appreciate it and im happy to say that brickandmortar school will host a symposium on the Roberts Court which is still very much in the work so thanks again to all of you. We really greatly appreciated. There are other additional materials that are available on catos web site for this event. With that thanks to all of our