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T tn,ouno tngca pp oe u cirn, suec tthpotil esreofhaol wee enhamewhala go fstmemeamin thpawh phom t ovbeorreriiv buive hefbo at jo tnke jt preebyeoeannghe flr d enakg. Aorl cveatn. Wel eowt s. I dso go. I dso te pce stf. He. Authara sd ou k. Lelaw age at therishre otadndheardog itwe whithrawo t cre lelaw bu ifa, eyavbe chge ltlbi , nd 1 1yes o ssn oligchndau ,hewe nre rtn e k. O ppssnfmaonhath ditik ris u. Tinho blhea okn fanng teor sh nedau abi a sai abn bliai i rooanheuehen u. Crtndheasn ct coicd. Thk re bkserol onhe. Kamonomndhe codn g tthu. A i thkonespaed l t ket eath s cldt u. Tein t tseymlil wsren fa sohe lelawar ac bng ud sprs italnfmaon jo ppss ls otrh . Dtnothca s ncoen i g io es coertis theoen th cnt autthis country about fr which is the subject of cato, of course. And it often comes down to, well, i dont care. We have the First Amendment and you dont. Frank at least you dont have it the same way. Therefore youre, again, youre iran. And that seems to me to be a piece of kind of, may i say, First Amendment fetishism. It is not the case that you can easily compare freedom in one country versus another country. But if you did, which is something cato does, right . Cato has this table of Economic Freedom in different countries. And if you like freedom, then, were you given the chance to swap all american laws and the constitution and the First Amendment, for the Canadian Parliamentary system, and its libel laws, and medicare, you would be intelligent to swap. Because if you did that, you would find yourself living in a freer country, according to cato. I rest my case. And indeed, of the countries ahead of the United States on that list, all of them are, well, theyre mostly countries with british common law. That is to say, british or canadianstyle libel laws. Canada, by the way, apparently has the most proplaintiff libel laws anywhere. You know whats funny about this sort of thing, theres a tendency to look at laws in isolation. Canada has extremely plaintifffriendly, substantive libel laws, but very defendantfriendly procedural laws. And the United States is just the opposite. American procedural law fairly beckons the plaintiff to come to court. But then you have strict First Amendment barriers when it comes to substantive law. So that at last, extremes come to touch, possibly, in the end. To quote ben johnson. So, the differences may not in practice be all that good, but in general they matter. Im not practicing in the area. But i assembled this group called scholars and writers for america, it was a protrump group. Did i it in part because i thought it would be amusing to find people who call themselves scholars supporting trump. We got 150 odd people, right. And then what happened was the press went through the list trying to find dirt on the people and they found one person. A person who 30 years back had been smeared as a nazi sympathizer. There was nothing to the story, if you had researched it for just a moment, would you have realized the charges were completely everybody apologized for it afterwards. A letter was written. Completely cleared of all of this. But nofrls, the new republic carried a story smearing her as this nazi agent on the list. And one thought, wouldnt this be a Good Opportunity to put the new republic out of business . Im not sure if it is in business. But, right . And then i discovered that by putting her name on the list, she was now a public figure and New York Times applied. Of course there is no such thing as New York Times and sullivan in canada. The canadian Supreme Courts expressly decided not to follow that decision. I regretted that barrier. It was, we would have had recklessness at least. If one did a momentarily search on the internet, you would have discovered that there was this story and then there were these 10 counterstories and it would have been too complicated to do. So i regret that. Yes, there are times when ill just mention this one last thing. I dont know about the case you mentioned. There are other cases where its important to vindicate truth. And as youve mentioned, british courts, youll recall the david irvine case, david irvine is a holocaust defire iner denier. Who i guess sued mr. Fleming it was in austria. It was in austria that he was convicted to a prison term. Frank but im talking about the libel case in britain. A british judge said, im going into this, you know, i sort of know what happened to in the holocaust. But ill approach it with a fair and open mind. Im just having read all the material, i conclude that david irvine is rogue and hes going to have to pay 2 million pounds. So as i say, truth becomes an important thing to vindicate in all of this. That which gives newspaper writers a greater incentive to ferret out truth, the not always about that. Let me jump in here. Maybe broaden this out a little bit. In arguing about Campaign Finance in particular, but about First Amendment free speech issues for a long time, john one thing ive noticed is people generally believe that lies should not be permitted to be spoken. The only problem is that generally speaking everybody believes what the other side is lies. Is so whauve uni so what youve set up is, now i understand libel is a different thing, but a general problem here, is that theres no room and flexibility, that is, for saying, well, maybe its not, you know, somebody could see it differently. That kind of thing. No. Even people that are supposed to be in favor of the First Amendment on Campaign Finance issues ive found really dont want people running for office to say things that they think are lies. So once you in a sense, and were now in the fake news era and all of this stuff, i would say that the culture out there in a sense is people actually dont have that kind of leeway, that kind of flexibility, or theres a danger they dont, and to think that without that flexibility you really created some justifications for First Amendment or free speech violations or limiting free peech. Bob thats why having government be the ash tror of truth is such a bad idea. If youre talking about private litigation, as in the case of libel, as trying to set that bar. The why New York Times versus sullvar van developed the way it did. With vs. Sullivan developed the way it did. With a strong presumption that it is up to the plaintiff to demonstrate that the statement is false and ringed about with other constitutional protections. Im fascinated to hear about canada, though. I think its a very nice country. I like their syrup. They do have different libel laws. But i think it would be an extraordinarily bad thing to try and import here i mean thats one of the reasons why i wasnt so worried about candidate trump talking about opening up the libel laws. Two reasons for it. One, he didnt have the slightest idea what he was talking about. Second, i dont think he was going to be able to find judicial appointees who would, in his term, open up the libel laws. In fact, if you look at the record of his nominee, neil gorsuch, you have a rather strong First Amendment record, including in media and defamation cases. Im not so worried about President Trump fulfilling the promises of candidate trump in that regard. But in terms of the search for truth, and i speak as a former journalist myself. I know a bit about the day we daily riggers of trying to find a story and make sure that the accurate. We saw in a case just a few years ago what the consequences are when the government does try and enforce standards of truth. That was afflevers vs. The United States. It was a case involving the federal law. It could punish people criminally for lying about having won military honors. What the court ultimately determined was that it really is a bad idea to have the government enforce standards of truth by law and that its much better handled through the marketplace of ideas, through other people pointing out when someone has been untruthful about their military accomplishments. And i think that really does maintain the constitutional balance. Those similar laws have been attempted in trying to maintain truth by political candidates. If you can imagine that. Seems like you would have to have night courts operating 24 hours a day if youre really going to enforce standards of truth by candidates. Frankly i think the current inhabitant of the oval office would have to worry about it a great deal as well. But we learned the hard lesson with the alien and sedition act, which were all about trying to enforce standards of truth by newspapers. That it really is incompatible ith our constitutional system. John i think whats referred is obamas trick of identify an extreme position and trying to position himself right in the middle. Let me assure you there is no ministry of truth in england or in canada. Frank and if you listen to parliamentary debates in either country, would you realize that theres a pretty big latitude for the ordinary slanging that goes on. They have parliamentary privilege. It is simply not the case that if you are in a free society, that youre going to start stomping on people, you know, playing politics, right . Thats the point really, isnt it . Again, if youre trying to judge liberty, i mean, it depends so much more on the attitudes that everyone understands in society of of that which is permitted and that which isnt. If youre in a liberal society, which most western countries are, you understand that instinctively, without having to be informed by a First Amendment excerpt. You know this in your bones. When you go into these other countries, youre in a free country. You know this because of the people in the country and not the politicians in the country. And not the courts in the country. I guess i am somewhat sympathetic to the argument that maybe we should just blow up all libel law. I teach contracts law. And i like it. Because its about private ordering. But id feel really uncomfortable trying to teach securities regulation. Which i dont believe in. I would be like an eighth yift atheist trying to at that teach a course in sacred theology or antitrust law or american tort law. All things which im not convinced add to the sum of Human Happiness in any great way. And libel law in particular. Theres so many ways out around i mean, first of all, theres all the new media, which youre not going to go after, of course, because theyre a judgment group. In the end, does it matter what a rag like the new republic might have to say in the end . Perhaps publish and be damned is the best thing you can do. I say that not only because i sympathize with the duke of wellington, but also because i dont exactly have the greatest of respect for the american judicial system. When i think of a case like the michael mann lawsuit for libel against national review. That was supposed to be shut down by the slap act. You know what that is . Its an effort to basically import canadian law. A slap is an acronym. It means so lawyers are prosperous. It just goes on and on and on and on. Might it not be better just to get rid of the whole damn thing . Im halfway persuaded that in as much as i do think that libel laws work in canada, maybe theyre not suited for america. If you think you can just export laws like that, then you make mads madisons mistake in quoting the celebrated modest view about the celebration of his separation of powers. What madison didnt understand is that before month skew was a political theorist, he was a sociology who knew that for each country theres an appropriate set of laws. And the appropriate set of laws for america might not be those f another country. Bob that would mean President Trump would have no recourse except for his twitter account. Frank ill mention that. Although i was a trump supporter, advisor on the campaign, and though i read the post pretty regularly, im not aware of anything that was said by the post or the New York Times that was libelous. As to trump. Fleming do you believe that the truth should be protected by the First Amendment . Frank theres circumstances where, as in the david irvine case, where i applaud the result. , i guess a al certain amount of skepticism does make sense. The story about [inaudible] read the newspaper each day, looking for mentions of himself, for people to sue. Hed say, judge and jury must decide. There are kind of libel trolls that way. Mostly the system works pretty well. You dont have people going around looking to sue other people for libel unless youre michael mann. John or donald trump. He has a long record of suing people and losing. But doing so for strategic purposes. Doing so to bankrupt the journalist or to punish someone. Bob its becoming an increasing tactic. Simply to use it, even though theres no expectation of winning. Frank and fleming and the being, [inaudible] because the media are not as well funded as they used to be. So the economic weapon, as happened in the coker case, with 140 million, i guess, might mean that the media would ck down if they sense that they would not be able financially to make it. And this is what is going on in less free societies, where the powers that be, they go off of newspapers, where you have oligarches or wealthy politicians to shut down the dia with libel suits and economic weapon. John you mentioned the media, which reminds me of your initial comment, which is about the declining trust in the media. I read a New York Times article in the last week or so that pointed to Public Opinion data from the pew group about the declining trust in the media. It has been. Over the last 30 years, theyve asked the same question. That, i think, is some people that argue that this is connected to the idea of that president Obamas Administration could do these many leak investigations, which s really intimidation effects on the press, they could do it because nobody trusted the media and theyre not particularly well liked. Does that matter . Should we care about whether most most corporate or the most organized, institutionalized part of the First Amendment doesnt have that much public support . Fleming absolutely. I think theyre important. It doesnt mean that you shouldnt criticize the media. You should. And you should point to inaccuracies and failures. But the media is an institution that is important to democracy. And trust in these public institutions, be they the presidency, the courts, the media, is important. To living democracy. I i do believe that and do believe trump, when he calls is ia the opposition, contributing to the undermining of trust. Because it is based on the notion that of course the media has its own biases, but you treat the opposition in a different wathan you treat the media way than you treat the media. So i think thats quite unfortunate. A more ink that fundamental thing when it comes free speech and the rights of inquiry and so on and so forth is the following. I think it was Daniel Patrick monaghan who many years ago said that everyone is entitled to his own opinion, but nobodys entitled to his own facts. And thats not true anymore. [laughter] now we have alternative facts. And this goes to the heart of what Jonathan Rauch has called the liberal science model. Enlightmenten the Enlightenment Foundation or society is based on the notion of the rights of free inquiriers and the truth will be served if we have the right to criticize and theres no final say and there is no personal authority. That the truth in the final end will prevail. And this is also mills argument of free speech. The more speech, the more criticism, the more back and forth, the better. If thats still the case in a situation where we cannot agree about what is a fact and what s not a fact bob thrn line lyes the problem. I dont think you can point to any one thing and say, that is the problem. In a world of alternative facts, who do you turn to . It used to be the media models that you had expert gate keepers, the large established organizations, whether the broadcast networks or the major newspapers, that served that gate keeper function, sometimes well, sometimes badly. But as media has become more democraticized through the internet, you had a number of Different Things going on. One is the economic base for tradition alameda has been eroded. So they do have traditional base has been eroded. So they have less strength to stand up to governments or other institutions. You have less trust because media sources have become more diffused. And then it becomes morin come bent upon the individual more incumbent upon the individual to be able to evaluate information and make critical judgments about what is likely to be true, what is not. You cant just rely and trust on an authoritative source to tell you, as existed in the previous media model. So it becomes more difficult and more pressure is placed on the individual. What we really badly need is more education and Critical Thinking skills in media literacy. So that when someone comes forward with their alternative facts, youre able to general public is able to evaluate that. And make better judgments. But its part of the good news and bad news about the internet. It has democraticized information so that every individual has access to a global platform. But it also has made it so that the average reader, the average anchor for o real determining what is real and what isnt. Frank let me step in right now. I think we all know what the story is here. If the media was dying, its a selfinflicted wound, we all know that. Reading the Washington Post over the last year has been absolutely hilarious. The antitrump stories, sure, yeah, two of them on the front page. No problem. But the metro section, too. And then of course the style section. And the book review section and the sports section. I never once did see an antitrump story in the weather reports, though. Lets all give them that. We all know that. In the future, there are going to be essays and books written about what happened to the media in the last year and what happened to the media is the media gave flipped the bird to about half its readers, right . Those readers, who didnt like being called deplorables, and who didnt think that they were simply clinging to their guns and their religion, they went to other news sources and theyre out there and so were getting that kind of competition. The suggestion that there is one simple holey purveyor of truth, which happens to be the New York Times or the the Washington Post, i think its hopelessly naive. And i dont think its going to be cured by some judicial, some school of journalism courses and whatever. I think it will be cured, if anything, but the market by the market. I think at some point newspapers, and the times says its trying to do this, i think nupes will wake up and say, look newspapers will wake up and say, look, there are other people out there and they have some theyre not all bigots and they kind of resented when they were called bigots. If you call them that, theyll tell to you take a hike, right . And theyll turn you off. As they should. Somehow the strategy of insulting half of americans didnt work terribly well when it came to selling newspapers, did it . Maybe at some point theyll figure that out. Bob i think the difficulty here is viewing this as a political game. Where youre either on one side or the other. I found both candidates deplorable. Thats part of the problem. You have a system thats geared toward a duopoly, presenting really a very limited range of political views. And the really not a question of whether or not the media is for one candidate or against one candidate. Its really a question of having some way of getting information out there that people can trust and that is vetted. And allows people to critically evaluate the information presented by whatever party wants to exert some kind a of rule. Frank but fleming what youre talking about is opinions. I agree with you that the media has contributed to the underlying of its own trust. But what do you think about, you know, the Trump Administration talking about alternative facts . And that we cannot agree anymore about what is a fact and what is an opinion . Frank i think it was bloody stupid. Fleming but the more than stupid. Frank weve been talking about the problem of the ministry of truth, right . And now were saying, yeah, but well have that, only it will be the newspapers that will do. It you see a problem there . Theres no ministry of truth. Its not the government and the not the New York Times. Its a lot of alternative sources. Fleming yes, thats why i said, the liberal science model as rauch calls it is based on these two principles. Personal y and no authority. You have to put forward your arguments and they have to be checked in the public and knowledge production and production of facts is a social process. Its breaking down when this process of back and forth and criticizing and challenging cannot lead to a result where we agree on what is the truth right now. It doesnt mean that its the final truth, but at some point in the process, i believe that is really its a deeper problem. Its not only about trump. Its a general cultural process that is going on, i think. John let me push this off in a slightly different direction. Is the problem actually anonymity . Not only just the anonymity of violence, like we saw in berkeley. Thats pretty typical. But the fact that so much of the speech that has taken the place of the older established media, which i agree with frank, i mean, i think the only question is, sometimes people that dont actually have much use for the First Amendment like a lot of the establishment media, you may have to support them anyway. Because thats what distribute right thing. But i would say the whole question of unanimous speech online is a large part of the replacement for that and its also part of the question of facts. Bob its like the old joke. On the internet, nobody can tell if youre a dog. Frank outlets like breitbart. John no. The anonymity question is the one i raised. This sort of goes back to the libel question, because thats part of the issue. People can attack others or just or they can suggest guy showed up with a gun at a pizzeria nearby with no facts really to support him. The argument is more speech. Thats Justice Roberts argument. Thats what Justice Roberts said in or justice ken did i said. More speech ken did i said. More speech kennedy said. More speech. Is it working . Breitbart is not unanimous speech. Bob i wasnt able to tell if you were in favor of unanimous speech or if you werent. I think we have a strong constitutional tradition that goes back to the founding. That is predicated on unanimous speech. At the time of the founding, a lot of the dissent would not have happened. Had the speakers been required to identify themselves. And because of that, the Supreme Court in decision after decision has recognized that the First Amendment does protect unanimous speech. That being said, unanimous speech online can lead to problems. I was saying earlier, theres the old joke on the internet, nobody can tell if youre a dog. They can tell by the way if youre an ass, though. [laughter] so theres a lot of that going on, a lot of trolling. People feel like, you know, because they are behind the veil of anonymity, theyll just say anything. And thats just something we have to put up with. Because the answer in the end s more speech. John getting you guys stirred up. Bob we should do one quick plug. Rauch was mentioned. If you havent read it, his terrific book is kindly inquizer tos where he talks about these principles, that it is an ongoing debate. No one has special privilege and the debate never ends. Fleming is the answer more speech . You refer to the incident with the pizzeria. It plays into the debate about fake news. And that is also a challenge right now. If i may just talk a little bit about whats going on in europe, where i come from, on this front. In europe there is an increasing pressure for criminalizing fake news. It means in fact, ministry of truth. That the government is to decide what is true and what is false. Which i think is very unfortunate. And right now you have very influential german politicians, both in the s. P. D. , the social democratic party, and christian democratic party, that want to equalize fake news to hate speech. To five years in prison and if facebook disseminates fake news and does not take it down within 24 hours, they can be fined 25,000 euros. 500,000 euros, which is 500,000 dollars. The antitrust minister of italy has come forward with a proposal, he wants to coordinate from brussels the fight against fake news. And the interesting thing is that the majority of these politicians, they identify the populist parties in europe as the disseminater of fake news. So its in fact a quiet, transparent way, to go after your political opponentses. I would not recommend that the United States, and im quite sure that will you not go that way, but and but it leads to a situation a where will you have government sanctioned news. And thats what you had in the soviet union. And in fact, in the soviet union, you had a law criminalizing dissemination of deliberate false information undermining the soviet political and social system. And that is the article in the criminal code that was used to put dissidents in labor camps. Im quite sure that the european politicians are not aware of this nasty association. But nevertheless, i think it should make them think once or twice before heading down that oad. John well, now you get your chance to get better answers out of our people here. Let me say first, were going to the question and answer section. Please wait to be called on. Wait for the microphone also. So this is sometimes an issue. And the reason for that is, everyone in the room can hear you and also people that are kwline. Please wait for that person online. Please wait for that person that will bring the microphone. Here, on issues that we have been discussing, we ask usually that people announce their name affiliation. If you dont want to, though, thats fine. [laughter] youre going on to be on tv anyway. Please, above affiliation. If you dont want all, make you comments in the form of a question. Lets begin with im going to be very rude by the way. Ill just point to people since i dont know your name. The lady right in the middle. Yes. She still has her hand up. Well try to get to everyone. Questioner hi. My name is rachel. Im a journalist and one who is very kerneled about press of freedom issues. My question has to do with dangerous speech, incitement of violence. Dont cry fire in a movie theater. Im wondering how that old adage applies to the digital age or just the state of the heightened spread of news and also heightened polarity. Im thinking, for example, season sb wants to burn a koran. We know historically that when someone in some corner of the world burns a koran, there will be violence and possibly death in other corners of the world. The people who disseminated the fake news story about the pizza parlor sex ring. When you know that certain kinds of information, that it is so incendiary that some people will be moved to violence for it, how do we treat that kind of speech . Bob when holmes wrote that famous line about shouting fire in a crowded theater, he said that no one would argue that it is protected to shout fire in a crowded theater falsely and cause a panic. When he wrote those words in 1919, it was a time when people were being sent to prison for advocating against american involvement in world war i. The United States was using the espionage act even to punish dissident clergy members who would speak up or president ial candidates. Fortunately american law evolved from that point. And holmes evolved after that point. To be more speech protective. And so the standard that was established showed that there had to be both an intent to cause an immediate lawless action, and the likelihood that you would have that imminent lawless action take place. The First Amendment that developed was very protective. Now we face the situation, the second part of your question, of where you ask about whether or not we have to anticipate that words online will be so inflammatory that we need to take some kind of action. And the danger is that if we anticipate that in a Global Medium somewhere around the world is going to get cranky about it and therefore we better start suppressing what people can say online, then you have lost freedom of expression. Were simply going to have to be able to deal with the fact that people are going to get upsetted a ath what they see or hear, whether its burning a koran or anything else. And that thats not going to be an excuse for limiting freedom of expression in the United States. We see this sort of the almost like grade escalation. When we talk about threat assessments. People talk about having safe spaces. And wanting to be protected from any kind of upset. What the led to is the presumption by some that there is some kind of right never to be offended. And if that becomes the standard, then the First Amendment is history. Fleming yeah. I can just i mean, i was involved in the cartoon crisis. Some of the issues that you raise in fact also informed the debate back then. And there were people who said, you should have known and therefore you shouldnt have published those cartoons. I think a couple of points. The interesting thing here is that all the violence during the cartoon crisis back in 2006 transpired in countries where individual citizens did not enjoy freedom of expression. Where they did not have the right to accomplish cartoons publish cartoon. While there was no violence in democracies where this was not a criminal offense. That is freedom of expression and tolerance had helped to work out a way of managing disagreements and offense in a way so that it did not lead to violence. And i think that is a very strong argument for not criminalizing these kinds of things. The more fundamental argument understand human beings as autonomous individuals able to make their to make up their own mind about what other people say, there is no automatic relationship between speech and violence. We as individuals and as human beings, we have a mind and a reason and a capability to choose how we are going to react to what other people say. If we ignore that human capability, we are undermining Human Dignity and reducing human beings to animals or to immature children that are not ble to think for themselves. Frank i think theres a clear distinction to be made between inciting violence, for example, urging people to burn something down, which there seems to be a bit of that these days, and speech which merely offends people. In that i agree entirely with you. Would anyone be terribly worked up if the book in question were the christian or jewish bible . As opposed to the koran . No. Would we want to make that distinction . No. The question is, are you asking someone else to become violent . Not are you offering a figure leaf by which that person thinks he has the privilege to ecome violent. Bob the same argument was made about flag burning. One of the reasons the government felt it could prohibit that as a form of protest was because they said there would be these violent reactions. Ultimately the Supreme Court saw through that. Including Justice Scalia saw through that. And held that the First Amendment protects that activity, even if it is something that may well cause a violent reaction. Fleming also i think there is a responsibility of the media here. Because the thing you talked about in florida, he had a segregation of 50 people. He intended to burn the koran in his backyard. It only became a worldwide event because the world media showed up and provided him a microphone. I think it was very unfortunate that secretary gates in fact called him up and asked him not to go ahead and president obama spoke about it on a talk show. In fact, being in charge of the secretary, obama called on a private citizen to cease his constitutional rights, without being aware in fact i mean, it may be prudent to ask the pastor not to do it, but as president , you have to protect u. S. Citizens right to exercise their civil liberties. And among them is the right to freedom of expression. I think that is really a slippery slope. Its not only happening here, the also happening in europe hen individuals do things that may create angry response somewhere else in the world. They call on them not to go ahead. Without being very clear about what they really are doing. Theyre asking citizens to cease their fundamental rights and liberties this a democracy. I dont think they should do that. John the gentleman four up and two in. This way. From the bottom. Right there. Questioner my name is steven shore. My question is, does the president know that were having this discussion . [laughter] john watch your tweets. Frank a good friend of mines works in the n. S. C. Mine works in the n. S. C. Probably does. Could be watching. John the gentleman in front here. Now theres more than one. The man in the middle. Using could be watching. The ra questioner herb rose. I come from a background where my father wrote read one newspaper on the way to work and he took the subway. He read another newspaper on the way home from work. In my high school, could you get a subscription to the New York Times, i think it was Something Like 25 or 30 cents a week for the daily newspaper. I come from a background and a time when people read newspapers and were concerned with what the media said. This was also the early days of television. Today you say that in the posttruth era, its up to the individual to seek out the truth, to determine what sources are reliable. I think besides the people in a room, that represents minority of people who form opinions. How do you encourage and increase the number of people to seek out reliable sources of ews and information . Bob im not sure i know the answer to that question. It starts we hadcation. It starts with with education. It starts with a set of common understandings that the individual is autonomous and able to make their own decisions. And have the obligation to make their own decisions. I think we should educate our children, that they should not only seek out opposing opinions , but participate in discussions and debates. It all comes back to Critical Thinking. And if other people have better ideas for how to promote that, id love to hear them. Frank you can think about American Kids on the s. A. T. Tests compared to other countries and the fact is we do terribly. Our k12 schools fail students miserably. There are all the distractions of television and the like. You can start with better schools. Fleming i think there is a more fundamental issue here. And that is the way social media works. And the way social media reinforces ignorance, i would say. Its not only about seeking reliable information, its about exposing yourself to points of views that you dont like. Because social media the algorithm of social media is created in a way that it will seek confirmation bias. If you like and share, you know, the things that fluctuate with your own point of view, and thats why during the campaign a lot of people never came across a trump supporter on social media. And they couldnt believe that he could win. Because they didnt know that there was anyone out there. So i think a way to change this trend is that we more consciously like and share stories and information that is contrary to our own confirmation bias. Knowledge and facts are social phenomena. They only become facts and knowledge if they are part of an interaction between human beings. And it means that everything trump says is only becoming fact, knowledge, if its being accepted by his community of interpretation. Frank there seems to be an summings that most of our problems would be cured if people spent more time thinking about politics and read being politics and listening about politics. And sometimes, dont you this youu think youve had it up to here . Dont you think youve had it up to here . Bob yes. But im not talking about politics. Im talking about life. Argue about the best band you want to listen to. The best restaurant. Politics is part of life. But the not the most important part of life its not the most important part of life. Talking about having it up to here. I was laid up with a broken leg through most of the fall. So i saw more talk television, listened to more political commentary, than i ever do, ever would willingly. Talk about a captive audience. That was me. By the time election day rolled around, i couldnt listen to another minute of it. When people talk about free expression, theres an assumption that it only has to do with electoral speech and political speech. One of the wonders of the First Amendment is that the court has acknowledged that it protects all expression. Because all of life is filled with talk and communication, about all the ways in which people live. Including sex. And that is why the First Amendment doesnt distinguish between which ideas are better than others or which ones rise to certain level of theyre going to be protected. It is an open field a to allow people to form their ideas about how they want to live. And politics is a game we play here in d. C. John it seems like its also, get ready for this, im going Say Something good about trump and obama. I dont know if thats happened at cato before. President trumps done a good thing in the sense that hes got a lot of people interested in politics. But more than that, he got them motivate and he got them to believe motivated and he got them to believe that, my impression is, a lot of people who thought, this is just hopeless and all of that sort of thing, he got them to believe in it. He got them to believe in a certain way, right. So the in other words, being motivated, mobilized into politics, you start as an advocate and then you meet with others and you argue with others and so on. And you have to take them seriously and theres a development of a kind of civic capability there. So President Trump got that going. I think what id like to see is Something Like where president obama did, when people were talking about safe spaces and College Students being protected from ideas. It would be great to see President Trump say Something Like that. Something that was really supportive of the culture of the First Amendment and after all, thanks guy that gives as good as he gets and he can put it in that context and all that stuff. Something positive could really follow up on his initial mobilization of these people who could become better citizens under the First Amendment. Bob yet his impulse, in hearing about the situation in berkeley was, to send out a tweet saying, deny federal funds . While i appreciate the fact that he was saying good things about freedom of expression and the universities shouldnt cancel speeches because there is discomfort with the message, the notion that the way to deal with those situations is through federal coercion strikes me as just a little bit odd. Nonetheless, it gets back to how you view contrary ideas. Fleming, you were talking about this, saying that the problem is everyone has their own bias reinforced. You see that with the reactions on campus where you see contrary ideas as being dangerous or unwelcome. And therefore you have a hostile reaction to it. We should have, particularly in the university setting, but i think throughout society, just a more welcoming attitude toward ideas that you hate, so that you can engage in that robust give and take. Were not seeing that now, with the polarization. What were see something shouting matches seeing is shouting matches. Frank let me follow up on that. One of the greatest threats it seems to me of free speech comes from universities. Particularly universities, nearly all of whom have their offices of, you know, diversity , this, that and the other, and are very quick to try to suppress people who have conservative views about anything. I dont have a particular problem about an administration that tries to defend Academic Freedom. I remember what the battle lines were like 50 odd years back when there were loyalty oaths. At that point it was places like the New York Times that properly came out in favor of free speech. And people like william f. Buckley, who wrongly, i thought, supported loyalty oaths. Id like to see the defense of Academic Freedom coming from the department of education and id like to see the New York Times oppose that. Bob i agree with you there. We havent met before, but i spent about half of my time litigating cases on college campuses. I can tell that you it is what would you call it a vast bipartisan conspiracy to restrict speech, regardless of whether its conservative or liberal. My cases have involved students on across the political spectrum. What you have is a bureaucracy that increasingly thinks that students cant think for themselves, and that they have an obligation to protect them from anything that might upset them. Its a very unfortunate trend. And fortunately our constitutional protections are strong in that area. John the woman on the aisle, about four, five in. Howing intense interest. Questioner my names maddie and im a student at american university. Where there has been some flag burning last semester and considerable protests. Im also from minnesota, where theres currently bills being presented to restrict forms of protest. And i think thats a freedom of expression that hasnt really been touched upon in this panel. I wanted to get your opinion and perspective on that. John on let me Say Something about flag burning. It is not improper for a country to promote this sense of nationalism. And i recognize that nationalism in other countries can be extremely dangerous but there is something benign and to understand that, you have to understand what it makes people american. Its not race or religion but allegiance to some fundamental documents as espoused in the declaration and the corner stution and the First Amendment and some speeches by Abraham Lincoln and that is what makes you an american and a refugee who comes here because he believes in those kind of principles. Nd part of that involves the supremacy of those principles over the symbols like the flag. So it is glorious for the court to protect flag burners in defense of the more fundamental principles of that which makes one an american. I salute the flag burning case. And if you want flag burning, the best thing you can prescribe it. The wave of flag burning that took place after the Supreme Court upheld the First Amendment right to protest was unprecedented. They dont burn flags elsewhere. Bob and koran burning. In denmark, where i come from, burning of flags of other countries is a criminal offense. Danishlist part when the flag and turn it into it. The wave of flag burnings of congress trying to correct the Supreme Court that it was going to be made a crime and it became very attractive to do. Both president ial candidates presumably supported criminalizing flag burning. The gentleman right in the middle. Ut the microphone let me go into a slightly different direction. Talk into the mike. I think there is a law of section 20 of the communication decency act which protects them from liability. Is this likely to come under assault . The trump station over issues, over misuse of the internet, the bullying, the terrorist propaganda, sex trafficking, the backpage case. That could be a serious threat to the whole content. In europe, they dont have a strong protection of downstream liability in the u. S. And i dont have a problem with anything milo says. Im a little surprised i anted to throw that out. I havent heard anyone from the Trump Administration talk about section 230 specifically. First, for the president to Say Something, someone would have to explain to him what it is and i dont think he thinks it affects him. There is pressure on section 230 that says if you are an internet platform and host the speech of a third party, you arent going to be held liable. It was really setting out to regulate the internet as if it was broadcast television. And it has been an important driver of internet freedom. If you are in the platform, you will be liable for posts that somebody posts and be responsible for millions and millions if you are on youtube or facebook. Com. And under those circumstances, nobody is going to take the rifbling of posting anything. The internet is wide open and a lot of speech that women object o. It would be enforced by the courts. I would say from the end of it, speaking on behalf of my colleagues at the cato institute, im sure that everyone does not agree with milo and at the same time, im certain that all of my colleagues believe he has the right to say all of it. And the government had no power including someone at berkley, which by the way, the berkley administration behaved pretty well from what we can tell, but there are two Different Things. Government doesnt have to be to limit government and dont be favoring. Thats crucial. Now, gentleman the aisle here. Pure journalists from a small newspaper or a private citizen who getsally tacked on twitter, 3 00 in the morning, 4 00 in the morning, 6 00 in the evening, you dont have the resources to protect yourself against Death Threats or anonymous telephone calls or attacks by other of mr. Trumps followers, 20 million, i guess. Im wondering whether that has impact on free speech in that the private individuals may be reluctant to say what they think, particularly on social media, because you dont know who is going to attack you. But the tone that goes to social media and the president isnt the first person to do this, but a lack of civility that the president of the United States by his own action seems to participate in. [applause] you dont have that filtration, but on the other hand, you have made the president , the head of state as well as the head of government and therefore, he is someone you are trained to reveer. I think politicians about the lowest kind of worm. But in your constitution speaking as a foreigner, in your constitution, you have to reveer these guys and if there is a tragedy that is a healing speech er which peggy noonan will shed a few tears, i think it will be done by prince charles. We use Reality Television to filter our candidates and dont give up their twitter accounts. It is a problem, but i dont think i connected necessarily to social media. If you had a new president elect who would single out individuals and say i hate that person or that person is a loser, then you would have the same problem. The fact is the president has used his twitter accounts to Single Companies and there have been unfortunate consequences. I have a long train commute to work every day and i was talking to a friend who said he had an acquaintance who could retire. And he said he had a system of following following trumps tweets and making trades in the market based on those tweets and whether the stock was going to go up or down and in six months, the guy is going to retire. I have no idea if this is true, but i wouldnt doubt it. I dont think it has anything to do with the specific media and general challenge. But i think we are still may need democracy some courage but without literal comparisons, it is the same with terrorism, the way you fight terrorism. By doing that, you reduce a terrorist act to symbol criminal atlanta and not take out the litical content of it, so if you sit back and feel intimidated and not speak out, it will have consequences, but its up to everybody to make up their mind what they think about it and react. It follows the math. We have fought terrorism today because we have sat in a room for an hour and a half. I want to thank each of you for coming today. I thought it was a very good discussion and continue the discussion upstairs during our lunch. Go up the stairs, the second level to the conference center. The rest rooms are on the second floor and look for the yellow wall when youre there and thank our guests, fleming, bob and frank. [applause] [captions Copyright National cable satellite corp. 2017] nick nick captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org cspans city tour will explore the history of fresno, california, saturday at noon eastern on c sparns book tv. And about the 1948 plane crash in california that killed 3 eople and mexican workers. And it went across the country. And you know, one of the great rebellious folk ico nmp s and heard the news reports and wrote a poem. You wont have a name when you right that big airplane. Learn about the life of author planting a new soil as he recounts his childhood in central valley. Vibrant very agricultural economy. This was the only entry point for a lot of them in the american economy. And sunday afternoon at 2 00 p. M. On c espn 3, the history of agriculture in the fresno community. Only five rooges throughout the world and only one found in the United States. And the museum and learn about the history about the contributor of community in fresno. He was interested in the growing of racins and wanted to get a coop to structure the pricing and control quality of raisins. Im a white male and im prejudiced and the reason it is something that i wasnt taught but something that i learned. I dont like to be forced to like people. I like to be led to like people through example and what can i do to change to be a better american . That was a remarkable moment and i didnt realize numb i stepped off the step because there are calls after that how powerful it was. Something in his voice that touched me and saw authentic as he searches for the words to go to the audience. Im prejudiced. Sunday night, heather mcgee, director of the public policy. And she talked about that interaction and her followup. Part of the reason, this is august. And we have had this racially charged, Donald Trumps campaign with black lives matter and shooting and tragic events. It was really a time when people felt like all they were seeing on tv on race was bad news and here was first a