This along with these Television Companies support c span2 as a public service. At the end of his extraordinary conversation, Salman Rushdie challenged us to defend the First Amendment principle we must protect the thought we hate as Justice Owens called it and in americas speech can only be banned if it is intended to and likely to cause imminent violence and thats the principle that comes from the brandenburg case articulated by brandeis and whitney. It makes america the most speech protected country in the whole world. And on the first panel we will explore the history of that idea with three of americas greatest historians of freedom of speech. I am so excited for the conversation. We have the future of free speech project and we have steve solomon from nyu and i want to jump right in and first say that your book, free speech, history from socrates to social media, i think is the clearest and best history of the evolution of the idea that i have read. I want to begin by asking you where did it come from . The phrase that we must have the freedom to speak as we will and think as we speak, you teach came from the roman historian. It was then picked up by spinoza that i learned from your book and then articulated by the letters and the great whig revolutionary theorist that inspires jefferson and tell us more about that and how it began in athens and rome and was picked up . First of all, thank you for inviting me and i feel like i have been given a wildcard to the allstar First Amendment game here in the United States so it is an honor to be here. The First Amendment was not the first invention of free speech and i would say we need to go back to athenian democracy to find the origins of free speech and they had two models, and one was the quality of political speech of all freeborn male citizens have a right to seat and then a civic commitment to the tolerance of dissent which permeated athenian culture and then you have the interesting roman example. But the roman example is a bit more topdown elitist conception of free speech. It was the elite and well educated, not the others who were supposed to exercise free speech. But it was the roman ideals that inspired, as you said, catos letters that came up with this enlightenment that free speech is the great part of liberty that made it into the virginia declaration and madisons first draft of the First Amendment which even made it to radicals in russia and was spread all over colonial america, which also, i think, played a very Important Role in a case from 1735, the singer case, where a printer was the printer of the first opposition newspaper in the United States was attacking the governor of new york and was put on trial for seditious liable and normally it would be an open and shut case but the jury drunk on catos principles decided to acquit him even though common law was pretty clear and since that case, basically it became almost impossible for colonial governors to use seditious libel trials to convict people to have juries and because a culture of free speech had been cultivated. I think that marks a huge difference when you have more than 1200 cases of people being prosecuted for speech where here in pennsylvania under william penn, himself a former prisoner of conscience you had censorship and a counsel presided over by william penn and anthony west that you be lashed 30 times for speaking out against the government so a huge shift between the 17th and 18th century in the understanding of the importance of free speech and that sort of plays into developments leading up to the revolution and also afterwards. What a beautiful encapsulation of the history of free speech and that phrase drunk on his letters sums up how the colonists absorbed the spirit of liberty that you so well set the stage for a conversation. You are my First Teacher of constitutional law and have kindled my understanding of the constitution and so many americans. And in his virginia bill for religious freedom, Thomas Jefferson offered four reasons for protecting free speech. First it is an unalienable natural right that comes from god or nature and not government. Second that it is necessary for the discovery and spread of political truth, third, it is necessary to hold Public Officials to account, and it is necessary for democratic self government. Not all of those were shared by all of the founders. You have taught in your writings that there was a concern about the collective selfdetermination of the people that was at the centerpiece of so many founders and that involved evolved. I want you to teach our friends how those jeffersonian ideals were accepted and not by the different founders and who were the leading voices on behalf of free speech . It is such a great honor to be back here. You are right. Way back when, when i had black hair and you were just a lad when we first had that. And this is an amazing audience. But Salman Rushdie said thing at the end that should concern us all. To look around and there are not enough young people in the room and we were young back then and we have to teach our children to take a line from Crosby Stills Nash and young. Here is the thing. You are right. This is an amazing place and ladies and gentlemen, please look to your right. Okay . Now this is the room where it happened in two things happened and they were different. People can talk or walk the walk. The declaration of independence was drafted there and heres the thing. Was it really put to a vote . And then the constitution is drafted there. And it is put to a boat and the athenians didnt put the constitution to a vote and the romans didnt and that is astonishing and amazing and more people got to vote on when america became great and that is a moment in Human History that is astonishing because an entire freaking continent is getting to vote on how more people got to vote than ever before in Human History, but they also spoke. You actually have here an artifact, a Newspaper Publishing the proposed constitution and there is freedom of the press before there is a First Amendment because the press is free to publish this short thing and its not just to make stuff up so that ordinary people can read it start to finish and decide whether they are for or against it so that is freedom of press before there was a First Amendment and put it to a vote and then a few things. The first thing ordinary people say is, dude, you forgot the rights to secure these rights. Securing their you forgot the right said george mason and other people. And they did. In this ratification process, actually they rightly goofed for the first thing we will do is have amendments and they say that the people in the right of the people to petition and assemble in the Second Amendment and it is coming from this we the people act of the establishment and putting it to a vote and ordinary people say we want rights, including rights to criticize because that is what we are doing right now. And the final point that people you are allowed to oppose the constitution and you are not voted off the island and if you oppose the declaration of independence, you are almost not heard from again because it is a war and you are either for us or against us and almost no one who opposes that goes on to anything, truthfully. You can oppose it. And like george mason, the university is named after you. You can be president of the United States, james monroe or Vice President or George Clinton and the justice on the supreme court, samuel chase. We dont just say it. We do it and the bill of rights comes from critics and dissenters and bottomup from the people so two Amazing Things happened there. Declaration not god constitution and even better because more people got to vote and got to speak, got to criticize and they were listened to and not voted off the island. That is the story of we the people in this amazing part of this. Beautiful. You do tell the story [ applause ] the connection between we the people in the constitution so well in your books and i have to say what an electric thrill it is to be talking about the First Amendment here with you and our friends gazing at the Independence Hall and its an extraordinarily secret space to be talking about. Steve solomon, the man who convened all of us, year magnificent book revolutionary dissent and how the founders generation created the freedom of speech, tells stories of jury trials like this trail which jacob mentioned and other dissenters like mcdougall who was acquitted by jury nullification by liberty loving juries that didnt want to enforce seditious liable laws and tell us how those revolutionary dissenters shaped the founders conception of free speech. Thank you. So the law of england, the common law of england, that was adopted here and came over to find freedom of speech in a very limited way and what it said was a freedom from prior restraints. The government couldnt shut down a newspaper but once published, you are responsible for what you published and in terms of what we are talking about today the concern was criticism of the government and that is what we call seditious liable and it is the criminalization of criticism of the government and that system was here. In august 1765, after the passage of the stamp act, which taxed americans without their consent, something happened in boston. They dedicated a liberty tree and half the town came up or came out and they heard speeches all day and effigies and hanging of the british Prime Minister and it energized the opposition. This was carried by newspapers throughout the colonies. One by one, all of these cities put up their own liberty poles and liberty trees and the debate was energized and it was opposition to british taxes without consent and other things like general warrants. And the liberty tree is one thing and people started writing pamphlets broadsides and they wrote poems and plays. They were all criticizing britain for their policies. And at least technically all of this literature and action was a violation of seditious libel. And jacob made mention of this case and 1735 and now go forward to the 1760s and the british are not really happy that all of this criticism is here and they try to start to use their seditious libel laws against the colonists. But they arent successful. Because, in order to bring a case, you have to convince a grand jury to indict and they could not do that. And some examples were the boston gazette the most radical paper in america published by samuel adams and they publish all kinds of revolutionary literature and the governor tried four times to get indictments and all four times the grand jury said no and then they went to the General Assembly of massachusetts and try to get action there and they came back and said no and said the freedom of the press was this part of liberty and you move south to new york city and you mention Alexander Mcdougall and he was a wealthy merchant and he circulated a broadside for the son of liberty and he was identified as a writer and they were unable to convict him and again because of the Popular Resistance to seditious libel. And one more example because it shows how desperate the colonial governors were and they go down again a little bit south to virginia and governor in 1775, the conflict has broken out and he flees williamsburg and gets to Chesapeake Bay and he stole and criticized and suffered the slings and arrows of outrageous pamphlets and he is very unhappy be and he is like i am not owing to be able to indict these Newspaper Publishers but he has another idea and one morning he said sent at cousin of his soldiers on the boat off the manofwar into norfolk. They go to the offices of the intelligence and they take the Printing Press and they take it out to the manofwar and not only do they shut down the paper and very critical of him but then they Start Publishing all kinds of propaganda in favor of that. So that is the desperation that they had and how could they stop the criticism. It got to the point the only way to stop it was to take this kind of radical action. Now, coming out of this period, i have to quote samuel adams who, i think, was maybe someone who said it best. Listen to this. There is nothing so terrible to tyrants is a free press. There is nothing so terrible to tyrants than a free press and you can see that today, right . Somebody talked about the authoritarianism and that is what authoritarians do. They try to shut down the press. He saw that and that is where you are. Steve, you talked about the history of sedition. Jacob, want to ask you about the history of sedition. So as was mentioned, the sedition act of 1798 try to criminalize any criticism of the federalist president , john adams and not the republican Vice President , Thomas Jefferson. Jefferson and madison objected to these acts on the grounds of federalism and they said that congress couldnt exercise that power reserving the possibility that the state might and in their great dissent of the 1920s, they disagreed and come up with the di the idea that speech should be banned if it is intended to unlikely to cause imminent violence and really causing offense against the authorities wasnt enough. I do want to ask you what is the history of that principle that you could only protect speech if it is intended to likely cause imminent violence . Was it original with homes in brandeis, or does it go back to ancient times. I will take a step back first because i think that really demonstrates the two conceptions of this an elitist free speech surviving into american history. You find suddenly with the sedition act, federalists are saying, yes, we have adopted the First Amendment but basically we have a bostonian conception of free speech and prior constraints but if you Say Something against the government, you can go to jail were as madison, at least, if you read his report of 1800, he had a particular detailed argument in favor of why the First Amendment protects against seditious libel and it distinguishes america from britain where britain has a much more elitist system and america is governed by the people, and, therefore, seditious liable libel violates that and even in the age of social media we see sort of that these two conceptions are there. But the idea that words should only be punishable when they incite violence or at least when they lead to access something you see and something you see in spinosa and they are crystallized very clearly in brandenburg, which is a decision, i think, a lot of people outside of america dont understand including in my country and denmark right now is reintroducing a blasphemy van because of people on the far right who have been burning crowns in public and the government is now passing a law which says that in proper treatment of religious objects will be punishable with prison of up to two years under a chapter in our criminal law which punishes treason and threats National Security and it was only then when they abolished it. I think that principle really is central to the principle that Salman Rushdie talked about that if you are serious about defending speech for those that you dont like, you really need to have very very clear principals because otherwise human beings experts at convincing themselves coming up with elaborate narratives of why free speech is important but the communists, the abolitionists, the womens rights activists and the rights activists, they are actually undermining free speech or undermining the values of which democracy depended and therefore they have to be criminalize. I personally am a big fan of brandenburg. And i do wish that principle was more universal. But that is not the world we live in. Yes. We must teach the brandenburg principal as part of our convenient today and speech can only be banned if it is likely to cause imminent violence and not if it may cause a possible bad axe in the future and out of it might cause offense or possible incite people to affiliate with others who may argue. It has to be intended to unlikely to cause that violence and its the most speech protected principal and so interesting to learn that it has roots in this in spinosa and help us understand exactly where it came from and the thoughts of the founders and jacob mentioned madisons report of 1800 and is that the crystallization of the libertarian conception that speech can only be banned if it is intended to unlikely to cause imminent violence . And how did it evolve during the civil war and make its way to brandeis and homes or brandenburg. Thank you for mentioning the civil war and i think it is important. And this was an intentional. I do get all of my clothes from downstairs and my ties and things like that but i think i am wearing my Abraham Lincoln socks and it wasnt for this event. I do have my we the worlds greatest writers about storytelling and narrative. Narratives are very powerful. Heres why we have a particular challenge because we are the one nation in the world where the great grandchildren of all the other continents actually come together and that puts strain onus because we dont have race in common. We dont have religion in common, not even quite language. Some of our forebears came here hundreds of years ago in chains, others, hundreds of years ago with bull whips in their hands and others came yesterday. So the only thing that we have in common is actually our constitution and our narr