Accommodation worked up to the political process. I worry that litigating all the stuff with First Amendment prudence, we lose the flexibility to negotiate. There is no reason to have one national rule, we should be striking different balances. And gay people or abortionrights activists and people today should be sitting down at the table forced to negotiate over statute that will strike balances. That is the right way to handle this. Wonderful. Greg, you have spent the last 13 years defending free speech on campus. How do the battles today look different than they did when you started . And what are the most important battles today . You recently noted that you have a growing list of 120 speaker controversies in recent years to my including highprofile dissident cetaceans deuce invitations disinvitations. What is the state of freespeech battles on campuses today . Im the one weird Law School Student that went to law school to do First Amendment law. My passion was freespeech. I dont know why i came to that, but that is why i went to law school. I specialized in it. I took every class at stanford offered on free speech. I even did six extra credits on free speech during the tudor dynasty because i loved it so much. And even with all that preparation, when i showed up and became the first legal director of fire in 2001, i was stunned by the kinds of things that can get you in trouble on a college campus. And 13 years later, im still stunned on a daily basis. That is the only reason i wrote the book, because i got tired of people saying, ok, that is one example. I talk about dozens of examples. There are a lot of trends, but one trend of a lot of trends is that it felt like when i first heard in 2002, diversity students would at least make some kind of bow to some kind of higher purpose to what they were doing, even if it was entirely disingenuous. They would say, and dont make fun of tuition prices or dont make fun of the dean in the name of tolerance and diversity. They would invoke these sometimes sincerely, sometimes for the greater good, but sometimes only half sincerely. In the past two years, i have seen more cases where they are not even bothering with that. It seems there have been a lot of these very oldfashioned examples of, just dont criticize the university. I dont have to justify it. Just do as i say. Which i think is the result of a lot of bureaucratization and just giving power for a long time. Every time around this time of year, a lot of speakers get disinvited from campus, or they are forced to withdraw their names. This invitation season happens every year. That is not so much a First Amendment problem as it is a cultural problem. We are teaching students to think if you dont like the opinion of someone speaking there, you dont challenge them, you chase them off and get them disinvited. I think that is the wrong way to think about this. Great. Eric, not long ago, the president of the United States and the president of egypt disagreed about how to treat a freespeech issue. This was the video of the muslims that was to have led to the benghazi attacks. Under pressure, the president said it needs to be removed because it shows a group of leaders in an entire religion, which is illegal in egypt. And the president of the United States was defending google and youtubes right to post the video, but caused momentarily but caused momentarily on that because it incited violence. But google and youtube refused because they said it is not criticizing a religion, but a religious leader. Our nonamerican freespeech traditions, they are obviously very different. America is more protective of freespeech. Is that the right thing . And did google do the right thing . It is a bad thing. I Teach International law and one thing i instruct about again and again is between american norms and norms in other countries. This is sometimes put under the rubric of american exceptionalism. One way that the United States is quite different from other countries is in its commitment to free speech. You can make three distinctions. There are countries like egypt and you know, authoritarian countries obviously do not like freespeech and there is no reason to want to be like them. But European Countries have a different attitude toward freespeech from that of the United States. Europeans tend not to be as absolutist. They take seriously the fact that people can be offended by speech, that it can cause turmoil, as illustrated by this video. And what is striking is that these human rights treaties, which have provisions about freedom of expression, but the provisions are much narrower than what you find in the United States. The provisions will say freespeech is a right, subject to various constraints, such as public morality and public order. I think president obama did a reasonable thing. This video is causing foreignpolicy problems for the United States. The United States is trying to improve relations with muslim countries and he wanted to at least show people in these countries who dont share our views about freedom of speech that we respect their views. He couldnt, obviously, order google to take on the video. If he had that power, it would have been an interesting question whether he should use that. I think people are wrong to criticize president obama in this case on the grounds that, basically the rest of the world doesnt share our views and they just have to get with the program. Theyve got to be like what . Like us . And if they are not like us, then new cares about them. That is not a practical way to run foreignpolicy. And we love our First Amendment so much and we think very proudly of american traditions about freedom of speech, which actually only go back a few decades, not to the beginning. But this is such a part of the american selfidentity that it very its very hard to make compromises even when they are warranted, and that is a problem. Great. Professor fish, you have written a book on freespeech called there is no such thing as free speech, and its a good thing, too in case that tells you where he falls on this spectrum that i suggested. And now you have written about Academic Freedom. What is your view of the relationship between these two concepts . X before i answer before i answer, i want to say how much i agree with what eric just said. If you recall Salman Rushdie and the fact that there was an order issued against him for the writing of the satanic verses. I was at a conference, a humanistic conference dont go to human is to conferences. [laughter] but i was at one, nevertheless. I used to be in that game and this topic came up and someone stood up in the audience and they meant it, this was not a joke and they said, what is the matter with those iranians . Havent they ever heard of the First Amendment . [laughter] the relationship between academia and the First Amendment can be simply described. Freespeech as established by the First Amendment is an inclusive, democratic idea. Academic freedom is a notion that only lives coherently within an academic structure, which is determinedly exclusive. What academics do our trade is to make judgments on each other. And what we do is not foster speech or to ensure that it will flourish, but rather it is the case that we devise mechanisms by which we give ourselves the right, at least those of us that have tenured positions, to say who can and who cannot speak freely. Another way of looking at the difference between Academic Freedom and free speech is to think of the topic of Holocaust Denial, which has been with us for quite a while and will be with us, i predict, for a very long time. Holocaust denial in our society under the strong absolutist First Amendment abuse that eric referenced is something that cannot be stigmatized or oppressed. Holocaust denial can be promoted on websites, radio programs, videos, and so forth. But in the academy, holocaust and ill is intricate Holocaust Denial is intraday did interdicted. It is not that it never rises, but when it does arise, it never arrives as an option. It is not regarded as an alternative vision that one might sincerely have. Rather Holocaust Denial is regarded as one might view elvis is dead denial. Rather so it is therefore the property of kooks and crazies. You can get promoted in a History Department for writing about it, but if you advocate it, you will neither get hired or promoted. Neither get hired, nor promoted. There is the structure of inclusion and a structure of exclusion. But this goes again to erics point. The First Amendment that we now have, which i would call not in a friendly tone a libertarian First Amendment. The First Amendment we now have is a recent development. And i would say it only emerged fully in 1964 with the famous case New York Times versus sullivan, which is a case that is dear to the heart of all freespeech ideologue. Before New York Times versus sullivan, it was possible, and in fact it was done by the Supreme Court to withdraw protection of the constitution from speech either because of what it did, the effects it had, or because of what it said. There was a content test and then the effects test. The effects test was called a bad tendency test. At the beginning of the 20th century, the idea that some forms of freespeech have a bad effect and do not deserve protection. That was followed by the clear and present danger test that said, well, yes, the effects may be bad, but we should wait to see how bad they may be, to see when the danger is imminent and then stepped in. But it is still an effects test. The content test was a said thats it was a test that said, look, there are some forms of speech that are worse and they do not deserve constitutional protection. I have one of my favorite notes from a 1942 case. Some of said social value and any benefit derived by them is outweighed by the social interest in order and morality. All that changed in 1964 when the New York Times versus Sullivan Court said that all speech must be protected independently of either its content or its effects. And independently of whether he was defamatory or it causes stress of a variety of kind, because the important thing in the case was to keep the conversation going in a wide open, robust, and uninhibited way. [indiscernible] right, which i sometimes call the john wayne theory of the constitution. And that was the beginning of the end of everything. [laughter] and that part of the world ended in 1964. Actually, it was the beginning of the beginning of everything. Let me remind you what the world was actually like in 1954 when the magazine youve never heard of because i hadnt until about yesterday called one publishing l. A. Oh, yeah. Good for you. It was the first openly gay intellectual magazine. It was not publishing sex ads or anything like that. It had articles and short stories and it was openly gay, and the United States post office shut it down because the content was unacceptable to society. They took it off the stand and said you cannot mail it, and just for good measure, the specific issue that they had as a cover story you cant say that about the censorship policies of the government. That is what they were doing. There was no reasoning at all and the Supreme Court struck down with the postmaster general had done, creating a wideopen field for debate of gay rights in this country, a position considered obscene and dangerous to children in my lifetime, and allowing the field open for people like me to make our arguments and eventually to windows arguments. I think you can win the arguments by gaining control of the political process, with since that is the way the arguments are always one anyway. The ideas won the arguments. We had no political power. You did not win anything. Im delighted that this first panel does not, first of all, need a moderator. Go away. [laughter] and that the debate has been joined so fiercely and that, in fact, we had fighting words. Now we know where everyone stands. These self moderating panels are so much easier to preside over. We have on my left the two First Amendment libertarians, as professor fish put it, who defend the american freespeech tradition, which holds generally that speech can only be bad if it threatens and is likely to cause imminent harmful action. And on the right, and we actually did not plan this, i will call them the First Amendment dignitary in. You can correct me. Who are defending speech that blasphemes groups or defends their dignity may be banned. And i want to ask greg as a libertarian to respond to the dignitary and argument that the responses from the muslim video should have come down. The google people were not convinced there was evidence of imminent threat. In retrospect, it turned out they were right. The video did not cause action. 22yearolds in full clubs were basically making a decision in the mill of the night. In flipflops were basically making a decision in the middle of the night. Did they make a better decision than the president . Almost as soon as the videos went up i mean, people who are contrarians on freespeech on campus are actually am i in my experience, in the mainstream. 59 are those that would be laughable if challenged in a court of law. They have been defeated every time. The extent to which freespeech has been appreciated on campus has taken a long decline in my own career. And there is an advantage to the tutor censorship. One of them is the idea of where we came from, and the idea of the spectacle of academics arguing essentially for blasphemy laws, saying we should be banning speech because it offends someone religious faith and i remember someone challenged me on this. And i said, you are not actually free unless you can question someone elses ideas. And that was so established that by the time you get to the establishment of the First Amendment, it is relatively taken for granted. Now, to the argument of whether or not we recently only recently started taking freespeech seriously, i also dismissed that argument. Milton was writing about freespeech in 1644. I would like to point out that almost as soon as the map has had the power to communicate ideas, a were arguing for free speech. Even long before milton. Freespeech was a powerful weapon and a powerful goal throughout intellectual history, starting as soon as people were allowed to speak it out loud. What stanley is conflating is that the First Amendment is not found to apply to the mistakes until 1925, and that is because of something called the slaughterhouse decision. They could not have actually applied it before. The 14 commitment came out during the civil war, and unfortunately there was a stupid decision by the Supreme Court that prevented that from having full force until 1925 when it started to be incorporated through the duke due process clause of the United States constitution. But there were better and better protections of free speech, with a little bit during the red scare of the 1950s. But of course, i see 1964, New York Times versus sullivan as a wonderful time. Can you imagine a rand paul or sarah palin being able to sue a journalist because they said something that might be vaguely critical of them . That is what they are arguing for. They are arguing for the right of politicians to scare journalists for the rights of through the rights of defamation. Do we want our politicians to be able to sue us for saying mean things about them . Its the same thing as lying about them. You have to make reference to the very opinion you are decrying. Because that is for the actual malice came from. But there is this flourishing political culture in europe where they had strong defamation flaws loss and it is way strong defamation laws, and it is way less democratic than it is in the United States. And people can go into politics with this system that we have and not have to worry about inge feigned or humiliated being defamed or humiliated. My dad grew up in yugoslavia. My mother is british. I spent a lot of time over there. And its funny how much it mystifies brits and my friend about how much you will hear, wow, europe has such great laws with regard to speech. We would never tolerate their National Security laws. These are laws that are in canada, australia, britain, and the recent these are not police state. Canada is not a police state. What is the harm that is taking place, the concrete harm that is taking place people say theres a whole lot of chilling going on over there. It is getting hard, people say, to criticize the united Muslim States to my by the way. There is a lot of Chilling Effect going on. I happen to have some in my pocket. [laughter] belgium has passed a law just the other day against advocating sexism. For purposes of this act, the concepts of sexism will be understood to mean any gesture or act that is evidently intended to express contempt for a person because of his gender or regards him as inferior, or reduces him to his sexual dimension, which has the effect of violating someones dignity to my either in Public Meetings or in the presence of several people, or in documents made public. Was the law passed . Yes. I take your point that these are not Police