Viewers at cspan and on the internet. Will President Trump threaten free speech. Im publisher here at the Cato Institute and our event today will be attended and represent a conversation among the group you see in front of you. Primarily the three experts on the First Amendment. I want to begin today by introducing each of them briefly, i should say these people have accomplished a great deal in law and the First Amendment so im going to give you a very concise biosav bio o. My first is one who served at the danish publication, he is the author of several books including above all the tyranny of silence. Hes been awarded many literary prizes in denmark including a literary award from the leading intellectual newspaper just last week. Frank buckley, is foundation at the scalia law school, duel canadianamerican citizenship and author of request of the way back. Our final partner will be bob corn revere, a partner in the washington d. C. Office, where he specializes in the First Amendment named 2717 lawyer in d. C. By best lawyers in america in categories of First Amendment and litigation of fist amendment. I thought to get our conversation started today on our event that i would as verbatim as possible read some quotes over the last year or so by now President Trump on First Amendment and free speech issues. In february of 2016, then candidate trump said quote im going to open up our liable laws so when they write purposely and negative and false articles we can sue them and win lots of money, were going to open up those liable laws so when the New York Times writes a hit piece which is a total disgrace or Washington Post which is there for other reasons we can sue them and get money because theyre totally unprotected. In october 2016 he elaborated that he thinks the First Amendment provides too much protection that he would like to laws changed to sue media companies. He lamented that quote our press is allowed to say whatever they want unquote. Mr. Trump recommended at that time moving to a system like in england where someone who sues a Media Company has quote a good chance of winning unquote. At the same interview he said he is quote a tremendous believer of the freedom of the press, nobody brings in it stronger than me, unquote. November 2016, after having been elected president of the United States, mr. Trump tweeted nobody should be allowed to burn the American Flag. If they do there must be consequences perhaps loss of citizenship or a year in jail unquote, and finally yesterday mr. Trump tweeted if uc berkeley does not allow free speech and practice violence on innocent people with a different point of view then all caps, no federal funds, question mark, unquote. Fleming . Could you get us started here by offering some thoughts on mr. Trumps statements and your views . I would be happy to. And welcome. Its nice to be here and thank you for the invitation, john. I think i would say in general about President Trump that he promotes a culture of intolerance and the example you provided with the flag burning and the suggestion that people might be stripped of citizenship if they entertained in that kind of activity i think indicates what im pointing to, this is a traditional approach in populists in europe when they insist on speaking on behalf of people and believe they have a right to determine who belongs to the people and who dont. And if you do not agree then you are not part of the community and you can be stripped of your citizenship, so this i think this culture of intolerance and bullying is one general trend. When it comes to liable law, i think mr. Trump by now understands that theres no federal liable laws, there are only state law i think that you can use. And or apply. And here i dont think that mr. Trump is maybe the main perpetrator but he is contributing to a climate that is changing the creation of the relationship between media and public. Since the versus the New York Times 1964, its very difficult to win a case against a media if they had determined that somebody is news worthy. I think that is changing and trump is playing into that climate. We had the hulk versus case i think when they gawker went bankrupt and you can disagree on the facts or on what gawker did, but i think the conclusion is that no court anymore will provide the news media the final say when it comes to determine whether something is news worthy and trump by labelling the media, discussing people, dishonest people is playing into the under mine ing trust in the media. I have a correct something john said. John said he had assembled a panel of experts on the First Amendment. Im none of that. Im here only because im a trump supporter so im the sa sacraficial lamb. I worked as a reporter in canada, i completely get it, okay, theres just america and theres iran and nothing in between, right . [ laughter ] so everywhere else the world is a world of despetism somehow it lands in europe. True. And we dont do fascism, and as for the liable laws that trump wanted, well, working as a newspaper reporter, i worked for a thompson paper, in prince albert, and i was asked my politics and i said i had been president of a tory club and thought the universe us unfolding as it should but i learned a bit about liable law and it was fascinating that i had some responsibility for the truth. If you report that norman p. Brown is dead, and turns out hes alive and its norman b. Brown is dead, of course its fascism, its not america, what else could it be . But the newspaper industry in britain is pretty darn good and people have had the experience of trying to get the news from the telegraph or daily mail. Toronto has four dailies and all doing rather well, theyre all suffering from the ravages of classifi classified ads and the internet. And millennials that cant read, but theyre doing well, right . Global and mill the same, National Post 200,000, so theyre doing rather well and i havent heard too many complaints about them suffering under this facious law. First i have to congratulate you on this title will President Trump threaten freedom of speech. I think i have to modify it to say when will President Trump threaten freedom of speech. [ laughter ] what time is it . It is one threat to freedom of speech after another. But, you know, the thing that makes it unusual is it really is nothing different from most administrations, the difference is trump is a bit like a fouryearold with trets syndrome so you have these constant outbursts that probably express the most inner thoughts of poll titicians but he just s them out loud. There have been more panels about donald trump, ive been practicing 30 years, there seems to be one every week assessing what the impact is going to be. And i get that with statements that we need to open up liable laws and the press being the most dishonest on the face of the earth, but i think we need to look at what the difference is from this administration to the previous ones, after all while president obama didnt make the same kind of inflammatory comments about the press that trump does, he did in his administration initiate more leak investigation and prosecution for leak investigations in history combined, also if you compare President Trump to Hillary Clinton, i dont think she was any more transparent than trump would be or friendly to the press for that matter. You know, both candidates this year campaigned on a platform of appointing Supreme Court justices that would under mimin First Amendment freedoms, if you except trumps statement and opening up liable laws as some indication who he wanted to appoint, that was one goal, Hillary Clinton campaigned on the idea of someone who overturned Citizens United and i cant remember a time when candidates from both major parties campaigned hoping to under mimine existing protectio for the First Amendment so when the question is raised will trump threaten the First Amendment, the answer has to be compared to what . You know, i think both major parties, most politicians are hostile to the First Amendment if they could liewould like to the liable laws, so the question is what exact things that trump might do could under mimine the First Amendment. I think first in terms of you know just practice with the press. Weve already seen the opening of that. Threats to limit press access to the white house. Steve bannon saying its time for the press to sit down and shutup. Well, no, thats not going to happen. And i think those will have an affect but its hard to tell whether or not that will be more in favor of free speech or against because i think news organizations will adapt and may actually improve journalism, rather than just relying on access of people in power, the new york city, Washington Post, other news organizations are already investing more in their white house coverage so it may end up being a net positive because at least you know who your adversary is with the administration describing the press as an opposition party, if thats the case, lets see a real opposition. Secondly in terms of policy, who trump might appoint to key various positions, i think that could be a mix of things, Jeff Sessions is confirmed as attorney general, i dont think that its going to lead to any more openness when it comes to leaked prosecutions, and during his confirmation hearing was noncommittal about whether or not he would continue that trend. There was talk about the obscenity enforcement unit. Trump did take the pledge to crack down on porn, which is odd for someone whos been in a couple of soft porn videos himself, but theres a chance for people that move in that your. But i know some are quite concerned what might happen under a Trump Administration and sessions department. But they are liking to move in a more First Amendment friendly movement. Things can happen once your chairman and subject to the political pressures of that role, and weve seen chairman talk a good First Amendment game in the past when push comes to shove be more restrictive but im very hopeful about that. So i think well proceed by people wanting the floor and taking it in a normal conversation and well see how it goes. Ti ill do some time, matter place stuff if you want to. About the u. K liable laws, i agree that the British Press is not bad and are doing quite well within the friame work of the current liable laws but in fact have been changed a bit and ten or 15 years ago, russian and Saudi Arabian bill nionaires we to court to suppress information they didnt like. Theres a u. S. Citizen who published a book on financing terror and she named Saudi Arabian billionaire in her book and he sued her in u. K. Court, and she was in fact convicted. I think three books were sold on the u. K. Amazon. Com and she couldnt go to u. K. And i think Congress Passed the law to make it clear that she couldnt be prosecuted in the u. S. , so these liable laws are in fact being used to suppress critical information. Suppress lives or suppress truths, i dont know so i cant comment. But i do get into conversations with people in this country the subject of cato, and often comes down to you care we have the First Amendment and you dont have it the same way and therefore again youre iran and that seems to me to be a piece of may i say First Amendment fetishism, its not the case that you could easily compare freedom in one country versus another one, but if you do which is something cato does, and if you like freedom, then were you given the chance to swap all american laws and the constitution and the First Amendment, or the Canadian Parliamentary system and liable 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 the countries ahead on that list, all of them are mostly countries with briti british common law, canada, by the way has the most proplaintiff liable laws anywhere, theres a tendency to look at laws in isolation, canada has extremely navy friendly liable laws and the United States is just the opposite. American procedural law rarely becons them to come to court. The differences may not in practice be all that good, but in general they matter. I discuss this im not practicing but assembled this group called scholars and writers for america, i thought it would be amusing to find people calling themselves scholars supporting trump, then what happened is the press went through the list trying the find dirt on the person, and found dirt on one person, 30 years back one had been smeared as a na nazi sympathizer, you would realize the charges were ridiculous, was cleared, but nevertheless smeared the story on this nasty list and wouldnt this be a Good Opportunity to put them out of business and i discovered by putting her name on the list, she is now a public figure and the New York Times and theres no such thing as new york city and sullivan, and the canadian courts decided expressly not to follow that decision, and i regretted that, you know, if one did a momentary search on the internet, you would have discovered that there was a story then these ten counter stories and it would have been just too complicated to do, so i regret that. Yes, there are times where i will mention this one last thing, i dont know about the case you mentioned, but there are cases where its important to vindicate truth. As you mentioned, british courts the david irvine case, he is a holocaust it was austria he was convict today ed to a prison term. But im talking about the liable case in britain. I sort of know what happened in the holocaust but will approach it with a fair and open mind and having read all the material i determined that david irvine is and has to pay up to 200 Million Pounds and truth becomes an important thing to vindicate in all of this and that which gives newspaper writers so sort out truth is not always a bad thing. Let me jump in in arguing about Campaign Finance and free speech issues for a long time, one thing ive noticed is people generally believe that lives should not be permitted to be spoken. The only problem is that generally speaking, everybody believes what the other side is saying were in a bu f bifurcated rule here. Somebody could see it differently, no, even people who are supposed to be in favor of the First Amendment Campaign Finance issues i 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 have really created some justifications for First Amendment or free speech violations or limiting free speech. Thats why having government be the arbiter of truth, if youre talking about private litigation as in the case of liable as trying to set that bar is why the new york city versus sullivan developed the way it did with a strong presumption that it is up to the plaintiff to demonstrate the statement is false and reigned about with other constitutional canada, i like their syrup and they do have different liable laws, but i think it would be an extraordinarily bad thing to try and import here. Thats one of the reasons why i wasnt so worried about candidate trump talking about opening up the liable law as, one he didnt have the slightest idea what he was talking about, second i dont think he was going to find judicial appoint e appointe appointees, and if you look at neil gorsuch, you have a rather strong case in media and defamation cases so im not so worried about President Trump fulfilling promises in terms of candidate trump. And i speak as a former journalist myself, so i know a bit about the daily rigors of trying to find a story and to make sure that its 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 and that was alvarez versus the United States, and 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 it is 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, and frankly i think the current inhabitant of the oval office would have to worry about it as well, but we learned the hard truth which we are all trying to learn about by standards of truth with newspapers that its inkpa incompatible with our truth system. Let me assure you, john, theres no ministry of truth in england or in canada. And if you listen to parliamentary debates in either country you would realize theres a pretty big latitude but it is certainly not the case if you are in a free society that youre going to start stomping on people playing politics, right . And thats the point really, isnt it . Again, if youre trying to judge liberty, it depends so much more on the attitudes that everyone understands in society of that which is permitted and that which isnt and if you are in a liberal society which you know most western countries are, you understand that instinctively without having informed by a First Amendment expert. And you know when you go to these other countries youre in a free country and you know this because the people in the country are not the poll titici in the country and not the courts in the country, so i guess i am somewhat synthetic to the argument that maybe we should just blow up all liable law. I teach contracts law, but you know and i like it because its about private but i would feel really uncomfortable trying to teach about securities regulation, which i dont like, it would be like an aathiaist. Theres all the new media, youre not going to go after because theyre a judgment group and in the end does it matter what a rag like the new republic has to say . I say that not because i only sympathize with the duke of wellington, but dont have the greatest respect for the american judicial system when i think of a case like the michaelman michael mann lawsuit. It was supposed to be shut down by the slap act. Its an its an acronym. It goes on and on and on. Might it not be better just to get rid of the whole damn thing . Im persuaded in as much as i do think liable laws work in canada, maybe theyre not suited for america and if you can think you can export laws like that then you make madisons mistake in quoting the celebrated mont sk montskew and the separation of powers, what madison didnt understand was that before mont sk montskew was a political theorist, i was a sociologist, the appropriate set of laws for america might not be those of another country. If you blew up liable law President Trump would have no recourse except his twitter account. Ill mention, 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 liablist as to trump. But do you believe that the truth should be protected by the First Amendment . There are circumstances where as in the david irvine case with the result, and you know in general, i guess a certain amount of skepticism does make sense. I used to read the newspaper each day looking for mentions of himself, for people to sue, you know . He would say judge and jury must decide. Well, there are kind of liable trolls that way. But you know mostly the system works pretty well. You dont have people going around looking to sue other people for liable unless youre michael mann. Or donald trump. He has a long record of suing people and losing but doing so for strategic purposes to bankrupt journalists or punish someone and its becoming an increasing tactic simply to use it even though theres no expectation of winning. And its being increased because the media are not as well funded as they used to be, so the economic weapon has happened in the gawker case with 140 million i guess pledge might mean that the media would back down if they sense that would not be able financially to make it. And this is what is going on in less free societies where the powers that be go after newspapers, where you have wealthy politicians to shut down the media with this liable suits and economic weapon. So, your mention of the media remind me of your initial comment, which is about the declining trust in the media, and actually i read a the 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 and it has been over the last 30 years its thats the same question, and this i think is people, some people argue this is connected to the idea of the president Obamas Administration could do these many leak investigations, which was really had to have thought of intimidation affects on the press, they could do it because nobody trusted the media and not particularly wellliked. Does that matter . Should we care about whether the most corporate or most organized institutionalized part of the First Amendment doesnt have much public support . Absolutely. I think thats very important. Doesnt mean they should crit c point to inaccuracies and failures, but it is important to democracy and trust that these be the presidency, the courts, the media is important to living democracy, so i do believe that and i do believe trump when he calls the media the opposition is contributing to the underundermining of trust be it is based on the notion that of course the media has its own biases but you treat the opposition in a different way than you treat the media. So i think thats quite unfortunate and i think that a more fundamental thing when it comes to trump and free speech and the right to free inquiry and so on and so forth is the following, i think many years ago it was said that everyone is entitled to his opinion but nobody is entitled to his own facts and thats not true anymore. Now we have alternative facts. And, this goes to the heart of what Jonathan Roush has called the liberal signs model. The fact that the Enlightenment Foundation our society is based on the notion of right to free inquiry 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 add adjunct to arguing for free speech, the more back and forth, the better, a result we will achieve in the end. And is that still the case . In a situation where we cannot agree about what is a fact and what is not a fact . There in lies the problem and john, the question you asked is a very, very broad one, i dont know that 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 that you had expert gate keepers, the largest organizations whether the broadcast networks or major newspapers that serve that gate keeper function sometimes well, sometimes badly, but as media has become more democritized, they have strength to stand up from other institutions, you have less trust because media sources have become more diffused then it becomes more incumbent on 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, cant just trust on an authoritative source to tell you as existed in the previous media model and so 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 you know the 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 information so that every individual has access to a Global Platform but also made it so that the average reader, the average viewer has no real anchor for determining what is real and what isnt. Well, let me step in right now because 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 story, yeah sure two of them on the front page then of course the sometime section, the book review section and the sports section, i never once saw an antitrump story in the weather reports though, so ill give them back. In the future theres going to be essays and books written about what happened to the media the last year, and the media flipped the bird to about half its readers and the readers who didnt like being called deplorables and who didnt think they were simply clinging to their guns and their religion, they went to other news sources an theyre out there so were getting that kind of competition. The suggestion that theres one simple holy purveyor of truth which happens to be the New York Times or Washington Post, i think it is hopelessly naive. I dont think it is going to be cured by some judicial some school of journalism courses on whatever. I think it will be curative by the market. I think at some point newspapers, maybe the times is trying to do this i think newspapers will wake up and say, look, you know, there are other people out there and they have some theyre not all bigots. And, you know, they kind of resent it when they were called bigots. If you call them that, theyll tell you to take a hike, right . And 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. I think the difficulty here is viewing this as a political game, where youre either on one side or the other. Frankly i found both candidates deplorabl deplorable. You know, thats part of the problem. You have a system that is geared toward a duopoly presenting a limited range of political views and it is really not a question whether or not the media is for one candidate or against one candidate. It is really a question of having some way of getting information out there that people can trust, and that is vetted. A lot of those people critically evaluate the information presented by whatever party wants to exert some kind of rule. But because what youre talking about is opinions and i agree with you that the media has contributed to the undermining of 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 affect and what is an opinion . I think it was bloody stupid. Yeah, but it is more than stupid, i think. We have 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 . No, nonsense. It is not the government. It is not the New York Times. Absolutely it is a lot of alternative sources. Thats why i said the liberal science model as roush calls it is based on these two principles, no final say, and no personal authority. Exactly. It is you have to put forward your arguments and they have to be checked in the public and knowledge production and production of facts is social process. It is breaking down when we 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. Doesnt mean the final truth, but at some point in the process. And i believe that is really it is a deeper problem. And if it is not only about trump. It is it is a general cultural process that is going on, i think. Let me push this off in slightly different direction. Is the problem actually anonymity, right . Not only just the anonymity of violence, like we saw in berkeley, thats pretty typical. But the fact that so much of this speech that has taken place of the older establishment media, which i agree with, frank. I think the role the question is sometimes people that dont actually have much use for the First Amendment, like a lot of the establishment media, we might have to support them anyway because thats what is the right thing. I would say, the whole question of anonymous speech online is in large part the replacement for that, and it is also part of the question of facts and so on. The old joke, you know, on the internet, nobody can tell if youre a dog both outlets like breitbart . No, the anonymity question is the one i raised, right . The anonymity is that you can this is sort of goes back to the libel question, thats part of the issue, right . People can attack others or they can suggest, you know, guy showed up at a with a gun at a pizzeria near my house, with no facts, really, to support him. Our argument always is, and im just throwing this out there, im not giving up this argument, is more speech. Thats Justice Roberts argument, thats what Justice Roberts said in Citizens United. The answer Justice Kennedy said, more speech. Is it working with the replacements for these . Breitbart is not anonymous speech. I wasnt able to tell, though, from your question, whether or not you were in favor of anonymous speech or not in favor of it. I think we have a strong constitutional tradition that goes back to the founding that is predicated on anonymous 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 the First Amendment does protect anonymous speech. That being said, anonymous speech online can lead to problems, you know, as i was saying earlier, there is the joke, on the internet, nobody can tell if youre a dog, they can tell right away if youre an ass, though. And so there is a lot of that going on and a lot of trolling. People feel like because they are behind the veil of anonymity, theyll just say anything. Thats just something we have to put up with. Because the answer in the end is more speech. Im getting you guys stirred up. Im in favor of it too. We should do one quick plug because fleming was mentioning Jonathan Roush, for those of you who havent read it, his book is kindly inquisitors where he talks about it being an ongoing debate, nobody has special privilege and the debate never ends. Yes. Is the answer more speech and you referred to the incident with the pizzeria and it plays into the deep about fake news. And that is also a challenge right now. If i may just talk a little bit about what is going on in europe, where i come from, on this front. In europe, there is an increasing pressure for criminalizing fake news. And it means in fact administer the 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 social democratic part and Christian Democratic Party that want to equalize fake news to hate speech up to five years in prison. And if facebook disseminate fake news and does not take it down within 24 hours, they can be fined 25,000 euro. 500,000 euro, which is 500,000. The antitrust minister of italy has come forward with a proposal. He wants to coordinate from brussels the fight against fake news. And interesting thing is that the majority of these politicians, they identify the populous parties in europe as disseminator of fake news. So it is, in fact, a quiet transparent way to go after your political opponents. I would not recommend that the United States and im quite sure you will not go that way, but but it leads to situation where you will 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. I am 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 road. 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 online, so please wait for that. A person will bring a microphone. Here, just on issues that we just have been discussing, we ask usually the people announce their name and affiliation. If you dont want to, though, thats fine. For some reason youre going to be on tv anyway, but please, above all, make your comments in the form of a question. Lets begin with ill be very rude, by the way, just point at people since i dont know your name. The lady in the middle, yes, still has her hand up. I will try to get to everyone. Hi. My name is rachel, im a journalist and one who is very concerned about press freedom issues. My question has to deal with dangerous speech, incitement of violence. People say dont cry fire in a movie theater. Im wondering how that old adage applies to the digital age or just the state of heightened the heightened spread of news and also heightened polarity. Im thinking someone wants to burn a koran, we know 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. And the people who disseminated the fake news story about the pizza parlor sex ring, you know. 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 . Someone want to get that . Start with when Oliver Wendell holmes wrote that line about shouting fire in a crowded theater, he said 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. And 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 Oliver Wendell holmes evolved after that point to be more speech protective and so that the standard that was established showed 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. So the First Amendment was very protective. Now we face the situation, second part of your question, 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 would say online. Then you lost freedom of expression. And so were simply going to have to be able to deal with the fact that people are going to get upset at what they see or hear, whether it is 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 the sort of it is like grade escalation, we talk about threat assessments. People talk about having safe spaces, and wanting to be protected from, you know, any kind of upset and what it led to is the presumption by some there is some kind of right never to be offended. And if that becomes the standard, then the First Amendment is history. Yeah. Can i just i mean, i was involved in the crisis and some issues that you that you raised in fact also informed the dthe debate back then and some people say you should have known and shouldnt have published those cartoons. I think a couple of points. The interesting thing here is that all the violence during the cartoon crisis in 2006 transpired in countries where individuals citizens did not enjoy freedom of expression, where they did not have the right to publish cartoons. While there was no violence in democracies where this was not a criminal offense, that is freedom of expression, and tolerance 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 kind of things. The more fundamental argument is that if you understand human beings as autonomous individuals, able 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. And if we ignore that human capability, we are undermining Human Dignity and reducing human beings to animals or to immature children that are not able to think for themselves. I think there is a clear distinction to be made between inciting violence, urging people to burn down something or other, which seems to be a bit of that these days, and speech which merely offends people. And 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 fig leaf by which that person thinks he has the privilege to become violent. Same argument was made, though, about flag burning, right, that one of the reasons why the government felt that it could prohibit that as a form of protest was because they said there would be violent reactions. And 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. And also i think i think there is a responsibility of the media here because tara jones talked about in florida, he had a segregation of 50 people. And 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. And 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 seize his constitutional rights, without being aware in fact it may be prudent to ask the pastor not to do it, as president , you have to protect u. S. Citizens right to exercise Civil Liberties and among them, the right to freedom of expression. And i think that is real slippery slope, not only happening here, also happening in europe, when individuals do things that may create angry response on where else in the world. They call on them not to go ahead without being very clear about what they really are doing. They are asking citizens to seize their fundamental rights and celebrities in a democracy. I dont think they should do that. Gentlemen, four up and two this way from the bottom, right there. My name is steven shore. My question is does the president know that were having this discussion . Watch your tweets. A good friend of mine works in the nsc and probably does. He could be watching. Gentleman in front here. Now, there is more than one. The man in the middle. Using the random process. Herb rose. I come from a background where my father wrote read one newspaper on the way to work, and he took the subway, and he read another newspaper on the way home from work. In my high school you could get a subscription to the New York Times, Something Like 25 or 30 cents a week for the daily newspaper. So i come from a background and a time when people read newspapers and were concerned with what the media said, and this was also the early days of television. Today you say that in the post truth era, it is up to the individual to seek out the truth, to determine what sources are reliable. I think besides the people in this room, that represents a minority of people who form opinions. How do you encourage and increase the number of people to seek out reliable sources of news and information . Im not sure i know the answer to that question. I mean, i think starts 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, i would love to hear them. Think of one thing, you can think about American Kids do on psat tests, compared to other countries and the fact as we do terribly. And our k12 schools fail students miserably. So and then all the distractions from television and the like. You can start with better schools. I think that 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, is not only about seeking reliable information, it is about exposing yourself to points of views that you dont like because social media the algorithm of social media is created in a twway that it will seek confirmation bias if you like and share, you know, the things that fluctuates 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 couldnt believe he could win because they didnt know that there was anyone out there, and 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 phenomenon. 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 it is being accepted by his community of interpretation. I would Say Something let me say one little thing. There seems to be an assumption that most of our problems would be cured if people spent more time thinking about politics and reading about politics and listening about politics and sometimes dont you think you had it up to here . Yeah, i do. But im talking about not just politics. Im talking about life. Im talking about, you know, arguing over who best band is you want to listen to. Everything else that goes with it, the best restaurant. Politics is part of life, but not most important part of life. And what is i mean, talking about having it up to here, i was laid up with a broken leg through most of the fall. 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 rolls around, i couldnt listen to another minute of it. But when people talk about free expression, there is an assumption that it only has to do with electoral speech and political speech. And, you know, 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 of 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 to allow people to form their ideas about how they want to live. And politics is just a game we play here in d. C. It seems like it is also get ready for this, ill Say Something good about trump, and obama. I dont know if that happened before. But President Trump has done a good thing in the sense hes got a lot of people interested in politics, but more than that, he got them motivated and got them to believe that there could be 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. Now he got them to believe in a certain way, right, so the other side in other words, being motivated, mobilized into politics, you start as an advocate and meet with others and you argue with others and so on. And you have to take them seriously and there is a development of a kind of civic capability there. So President Trump got that going. But i think i would like to see is Something Like where the 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 this is a guy that gives as good as he gets and can put it in that context and all that stuff, but something positive could really follow up on his initial mobilization of these people who could become better citizens under the First Amendment. And yet his impulse in hearing about the situation in berkeley was to send out a tweet saying deny federal funds. You know, while i appreciate the fact he was saying good things about freedom of expression, and 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 view how you view contrary ideas. Fleming, you were talking about this, saying that the problem is everyone has their own biases reinforced. And 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. And we should have particularly in the university setting, throughout society, a more welcoming attitude toward ideas you hate, you any, so you can engage in that robust give and take, and were not seeing that now with the polarization, what were seeing is shouting matches. Let me just follow up in that very briefly. One of the greatest threats that seems to me to free speech comes from universities and particularly universities, nearly all of whom, have their offices of 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 they were loyalties. At point it was places like the New York Times that came out in favor of free speech and people like william f. Buckley , who wrongly, i thought, defended loyalties. I agree with you there. Just we havent met before, but i spend half my time litigating First Amendment cases on college campuses. I can tell you that it is what would you call it, a vast bipartisan conspiracy to restrict speech regardless of whether it is conservative or liberal. My cases 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. And it is a very unfortunate trend and fortunately our constitutional protections are strong in that area. The woman on the aisle about four or five in. Showing an intense interest, which leads to good questions. My name is maddie pavik, a student at American University where there has been some flag burning last semester and considerable protests. And im also from minnesota where there is 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 and i wanted to get your opinion and perspective on that. On what . On flag burning . Let me Say Something about flag burning. I think it is not improper for a country to promote a sense of nationalism. I recognize that nationalism in other countries can be extremely dangerous. I think there is something benign necessarily about american nationalism. To understand that, you have to understand what it is which makes people american. It is not race. It is not religion. Rather it is allegiance to some fundamental documents as espoused in the declaration and the constitution and the First Amendment and some speeches by Abraham Lincoln and thats what makes you an american. And thats what makes a refugee an american. Once he comes here, and comes here because he believes in those kinds of principles. And part of that involves the supremacy of those principles over the symbols like the flags. 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 that, the flag burning case. Of course, you know, if you want flag burning, the best thing you can do is prescribe it. Thats when youll see it, right . Thats right. The wave of flag burning that took place after the Supreme Court upheld the First Amendment right to protest using the American Flag was unprecedented. They dont burn flags elsewhere. No, and if koran burning is protected by the First Amendment, flag burning should be as well. In denmark, where i come from, flag burning of flags of other countries is a criminal offense. It is not a criminal offense to burn the danish flag. And were a National Party when the danish flag was being burned, also wanted to turn it in a criminal offense in denmark. I just want to revise what i said earlier. The wave of flag burnings came in the wake of congress trying to correct the Supreme Court that when it was going to be made a crime, then it became very attractive to do. To go back before the next question, both president ial candidates presumably supported criminalizing the gentleman right in the middle. Please wait for the microphone. Bill bush, do ask, do tell. Com. Let me go in a slightly different direction. Talk into the mike. Yeah. Can you hear . Okay. I think there is a law of section 230 of the Communications Decency act which helps protect Service Providers from downstream liability. This, i think is this likely to come under assault during the Trump Administration over issues, the misuse of the internet, the cyberbullying, the terrorist propaganda, child pornography, sex trafficking, the back page case. Do you think i think that could be a serious threat to the whole system of user generated content. In europe, they dont have a strong protection of downstream liability as we do in the u. S. I thought that might get mentioned this morning, no one mentioned it. By the way, i dont have a problem with anything milo says. Milo yiannopoulos. Little surprised i never wanted to throw that out. He hasnt been mentioned this morning. I wanted to throw that out too. I havent heard anyone from the Trump Administration talk about section 230 specifically. First, for the president to Say Something about it, someone would have to explain to him what it is. But and i dont think he would think it really affects him. I think there is constant pressure on section 230 since it says that if you are an internet platform and host the speech of a third party, youre not going to be held liable for it. It was almost an accidental protection that congress adopted when it was really setting out to regulate the internet as if it was broadcast television. But, anyway, that provision remained. And it has been an important driver of Internet Freedom because otherwise if youre the platform, youre going to be liable for speech that somebody posts, then youre going to have to be responsible for millions and millions of postings if youre facebook or youtube or back page. Com, and, you know, under those circumstances nobody is going to tate risk ing ting posting anything. The internet is wide open , there is speech that people object to. As a consequence, there is a constant pressure to revise section 230. Youll hear talk about that in congress, as i say, i havent heard the white house talk about it. I think section 230 is secure. And, by the way, section 230 is backed by First Amendment protections so even if it didnt exist, i think First Amendment principles that are enshrined in section 230 would also be enforced by the courts. I would just say on the end of it is speaking on behalf of my colleagues at the Cato Institute, i suspect, im sure that everyone that works with me does not in fact agree with milo and the things he says. The same time, im certain that my all of my colleagues believes he had the right to say all of it. And the government or to put it another way, the government had no power including someone at berkeley, which, by the way, the Berkeley Administration behaved seemingly pretty well from what we can tell. So there is two different things, always important, government doesnt always have to be to limit government you dont have to be favoring what is said, thats crucial, i think. Now, gentleman on the aisle here. Im trying to go over get everyone. Thank you. Ca im interested on the thoughts on how donald trump uses twitter, and im youre megyn kelly or twitter and his public pronouncements, youre megyn kelly, you can look after yourself. If youre boeing, you can look after yourself. If youre a journalist, from a small newspaper, or youre just a private citizen, who gets attacked on twitter, 3 00 in the morning, 4 00 in the morning, 6 00 in the evening, you maybe dont have the resources to protect yourself against Death Threats or bad anonymous telephone calls or attacks by other of mr. Trumps followers, 20 million, i guess. So im wondering whether that has an impact on free speech and in the sense that private individuals may be reluctant to say what they think, especially on social media, because you dont know who is going to attack you. May not be the president , but the tone that goes to social media, president is not first person to do this, but there is a lack of civility that the president of the United States, by his own action, seems to endorse, condone, and indeed participate in. I agree [ applause ] well, let me Say Something for trump. Right. Actually, what ill say is something about the american constitution. What it lacks is that which madison described as filtration. In other words, a system in which only the best would rise to the top and he thought this would happen when you had a president appointed by congress. Madisons ideas about the constitution were, in fact, adopted. He is the father of the constitution, the canadian constitution im talking about, his filtration system is a system of parliamentary government, and so here you have the paradox that you have president s who arent filtered in that way, who dont have the experience of standing up before the opposition bench, for years and years and honing your skill, right . You dont have the kind of 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 who you are trained to revere. Now, look, i think politicians, nearly all of them, are about the lowest but of your constitution, speaking as a foreigner for the moment, in your constitution, somehow you got to revere these guys and if there is a tragedy that requires a president ial healing speech over which peggy noonan will draw up a few tear and if there is something glorious that requires a president ial medal, it should be done by prince charles. We have a system here too, and we use Reality Television to filter our they dont give up their twitter accounts once they get elected, which is the problem i think you were talking about. It is a problem. But i dont think i would connect it necessarily to social media. If you had a new president elect, who would have a nightly News Conference and single out individuals, and say, i hate that person, or that person is a loser, then i think you have the same problem. The fact is the president has used his twitter account to single out companies, individuals he doesnt like and there have been really unfortunate consequences. I actually heard a story, 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 now retire. And he was serious. I dont know if this was true. But he was serious, saying he had this person he knew who developed a system of following trumps tweets, and making trades in the market based on those tweets. So that he could tell if a stock was going to go up or down depending what the tweets were. In six months, the guy is going to retire. Again, i have no idea if this is true. But i wouldnt doubt it. Yeah. I will agree with bob. I dont think it has anything to do with the specific media and it is a general challenge. But i think it is i mean, we are still living in a liberal democracy, institutions protect our right to speak out, so this is a question of of individuals making decisions to speak out. I mean, it is not anarchy. It is not a jungle. You can speak out. Yes, it may take some courage, but without doing any comparisons, it is the same with terrorism. I mean, the way you fight terrorism is by not letting you being terrorized. By doing that, you reduce a terrorist act to symbol criminality and not not to take out the political content of it. So if people just sit back and feel intimidated, do not speak out, of course it will have consequences, but so it is up to everybody to make up their mind, what they think about it and react. So, follows from that, we all have done our bit to fight terrorism today because we have all sat in a room for an hour and a half now for fleming rose. I want to thank each of you for coming today. I hope you enjoyed this. I thought it was a very good discussion. You can continue the discussion upstairs during our lunch, which you go to the end, go up the stairs, the second level, to the George Yeager conference center, the restrooms are on the second floor, on your look for the yellow wall when youre there, and i want to thank our guests. Fleming, bob, and frank. [ applause ] good job, gentlemen
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