- Welcome to the Morrison
Library and welcome to the
free speech movement
educational programs committee
program with Dean Erwin Chemerinsky.
I hope that's not me.
I want to thank you, everybody,
for coming out this evening.
We're very pleased to have
Dean Chemerinsky with us
here this evening.
My name is Gene Ferguson
and I'm chair of the free
speech movement educational
programs committee.
Just to tell you a little
bit about what these
programs are, they're
designed to engage students,
faculty, staff, and visitors
with the issues of the
free speech movement and
the wide range of activities
movement hoped to inspire.
Including contemporary
expressions of free speech,
activism, and social change.
We hope to inform and
entertain as well as engender
debate and discussion on
a wide range of topics.
Our committee, our wonderful
wonderful committee is
made up of librarians and
library staff here at the
university library who are
passionate about free speech.
And we, I want to make a
plug, that we love to work
with student groups.
So if there are any students
in the audience who have
a group or are interested
in bringing a speaker to
campus that has some
connection to social justice
or activism or free speech,
we'd love to work with you.
So we're pleased this evening to host
Dean Erwin Chemerinsky in
honor of constitution day.
So we traditionally hold a
program, usually in September,
but this year we moved
it to October to honor
constitution day connected
with the free speech movement.
I want to make a quick plug
to say that Dean Chemerinsky's
book, this is not the
beautiful cover copy,
I'll show you the cover.
The cover is right here.
So his book, Free Speech on
Campus, is available here
in the university library.
I've checked it out right
now so I need to return it
so you can come check it out.
And I encourage you to do so.
So I'm gonna hand it
over to Chancellor Christ
who's going to introduce
our speaker this evening.
(applause)
- Thank you, I'm delighted
to welcome you here tonight.
Originally we wanted to
do this program in the
Free Speech Cafe, but we
were afraid that there were
too many of you, as it
turns out to be the case,
to fit in the Free Speech Cafe.
So we're here in this
wonderful Morrison room.
I am so delighted to introduce
Dean Erwin Chemerinsky.
He's the new dean of our
UC Berkeley's Law School
and previously he was the
founding dean and distinguished
professor of law and
Reymond Pike professor of
First Amendment law at the
University of California
Irvine School of Law.
He was born in 1953 and
he's an American lawyer and
law professor.
He's a prominent scholar
in the United States
constitutional law and
federal civil procedure.
As I said, he was the
founding dean of the Irvine
Law School, which is extraordinary.
I don't think the chancellor
at Irvine has yet forgiven
Berkeley for our recruiting him here.
Prior to assuming the position
at the Irvine School of Law
he was the Austin and
Bird professor of law and
political science at Duke University,
and before that he was a professor at the
University of Southern
California Law School,
including being the Sydney
M. Emiss professor of
public interest law, legal
ethics, and political science.
He's the author of 10 books,
including the Case Against
the Supreme Court and
two book published by
Yale University Press in 2017,
Closing the Courthouse Doors,
how your constitutional
rights became unenforceable
and Free Speech on Campus,
the book that you just saw
the cover of.
I read it, it's a wonderful
book, I really strongly
recommend it to all of you.
He wrote that with Howard
Gilman, who is the chancellor
at Irvine.
He's also the author of
more than 200 law review
articles and he writes
a weekly column for the
Sacramento B, monthly
columns for the ABA Journal
and the Daily Journal and
frequent op-eds in newspapers
across the country.
He frequently argues appellate courses,
including in the United
States Supreme Court.
It makes me feel exhausted
even just to read all of that.
In 2016 he was named a fellow
of the American Academy
of Arts and Sciences and in
2017 National Jurist Magazine
again named Dean Chemerinsky
as the most influential
person in legal education
in the United States,
that is really a big deal.
And what I was to say, in
closing, is I don't think when
Erwin accepted this position
he thought that the spotlight
would be on him in the
extraordinary way that it is
because of the issues
about free speech that have
arisen on this campus.
I feel so lucky to have him
as an expert and advisor.
He has been extraordinarily
generous with his intellect,
with his time.
He's done many programs
on free speech for us,
including one on Orange
County just last night.
We're really lucky to
have him here tonight.
I've heard him speak,
now, a number of times and
you're just in for a treat.
So I'm delighted to
welcome Erwin Chemerinsky.
(applause)
- Wow.
Thank you so much for that
incredibly kind introduction
and the really warm welcome.
It's truly my honor and
great pleasure to have been
invited to speak here tonight
and I have to tell you
I am just thrilled to be at Berkeley.
I think chancellor Christ
can tell you that when she
called to offer me the
position on April 27th I
essentially agreed and
accepted on the spot because
I am so delighted to have
the chance to be here.
I wish the campus didn't
have to go through what the
last couple of months have
been, but from a selfish
perspective the silver
lining is that I've gotten
the chance to work with
chancellor Christ much more than
a new dean would get to
work with the chancellor
and it has just been so
wonderful and, tell you at the
outset, I think chancellor
Christ has done a truly superb
job of balancing the need
to protect free speech
with also the need to assure
the safety of students,
staff, and faculty.
Let me put that statement,
though, in a broader context.
A year and a half ago, in
the winter quarter of 2016
chancellor Howard Gilman
and I co-taught a seminar
at the University of California Irvine.
It was for 15 freshman,
they were all very serious
learners, they took the
material with great care,
reading all of the assigned
material and participating
in the discussions.
And we began each topic
by posing for the students
a real world problem and
polling them as to their views.
We began the first class by
describing an incident that
had occurred at the
University of Oklahoma a year
earlier in the spring of 2015.
It involved a group of fraternity
members who were on a bus.
Only fraternity members were on this bus.
They were all dressed in formal wear.
Two members of the fraternity
lead the other fraternity
members in a chant.
The chant was racist,
it was deeply offensive,
it spoke of lynching in a praising manner.
A member of the fraternity
took a video of it on a phone,
it quickly went viral.
The president of the
University of Oklahoma,
David Borin expelled the
two students from school,
he suspended the fraternity
from operating on campus.
We asked our students to
begin the first class,
if the expelled students
had sued the University of
Oklahoma claiming that
their first amendment rights
were violated, who should prevail?
The students or the university?
I think chancellor Gilman
and I were both surprised
that all 15 students in
the class came down on the
side of the university.
Not one of the students
was willing to speak out
in favor of the free speech
rights of those been expelled.
I can tell you as a matter
of first amendment law,
had the two expelled
students sued they clearly
would have won in court.
In fact, not long ago I was
at program put on by the
Office of Civil Rights at
the Department of Education
and one of the participants
was the general counsel
from the University of
Oklahoma and he said that the
university, including his
president, knew that what they
were doing was violating
the first amendment,
but they felt important to take the stand.
Time and again over the
course of the quarter we saw
our students coming down on
the side of the university's
power to punish, even severely
punish, expressive activity.
We're surprised that rarely
did we have students at our
seminar who wanted to stand
up for freedom of speech.
We taught the seminar again
last winter, this time it was
a political science honors
seminar to juniors and seniors.
We saw the exact same thing.
We realized that what we
were observing reflects
a national phenomena.
The Pew Institute did a survey
of undergraduate students,
and it came out two years ago,
and 40% of the undergraduates
surveyed believed that
offensive speech on campus
should be able to be punished.
Chancellor Christ did a panel
of faculty members about
free speech here about a month ago.
And it was stunning to me,
perhaps some of you were there,
how many of the students
and faculty in the audience
and even some of the
faculty on the panel were
saying that the chancellor
shouldn't invite hateful
speakers or allow them to be on campus.
So this is different that
what we would've usually
expected.
I think our image of free
speech on campus was so shaped
by the free speech movement
at Berkeley in the mid 1960s
where it was students
wanting to speak on campus
and the administration stopping them.
Some, in major publications,
have used this trend
that I've just described to
criticize this generation
of college students.
I don't share their criticism.
I find the desire on the part
of current college students
to create an inclusive
learning environment for
all students to be quite (mumbles).
This, after all, is the
first generation to grow up
being taught that bullying is wrong.
I admire them for internalizing
that message and wanted
to create protections for
all of those on campus.
Also, you have to realize,
this is a generation that
hasn't seen serious threats
to free speech from campus
administrators and the government.
The anti-Vietnam War protests
or the civil rights protests
of the 1960s and 1970s
were as long ago for this
generation of college students
as World War I was for me.
And to be sure, the
context has changed now.
As I said, the free speech
movement, which our image of
speech on campus involved
students speaking,
administrators trying to stop it.
Now often it's outsiders
wanting to campus,
people like, as we've had
here, Milo Yiannopoulos,
Ben Shapiro, Ann Colter.
And outside groups like
Antifa, engaging in violence
or threatening violence against them.
The campus, at times, seemed
to be much more of a stage
for all of this than anything else.
I've now been part of many
discussions of free speech
on campus here at Berkeley
as well as in other places
around the country.
And I think it is so important
as we talk about free
speech on campus to separate
a discussion of what the
current law is compared to what
we think the law should be.
I remember in the panel last
month that chancellor Christ
put on, emphasizing to the audience.
We can talk about what the
law is or we can talk about
what the law should be, but
those are two quite separate
conversations.
Well in our book we especially
want to focus on what
the law is, but we also
give our views as to what
the law should be.
And I really want to focus
tonight on telling you
what is the law with regard
to free speech on campus,
as we describe in this
book, as it applies here in
Berkeley.
I want to do so briefly so
we can spend most of our time
together with your asking
questions or making comments.
I can summarize the current
law for you in three
basic points.
First, all ideas and views
can be expressed on a
college campus.
Period.
Above all, the Supreme Court
has said that the first
amendment means that the
government never can sensor
speech or punish speech,
create liability for speech,
based on the viewpoint expressed.
Under the first amendment
there's no such thing as
a false idea.
Of course, the first
amendment applies just to the
government, just like
all of the rights in the
constitution apply just to the government,
but there is a law in
California, the Leonard Law,
that says that private
high schools, college,
universities, cannot punish
speech that the first
amendment would not allow
to be published by a
public school.
So in California the
distinction between public and
private matters much less,
though keeping in mind it's
the first amendment that
applies in a public university
like this, it's a California
statute that apply at
a private school, say like Stanford.
The Supreme Court, in saying
that all ideas and views
can be expressed is
emphasized that this includes
offensive speech.
In fact, even very deeply
offensive speech is protected
by the first amendment.
You might remember Supreme
Court earlier this decade,
it was called Snyder vs. Phelps.
It involves a small church
out of Topeka, Kansas,
the Westboro Baptist Church,
they made it a practice
of going to funerals of those
who died in military service.
They used the funerals as
the place for expressing very
vile anti-gay, anti-lesbian message.
Matthew Snyder died as a
marine in military service
in Iraq.
The members of Westboro
Baptist Church traveled from
Kansas to Maryland where
he was gonna be buried.
Before the funeral they asked
police officers where they
could lawfully stand.
The officers pointed to an
area about 1,000 feet away
from where the ceremony
was gonna take place.
Before the ceremony they chanted and sang.
During the ceremony they were
silent, but held up signs.
That night Matthew's father,
Albert, was able to watch
the news and read the signs.
He was deeply offended.
He was terribly upset.
He sued the members of the
Westboro Baptist Church
for what's called intentional
infliction of emotional
distress and invasion of privacy.
A jury awarded him $10 million in damages.
But the United States Supreme
Court eight to one ruled
in favor of the members of
the Westboro Baptist Church.
Chief justice John Roberts
wrote for the court and he
said emphatically what I
said to you a moment ago,
"The government never can
punish speech or hold it
"liable on the grounds
that it's offensive,
"even deeply offensive."
All ideas and views can be
expressed on a college campus
no matter what.
This leads me to my second
point, as you understand the
current law.
And that's that free
speech is not absolute,
there are some categories
of unprotected speech where
the government can sensor or punish.
You've all heard the famous
quote from Justice Oliver
Windell Holmes where he said,
"There's no right to falsely
"shout fire in a crowded theater."
Since 1942 the Supreme
Court has said the way it's
gonna approach the first
amendment is to have categories
of speech that are unprotected.
So, as you all know, child
pornography is a category
of unprotected speech.
As you know, false and
deceptive advertising is
unprotected speech.
The government can punish
those who possess child
pornography, who engage in
false deceptive advertising.
There are three categories
of unprotected speech that
are relevant to college campuses.
One is incitement of illegal activity.
The Supreme Court law has
said that if speech incites
illegality it then can be punished.
But it's important here
to separate incitement as
a colloquial term we might
use verse incitement as
a legal term.
In Brandonberg vs. Ohio in
1969 the court articulated
the test for when speech can
be punished as incitement.
The court said there has to
be a substantial likelihood
of eminent illegal activity
and the speech must be
intended to cause
eminent illegal activity.
So imagine there's an angry
crowd on campus and imagine
that a speaker exhorts
them to go break windows,
to commit acts of arson on campus.
I think in that context that
speaker likely convicted
incitement.
But imagine that there's
an unpopular speaker coming
to campus and (mumbles) gonna
react against that speaker.
The fact that the speaker
is coming to campus,
even knowing the risk, wouldn't
be enough for incitement
unless you could show
that that speaker intended
to cause the illegal activity.
As well as it being a
substantial likelihood,
it's not incitement, it's
still speech protected by
the first amendment.
Another category of speech
that's unprotected by the
first amendment is so called true threats.
That's actually the phrase
from the Supreme Court.
True threats.
It comes from a Supreme
Court case in the 1960s
United States vs. Watts.
It involves a federal statute
that makes it a federal
crime to threaten the
president of the United States.
And the Supreme Court
said if it's a true threat
then it can be punished, but
the court said if it's just
hyperbole then it can't be punished.
There isn't a lot of law from
the Supreme Court defining
what's a true threat.
I think the best approach
found in lower courts is
that it's a true threat
if it causes a person to
reasonably fear for eminent
danger to his or her
physical safety.
I don't think there's a first
amendment right to cause
people to reasonably fear
eminent danger to their
physical safety.
Imagine a student walking across campus,
imagine an angry mob surrounds
that student and yells
things at that student that
reasonably cause him or her
to feel threatened, to feel
that there's going to be
physical harm.
That's not protected
by the first amendment.
Now I've heard some say
if there's speakers in the
middle of campus saying hateful things,
they feel threatened by the
presence of that speech.
That's not gonna be enough
to be a true threat,
just expressing things that are hateful,
it's not gonna meet the
Supreme Court definition of
being unprotected expression.
There's a third category of
speech that's unprotected
that's relevant here,
and that's harassment.
Interestingly, there aren't
any Supreme Court cases
dealing with harassment
in the context of college
universities.
I think most of the law
about speech and harassment
has arisen in the workplace context.
Courts have now held for
decades that speech that
constitutes harassment can be held liable,
is not protected by the first amendment.
The simplest example is
if an employer says to an
employee, "Sleep with me or
you're fired," and the employee
sues for sexual harassment
it's no defense for the
employer to say,
"But it was just words,
it was just speech."
The Supreme Court has held
that if speech creates
a hostile environment in the
context of the workplace,
then it can be held liable.
I think the same applies
in the context of college
campuses, but once more
we have to separate a
colloquial use of the word
harassment from the legal
definition of harassment.
The fact that speech makes
people feel uncomfortable
isn't enough to make it be harassment.
The lower courts have indicated,
based on the employment
cases, to be harassment it
generally has to be directed
at a person, or at least
has to be pervasive in an
environment, it has to
materially interfere with
educational opportunities
on the basis of race or sex
or religion or sexual orientation.
Let me compare two examples.
There was an ugly incident at
the University of California
San Diego where somebody
put over a tree branch what
appeared to be a noose.
The student who did that
could not be punished
for harassment.
But imagine that somebody
tacked what appeared to be
a noose on the door on the dormitory of an
African-American student.
I think that surely could
be punished as harassment.
Undoubtedly, there's questions
of where to draw the line
as to where the speech becomes
incitement or true threat
or harassment, but that's
where the questions should
be asked of when is it incitement?
When is it a true threat?
When does it constitute harassment?
You'll notice one category
I did not mention as
unprotected speech,
and that's hate speech.
The Supreme Court has been
clear that hate speech,
racist speech, sexist
speech, antisemitic speech,
homophobic speech, is protected
by the first amendment.
I do not minimize the harms
that hate speech causes
for those subjected to it.
It causes enormous psychological distress.
It makes those who have
traditionally been underrepresented
on campus feel unwelcome.
I understand why some scholars,
John Powell on this campus,
Charles Lawrence of the
University of Hawaii,
Catherine McKinnen University of Michigan,
have argued that hate speech
should not be protected
by the first amendment.
And as I said in my introduction
we can have a discussion
of whether the Supreme Court
has been right or wrong
in protecting hate speech,
but what you need to know is
under current law there is
no doubt that hate speech
is speech protected by
the first amendment.
You might remember in the
late 1970s and early 1980s
the Nazi party wanted to march
through Skokie, Illinois,
a predominantly Jewish
suburb with a large number
of holocaust survivors.
Skokie tried to exclude
them, or at least tried to
require them to post a
large insurance bond.
Every court, including the
United States Supreme Court
to rule said that the
Nazi's had a right to march
in Skokie.
Didn't matter that it was
hateful, didn't matter how many
people would be offended by it.
There was a Supreme Court
case in 1992 called REV
verse city of St. Paul.
It involved the St. Paul,
Minnesota ordinance that
prohibited burning a cross
or painting a swastika
in a manner likely to anger,
alarm, or cause resentment.
Burning a cross, painting
a swastika are vile symbols
of hate.
But the Supreme Court unanimously
declared this ordinance
unconstitutional.
All nine justices making
clear that hate speech is
protected speech.
Why, given the harms
that hate speech causes?
Some of it is the difficulty
of defining what's
hate speech in a manner
that's not unduly vague and
over-broad.
Any regulation of speech
has to avoid the problems of
vagueness and over breadth.
And yet it's so difficult
to define hate speech in
a manner that doesn't run
afoul of these requirements.
In the early 1990s over 350
college universities adopted
hate speech codes.
Every court to rule on a hate speech code,
without exception, declared
it to be unconstitutional,
almost all on vagueness
and over breadth grounds.
The University of Michigan
adopted a hate speech code,
it followed a series of very
ugly incidents on that campus.
It defined hate speech as
speech that stigmatized or
demeaned on the base of
race, sex, or religion.
What does it mean to stigmatize or demean?
A sociobiology graduate student
brought a lawsuit saying,
"I want to do research as
to whether there's inherent
"difference between men and women.
"I'm afraid, based on
what my research shows,
"I might deem to run afoul of that code."
A federal court in Michigan
declared the University of
Michigan hate speech to be
unconstitutionally vague.
The last two winners in our
course, chancellor Gilman
and I asked our students to
try to draft a hate speech
code that wouldn't be
unduly vague or over broad.
Our students found that
that seemed to be almost
impossible task.
Also, if you look at the
experience under hate speech laws
in Europe, or hate speech
codes in the United States,
how they've been used
must cause pause before
supporting them.
Usually they're used
against the very groups that
they're meant to protect.
When England adopted it's hate speech law,
the first group to be prosecuted
under it was a Zionist
group with the prosecutor
claiming that Zionism was
a form of racism under a
United Nations declaration.
Do you know who's been
one of the most frequently
prosecuted people under
Francis hate speech law?
Bridget Bardeau for
animal rights activism.
When the University of Michigan
adopted it's hate speech
code, literally every request
for an enforcement action
under it was against
the African-American and
Latino students.
But maybe most of all the
Supreme Court has said that
hate speech is protected
because it expresses an idea,
albeit an offensive and a vile idea.
And under the first amendment
all ideas, all views,
are protected.
Just as John Marshall Harlin said,
"To sensor words is to sensor ideas."
We can't cleanse the English
language to please the
most squeamish among us.
My third and final point,
and that's the campuses can
have times, place, and
manner restrictions with
regard to speech, so long
as they leave open adequate
alternative places for communication.
Even when there's a first
amendment right to use
government property for
speech, the government has the
right to regulate when,
where, how it occurs.
There's no right to march
down the middle of a freeway
in rush hour, even though
government property is
generally available for speech.
In the context of a campus,
there can be restrictions
with regard to time, place,
and manner so as to prevent
disruption of campus
activities and so as to protect
public safety.
Campuses, for example, can
ensure that when it comes
to the place of speech that
it be more in open areas
of the campus rather than
in classroom buildings
during classes are in session.
Campuses can regulate
the time where it goes on
to prevent disruption
of campus activities.
But it has to still allow
the speaker a reasonable
opportunity to speak on campus.
And campuses can have time,
place, and manner restrictions
so as to safeguard public safety.
The campus has a legal, as
well as an ethical duty,
to ensure the safety of
students, staff, and faculty.
And so a campus can say, a time
place and manner restriction
that a particularly controversial
speaker has to speak
in an auditorium rather
than the middle of campus
because safety can better
be protected there.
A campus can restrict when
the speech occurs so as to
maximize the protection of safety of all.
And that's, of course, what
chancellor and the campus did
when Ben Shapiro came,
(mumbles) Milo Yiannopoulos
free speech manifest itself.
I think one of the hardest
questions is how much does
the campus have to spend
in order to protect public
safety and still allow the speaker?
Is there a point at
which the campus can say,
"We can't ensure public
safety and spend a reasonable
"amount of money so we have
to cancel the speaker"?
I think canceling the
speaker on grounds of public
safety should always be a last resort.
Only if there's no other
way to assure the safety of
students, staff, and faculty.
But there will be such a point
sometimes and the campuses
duty for safety has to be paramount.
And the campus can't say,
"We're gonna charge the
"speaker and the inviting
student group all of the
"security costs," if it
would have the affect of
preventing the speaker
from coming onto campus.
Skokie tried to do that
with regard to the Nazis.
Other governments have tried to do that.
And the courts have made it
clear that there can't be
charged imposed on a speaker
in a way that would keep
the speaker from being able to appear.
I've heard chancellor Christ
say that the campus has
spent about two million
dollars already this semester
so as to secure the ability
to have free speech.
I applaud the choice that
she's made in this regard,
think it's important the
Berkeley be known as a place
for free speech.
But that's not sustainable.
What's the point at which
the campus should say,
"We just can't afford it anymore"?
Unfortunately here the
law provides no guidance.
There's no Supreme Court case on point.
Lower courts haven't
answered this question.
The most one can say from
the law is that a campus has
to spend a reasonable
amount of money to protect
free speech, but that doesn't
give very much guidance
to campus officials as to
where to draw the line.
I do want to emphasize
with regard to time, place,
manner restrictions I've
said that freedom of speech
does not protect a right
to disrupt somebody who's
been invited to speak on campus.
There was an incident a
week, just last Friday at the
University of Oregon where
the president, Michael Shill,
was gonna give a state of the
campus address and a group
of student engaged in speech
that prevented him from
being able to deliver his address.
About 10 days ago an ACLU
lawyer was gonna speak at
William and Mary Law School
and students demonstrated
so that speaker could not be heard.
There was an incident, you might remember,
the University of California
Irvine was railing ambassador
Michael Orin was to speak
and a group of students,
in turn, stood up and shouted
so he could not be heard.
In all of these instances
I've heard it said,
"Well the disruptors were
just engaged in speech".
But freedom of speech
doesn't protect the right to
disrupt somebody from speaking.
Otherwise there'd really
be no free speech.
Otherwise any time there's
an unpopular speaker the
reaction of the audience
would be enough to silence
the speaker.
There really would be
a hecklers veto in that
circumstance.
There's a right to speak,
but there's no right to come
in my classroom and shout
so I can't be heard.
There's a right to speak,
but there's not right to go
into the Supreme Court
chambers and yell so the
Supreme Court can't do it's business.
If somebody's invited on
campus, there's no right to
shout so the speaker can't be heard.
So these are the basic principles
of the first amendment,
I've also tried to identify
for you some of the
gray areas.
I think that above all the
premise of the first amendment
is that the best remedy for
the speech we don't like
is more speech.
If there's hateful speech
on campus, the chancellor,
the deans, can and should condemn it.
If we don't like what's being
said, we should have our
counter demonstrations of
teachings and respond with
speech of our own.
I know that more speech
can't cure the pain of
hate speech, but the premise
of the first amendment
is that the only way that
our speech can be protected
tomorrow is to safeguard
speech we don't like today.
Whereas just as Oliver Reynolds also said,
"We don't need freedom of
speech for the speech we like,
"we would let them go on anyway.
"We need freedom of speech
for the speech we detest."
So that's the thesis of
chancellor Gilman and I book,
and I'd be glad for questions,
be glad to have responses,
comments, whatever we want
given that we have the
chance to be together
in this beautiful room.
(applause)
- Is it on? Okay good.
We're recording this so I'd
appreciate if all questions
could be spoken into the mic.
- [Narrator] I wonder about
the kind of activities
that Yiannopoulos and his
confers are engaging in.
When, how does the university
act when it knows that
it's being diddled?
And that's what I think
is going on and, for me,
it complicates tremendously
the discussion of speech
verses the eminence of violence
or the actual production
of violence.
- I get the sense that what
Milo Yiannopoulos most wanted
was to be prevented from speaking.
Because then he could
present himself as a martyr
and as a victim.
In this sense, I'm not
saying this based on anything
chancellor Christ said to
me, I had the view that the
campus was calling his bluff and saying,
"You want to be at free speech week,
"come here at free speech
week and protect your right
"to speak."
And of course that's exactly
what the campus needed to do.
The difficulty is the first
amendment doesn't draw
a distinction between the
provocateur like Milo Yiannopoulos
and the substantive speaker.
It doesn't draw a distinction
between somebody who's
coming to campus just with
the hope of being kept
from speaking and one
who's actually speaking.
And the problem with drawing
such a distinction is
it would so much be a
matter of perspective.
That when we don't like
a speaker we'll say,
"It's just a provocateur,
we don't have to allow that
"person to speak".
And when we like the person we'll say,
"Oh that's substantive."
In the eyes of the first
amendment, under the law,
there's a right of all
of these people to speak.
Even if they're provocateurs,
even if they're just
using the campus for a stage.
- [Narrator] Do you think
that increased penalties
for hate crimes run into
first amendment issues.
- No.
In a case called Wisconsin
vs. Mitchell 24 years ago
the Supreme Court unanimously
held that enhanced
penalties for hate
crimes do not violate the
first amendment, even though
the evidence that it's
a hate crime might be the speech uttered,
just like the evidence
that it's sexual or racial
harassment might be the
speech that's uttered.
A week ago today I had the
pleasure and privilege of
testifying for the senate
judiciary committee in
Sacramento and I proposed
three things to them.
One is that the state
legislature should appropriate
funds to reimburse campuses
in the state for the money
that they have to spend
on security to facilitate
free speech.
That the campus are doing what
the constitution requires,
but all of the tax payers
of the state should bare
this cost, it shouldn't come
from the educational mission.
Second, there should be
greater penalties for hate
crimes on campus and I
think Wisconsin vs. Mitchell
makes clear it would not
violate the first amendment.
And third I think we need
to do much more with regard
to civic education, with
regard to constitutional
rights including the first amendment.
I'm constantly struck by
how little many people know
about the constitution.
In fact, I had a great
pleasure this morning in
Orange County before flying
back to talk to a group
of high school social
studies teachers about what
do I think are the most
important things they should
teach their students
about the constitution.
And I think we need to do
much more of things like that.
They're giving you your
exercise from one side
to the other.
- [Narrator] I'm struck by
the example of the fraternity
on the bus in Oklahoma.
What if it wasn't just
fraternity members on that bus?
What if there were minority
students on the bus also
and they were singing this
song that glorified lynching?
Those students might not
have been in reasonably
eminent fear of personal harm,
but how would you treat that?
- I think it becomes a
much harder example and it
becomes much harder
because I could imagine,
if you're a minority student
on a bus where the white
students are praising lynching,
you do reasonably fear
for eminent harm to your physical safety.
I think in this context where
it was just the fraternity
members on the bus, where
it was just a video,
it wouldn't meet the
definition of true threat.
But I think, I as a juror,
might very well find under
those circumstances that
those minority students
reasonably feared for their
physical safety under the
circumstances.
Obviously any court would
look at the context.
- [Narrator] Okay thank.
- [Narrator] Hi, thank you.
I wanted to ask why do
you find that hate speech
is harder to define than
other thing or concepts
that the Supreme Court and
others struggle to define
in the context of free
speech, like incitement,
like obscenity that was
narrowed down only to
child pornography and
not to anything else.
So like you described, the
Supreme Court or others
develop tests and develop
parameters to define these
difficult to define concepts.
And you seem to single
out hate as more difficult
to define than others.
And if I could just add
another thing, I think it's
worth nothing that in
terms of protection of
free speech the US is an
outlier in terms of the
broad protection of free
speech while other countries
like Canada, like European
countries, are less--
Are more, limit other kinds of speech.
Not necessarily hate speech,
but for example racist
speech or other more narrow concepts.
- I was gonna go reach
for a copy of our book and
we have a few pages where
we quote the hate speech
laws from many other countries.
And all of them are remarkable
in terms of how vague
the definition of hate speech is.
Why do I think it's so
difficult to define?
Because all of these
countries that have tried can
never do much better than
it's speech that expresses
demeaning, stigmatizing
on the basis of race.
350 college universities tried.
Every court to consider hate
speech code found it to be
unconstitutionally vague.
We've come up with a test for incitement,
substantial likelihood of
eminent illegal activity,
intended to cause
eminent illegal activity.
Nobody's been able to
come up with a comparably
specific definition with
regard to hate speech.
The Supreme Court gave up on
trying to define obscenity.
The last Supreme Court case
to deal with the definition
of obscenity was Miller vs.
California in 1973 because
I think they found that they
couldn't define obscenities.
Child pornography is much
easier to define and that's
why the court has said that
it's a category unprotected
by the first amendment.
Obviously I'm crossing the
line here between what is
the current law and what do
I think the law should be.
I think the assumption of the
first amendment is a faith
that we're better off with
all ideas and views expressed
and that if they all get
expressed it's not gonna lead
to genocide, it's not
gonna lead to Nazism.
And if those things were to
happen we're not going to
prevent them by suppressing speech.
Now, we can question whether
that faith is misplaced
but I think that's what
undergirthed the first
amendment.
- [Narrator] I've been
told by one of my teachers,
I mean GSIs last year that the club BAMN,
By Any Means Necessary
has ties to violent groups
like Antifa such as that.
So I guess those specific
types, would that still be
counted as protected speech,
specifically under this campus.
- There is no first amendment
right to engage in violence.
There is never a first
amendment right to cause harm
to individuals or threats
of harm to individuals
or destruction of property.
Now you ask me a different
question when can people be
punished for affiliating
with those who might be
engaging in violence?
And here to tell you what the law is,
you can punish somebody for
affiliating or being a member
of a group if they actively
affiliate with the group
knowing it's gonna engage
in illegal activity and with
the specific intent of
furthering the illegal activity.
So if somebody associates
with Antifa and actively
does so knowing that it's
gonna engage in violence
and with the specific
intent of furthering it,
they can be punished even
if they don't personally
engage in violence.
So that's the legal test
that we applied to answer
your question.
- [Narrator] You made a
reference to Nazis and I would
like to say that I think
Trump is a fascist and the
people that have tried to
come, including Colter, Bannon,
and Milo are mouthpieces
for that administration.
And I think what happened,
I'm from Revolution Books
in Berkeley, I think what
happened is the university
rolled out the red carpet
for Milo, for Ben Shapiro,
and it created a situation
where it was very difficult
for people who wanted to
protest that to protest.
The police arrested people
from Refuse Fascism for
having a sign, which
ironically was about Trump's
repression of civil liberties.
Our bookstore was attacked
by a mob of Milo supporters
after Milo's appearance,
pounding on our windows saying
they were gonna shut us down.
We've gotten threats on the
phone, people have gotten
hit in the face and this,
I see, is a result of not
only allowing but welcoming
people like Milo to come.
So as far as harm and
harassment, I think that was
carried out.
And there were many people
that were very upset seeing
that UC Berkeley turning into martial law.
I think that Berkeley
should take an example,
let me finish, and not,
I think, grease whatever
the analogy is, for people
coming that are promoting
a racist, sexist, xenophobic
message that is gonna
cause great harm and is
already causing great harm
to the people in this
country because what Trump
is doing.
- Let me again go back
to the distinction I drew
between what the law
is and what I think the
law should be.
Let me just talk about what
the law is in this regard.
When we had the forum of
faculty members convene by
chancellor Christ, several
of the students and faculty
expressed just what you said,
that the campus shouldn't
allow these kinds of hateful
speakers onto campus.
And finally towards the
end of that forum I spoke
as a lawyer and as a law
professor and I said,
"Be clear as to what the law is."
That if chancellor Christ had
said that Milo Yiannopoulos
or Ann Colter, Ben Shapiro,
was not welcome on campus
they would sue in court
to get an injunction.
They would win.
When Auburn University not
long ago tried to exclude
the white supremacist
Richard Spencer from speaking
on campus he went to
court, he sued, and he won.
He got an injunction.
The campus would not only
have to bare it's own
litigation costs, but under
the law, it would have to pay
Milo or Ann Colter's or Ben
Shapiro's attorneys fees.
Because the law is so clear
here, chancellor Christ
could've been held personally
liable from any damages
for violating clearly established law.
The excluded speakers
would've presented themselves
to the world as martyrs, as
victims, and they would've
gotten to speak anyway.
So nothing would've been gained.
So I understand why you
and others say the campus
shouldn't welcome such
speakers onto campus,
but the campus has no choice.
If it excludes them it's
gonna get sued and it's
gonna lose.
Now, we can then have a
separate conversation.
Should the law be this way?
And I'm glad to have that conversation.
But under the current law
I don't think the criticism
of the campus is appropriate
'cause it had no choice.
- [Narrator] Hello.
How do we prevent outside
groups from taking this campus
hostage in a sense of
shutting down free speech?
Besides tremendous cost to the university?
Or is that imperative to
make sure free speech is
allowed on this campus,
regardless of ideological
viewpoint?
- Let me change the hypothetical
a little bit and then
answer your question directly.
Think of the late 1960s
and early 1970s when it
was the anti-war protests.
And the campus they wanted
to stop, it said it was
outside agitators that were responsible.
Make it the early 1960s
when it was the civil rights
demonstrators protesting
segregation and the campus
were saying it was outside agitators,
saying it was communists
that were responsible for it.
What if a campus in the
late 60s or late 70s said,
"We just can't afford the
cost of allowing the anti-war
"protests."
In the early 60s a southern
university that didn't want
the speech protesting segregation said,
"We can't afford the cost of it."
I think our sensibilities
would be very different
in that way.
Now, the direct answer to your
question is these speakers
are invited by student
groups and also the campus
is public property.
The campus can have rules for time, place,
and manner restrictions in
terms of how long in advance
do the student groups have
to issue the invitation,
rules in terms of where the speech occurs,
and I know that chancellor
Christ commissioned to examine
all of these rules on campus.
But the campus can't exclude outsiders,
especially outsiders
invited by student groups
under campus rules.
- [Narrator] So I meant
like groups like Antifa
or right protestors that
protest, or protested this
lady's store.
How do we prevent these
individuals from coming on campus
to shut down free speech platforms?
If Antifa is coming onto
campus to engage in violence,
there's no first amendment
protection for it's activity.
But what the campus learned
on February first was
sometimes the only way to
stop Antifa from coming onto
campus is having a
significant police presence,
is having barricades.
That's why Ben Shapiro was able to speak,
that's why Milo Yiannopoulos
was able to speak.
I think that's the campus
having to provide security
to keep Antifa from being
able to engage in violence.
The campus has rules, I
understand that there's a campus
rule that you can't wear mask
as part of a demonstration
around campus.
I'm not sure it's constitutional
under current law,
but I admire the rule's way
of trying to stop Antifa
and groups like it from
operating on campus.
But ultimately the only
answer I can think of it so
make sure there's enough
security that safety is protected
from groups like Antifa.
Violence is never protected
by the constitution.
- [Narrator] Do safe spaces
on campus run the risk
of violating the first amendment?
- Sure.
I think we've got to be
very careful when we use
the work safe spaces.
It's a phrase that's much in vogue.
I want to draw a distinction
between three different
meanings of the word safe spaces.
One is the obligation of
the campus to protect the
physical safety of students,
staff, and faculty.
The campus must create
safe spaces in that way.
As I said in my remarks, I
believe it's both a legal
and an ethical duty of
campuses to ensure safety.
And if they can't allow
speech and protect safety,
safety has to be paramount.
Of course, as I also said,
should only have speakers
canceled on a kind of
safety if it's a last resort
and if there's no other
way to assure safety.
A second thing that safe
spaces might mean is the
protection of repose.
We all need a place of repose.
I think there can be much
greater restrictions of speech
in dormitories 'cause
that's where people live.
The Supreme Court has even
said there can be more
restrictions of speech
outside people's homes.
It still has to be viewpoint neutral,
but I think that restrictions
of speech in dormitories
would be allowed when it
wouldn't be allowed in the middle
of campus.
A third thing that safe spaces
might mean is protecting
students from exposure
to ideas or speech they
find offensive.
And that's how safe space
is often now spoken of,
that campuses should keep
students from hearing speech
that would offend them, they've
got to make the students
safe from that.
Safe spaces can never mean that.
We can never use the desire
to create safe spaces
as a justification for
preventing offensive speech.
Part of being on a college
university should be being
exposed to ideas that
make us uncomfortable,
even ideas that offend us.
So it's that third meaning
of safe spaces that seems
to me completely inappropriate.
- [Narrator] You mentioned
that California has a specific
law that applies, essentially,
first amendment protection
to private schools and it's institutions.
What if you had, outside of California,
an ostensibly private university,
say like the University
of Chicago, is there some
argument that it fulfills
such a public place that
the first amendment should
still apply to decisions made
by university administrators
there?
And conversely, even in
California can you have an
institution that has
such a specific mission,
such as a religious school,
that there was an argument
that they should be
permitted to regulate speech
that might be offensive
to their core mission?
- As to the first
question the law is clear.
No the first amendment
does not apply to private
institutions, even when
they're performing a public
function.
The leading case on this is
1982 Rendell Baker vs. Cone.
It involved a private
school in Massachusetts that
supplied special education,
is over 99% funded by the
government.
A teach criticized the
principle and she got fired.
Some other teachers spoke
up on her behalf and they
got fired too.
They sued and said given
the almost 100% government
funding, given that it's
performing a public function,
the constitution should apply.
The Supreme Court said no,
the first amendment applies
just to the government.
Even a private institution that
performs a public function,
even one almost totally
subsidized to the government
doesn't have to comply
with the first amendment.
Now, when it comes to
private schools there may be
another source of law that
protects freedom of speech.
And that's that faculty
and student handbooks often
have assurance protecting
speech by faculty and students
and there are courts that
have said the constitute
a contract between the
school and the faculty member
and the student and so
there can't be a punishment
of speech.
These provisions often
developed after the McArthy era
of the 1950s where professors
lost their jobs for
being thought of communists,
students were expelled
from doing so, and a lot of
the protection of academic
freedom developed in that time.
The second part of your
question is much more difficult
and it's something that
Howard Gilman and I argued
a lot about as we were writing this book.
For us, the premise of
academic freedom is that all
ideas and views can be
expressed, that it's not for the
government to decide what's
true and what's false,
that that's really what the
marketplace of ideas is.
That as much as we may
think that certain things
are (mumbles), we don't want
to give to the government
the power to say, "This is
abhorrent and prohibited,
"and this we'll allow."
And there's a whole
chapter in our book talking
about the history of academic freedom.
But what a religious
institution that starts on
the premise, "We have a
truth and we're going to
"proselytize this truth" do
they still have to protect
freedom of speech and academic freedom?
And the way this could come
up is what if a law like
the Leonard law was applied
to a religious school
and it said, "But as part
of our religious teaching
"that we can punish and
faculty speech if it's
"inconsistent with our dogma."
I think that's an incredibly
difficult question.
I think I would still want
to come down on the idea of
freedom of speech, but it's not easy.
- [Narrator] You mentioned
that universities are not
allowed to punish students
for hateful speech.
I'm wondering if there are
any restriction or if there's
any lines, legal lines,
as to how administrators,
if they're able to comment
and speak to their approval
or disapproval of specific groups?
Is that considered punishment?
If you could speak to that.
- No, it's not.
And I said in closing,
again quoting from Olive
Wendall Holmes, that the
best remedy for the speech
we don't like is more speech.
And so if there's
hateful speech on campus,
campus administrators
can, and I believe should,
speak out against it.
I admire chancellor Christ
for the message sent to
the community condemning
hateful expression and
explaining why the first
amendment had to go on.
I tried in the context of
the law school here to send
out messages, especially a
message in anticipation of
free speech week, as well as
a message at the beginning
of this school year.
The simple answer to your
question is that government
officials have free speech
and they have the right to
engage it and should engage it.
I mentioned being at
an event put on by the
Office of Civil Rights the
Department of Education
and one of the people there
was the general counsel
of the University of
Mississippi and he talked
eloquently about how when
there's hateful incident
on campus the campus finds
it so important the president
of the University of
Mississippi finds it essential
to speak out against it.
Now, it can't be that every
time something unpleasant
or offensive occurs on
campus the chancellor or
university president can
speak out against it.
One of the things that I've
discovered as a dean that
sometimes less is more, I'm
gonna have more effect if
I speak out a little bit less.
And it requires a judgment
call of where to draw
that line, but the bottom line
answer to your question is
campus officials also
have free speech rights
and they can use it to
proclaim the type of community
we want to have and
condemn the speech that's
inconsistent with those
community principles.
- [Narrator] So I have two questions.
Firstly, based off the
first amendment is profane
language protected?
- Yes, and the key case here is one called
Cone vs. California in 1969.
A boy was in a courtroom in
Los Angeles with a jacket
on his arm and on the back
of the jacket were the
words, and I apologize for
the profanity but I'm quoting,
"Fuck the draft".
And the boy was convicted
of disturbing the peace.
And the Supreme Court
overturned his conviction,
making clear that generally
profanities are speech
protected by the first amendment.
This was the case where
Justice Harlin said,
"To sensor words is to sensor ideas."
Transgressive speech is
often uniquely powerful.
Think of those words on
the back of his jacket.
What other three words
could have so powerfully
conveyed the message that
he was trying to get across?
Fornicate the draft?
(laughter)
There are other cases, as well.
There was a case called the
City of Houston vs. Hill
where a person got convicted
of swearing a police office.
And the Supreme Court
unanimously said that profanities
are protected by the first amendment.
Now, again, I could imagine
instances where we might
come to a different
conclusion based on context,
but the general answer to your
question clearly established
in the law is profanities
are a protected speech.
- [Narrator] Alright
and the second question,
are you familiar with the
resent instance involving
James Damore and Google?
- This is the person who
wrote the memo about sex
difference between men and
women and Google fired him?
- [Narrator] Yes.
- Keep in mind that Google
is a private company.
So as I said in response
to an earlier question,
the first amendment doesn't apply.
Now that doesn't say whether
Google should or shouldn't
have fired him, but the
first amendment applies only
to the government.
Private entities don't
have to comply with the
first amendment or the fourth
amendment or equal protection.
There might be statutes that apply,
but not the first amendment.
- [Narrator] Okay thank you.
- [Narrator] You haven't
said anything about libel
or slander laws.
How do they intersect
because with the standard of
reckless disregard for the
truth, maybe there's a way
of regulating such a reckless disregard.
- I'm gonna put this into
the larger context of I think
the internet poses incredibly
difficult issues for
campus and here the case
law hasn't caught up with
technology.
The internet, I think, is
the most powerful medium for
speech since the development
of printing press.
It's democratized the ability
to reach a mass audience.
It used to be to reach a
mass audience you need to be
rich enough to own a newspaper
or get a broadcast license.
Now anyone who has a smart
phone can send out something
that immediately reaches a mass audience.
In fact you don't even need a smart phone.
If you go to library that's
got a modem you can reach
a mass audience.
Now in the context of
defamation it means that
defamatory speech can be
circulated much more quickly
to a large number of people.
And defamation is simply
false speech that's uttered
publicly that's injurious to reputation.
And the Supreme Court has
said that defamatory speech
is generally not protected
by the first amendment.
Now there's a whole complex
set of rules in terms of
when can somebody recover
for defamation and if it's
a public official or public
figure they have to show
that speech was false or
reckless disregard of the truth.
But I really worry about the
internet on campuses where
false things can be said
about people and circulated to
a wide audience.
I worry about the internet
with regard to public
disclosure of private
facts, so called doxing,
where very private things
can be revealed about
somebody to a mass audience.
The law's answer to that,
well the victim of it can
sue for public discloser of private facts.
Usually that's the last
thing the victim wants to do
is call more attention to
the information that's been
revealed.
I worry about harassment of
students through the internet.
If you know of Yik Yak, which
really seems to have been
a tool just for hate and
harassment of students on campus.
Students getting targeted,
including on this campus,
faculty getting targeted for
harassment over the internet.
And there are a lot of studies
to show that especially
women students and students
of color who've been harassed
via the internet.
The law just hasn't begun
to keep up here with the
technology.
And so the bottom line
answer to your question is
if it meets the test for
defamation it's not protected,
there can be a lawsuit for it,
but people generally don't want to sue.
The real concern I have is
how the internet changes
all of this, especially in the
context of college campuses.
- [Narrator] You mentioned
that a lot of groups that
are fighting for the
well-being of groups that are
subjected to this hate speech
and are affected negatively
by it have goals that operate
outside the bounds of law.
Do you think it's more
important that they try to
accomplish these goals
within what the law defines
or do you think it's more
important that they work
to fight the change the laws
so that they can operate
with those goals outside of that?
Which would be a more productive fight,
in your opinion?
- I'm a lawyer, a law professor,
the dean of a law school.
I went to law school 'cause
I believed that law was
the most powerful for social change.
Social change seems so much
more difficult today than
when I chose to go to law
school over 40 years ago,
but I still believe it's
the most powerful tool for
social change.
I believe once people start
taking the law into their
own hands for the greater
good, I'm not sure it's gonna
come out the way I want it to come out.
So my answer is to encourage
using legal means to
bring about social change.
I worry so much about
illegal and violent means.
- [Narrator] What are your
views about free speech
when it is not speech?
In other words laughter, like
in the case where the woman
laughed at Jeff Sessions during
his confirmation hearing.
- The Supreme Court law
has held that nonverbal
communication is protected
by the first amendment.
There's a famous case, Tinker
vs. Des Moines Board of
Education, that involved
student wearing black
armbands to protect the Vietnam war.
The Supreme Court held
black armbands are speech
protected by the first amendment.
There's a couple of Supreme Court cases,
Texas vs. Johnson,
United States vs. Ikeman,
that held that flag
burning is a form of speech
protected by the first amendment.
Picketing is a form of
speech protected by the
first amendment.
After all, words are just
symbols, there's no reason to
prioritize those symbols
over other symbols as a way
of expressing speech.
And laughter is a form of communication.
I will never understand
what in the world the
federal prosecutor was
thinking in prosecuting the
woman for laughing in
the midst of a hearing.
She wasn't being
disruptive of the hearing,
as best I can tell.
But yes, laughter is a
form of speech protected
by the first amendment.
And maybe one of the best
forms of speech protected
by the first amendment.
- [Narrator] I have two
questions if that's alright.
- [Narrator] Sure, do
them one at a time though.
- [Narrator] Yeah, sure.
So the first one is about universities.
When you mentioned safe spaces
I actually think there's
a fourth kind of safe space,
which is a place that's
sort of safe for exploring
ideas with sort of an
implicit cultural
understanding that you may say
something you perhaps
later regret or that's not
well formed, I'm wondering
whether you think universities
should be that kind of safe space.
- [Narrator] Absolutely.
I hope my classroom is always
a safe space in the sense
that I want all my students
to feel comfortable
expressing all of their ideas.
Liberal and conservative,
from any place along a
continuum.
And I want my classroom
to be a place where all
expressions of ideas are
treated respectfully and we
respond respectfully.
So in that sense I think
that's the ideal of what
a classroom should be and
then the ideal of what
a university should be.
- [Narrator] So my second
question is sort of about
John Stewart Mill and sort
of about the first amendment.
So I personally think that
on liberty is the best
and complete defense of free speech.
But it's a very specific
conception of what a culture
of free speech is was well
as a conception of how we
react to ideas and form
our own ideas in response
to speech.
And what I wonder is, when
I see the first amendment
I see something that was
written and the case law
has evolved around that
conception of free speech.
And when that has changed
or perhaps we've changed
'cause I feel like we have changed.
Do you think that the way
that we think about the
first amendment and the
way it will be practiced
will and should change?
- I think it's a wonderful question.
The assumption of John
Steward Mill is that all ideas
be expressed and then responded to.
The false ones will be refuted,
the true ones will emerge,
and the very process benefits us all.
But there's lots of flaws with that.
Why assume that the true
ideas will triumph and the
false ones will get refuted?
We know that there's times
when people believe things
that are false.
People burned witches, (mumbles).
There's times when
abhorrent ideas gain hold,
think of the genocide
that occurred in Nazism.
And it's not really an
open marketplace of ideas.
Those who have money can
so drown out other voices.
And yet then I ask what's
the alternative to the
John Steward Mill conception
of the first amendment?
Knowing that it's flawed.
The alternative would be to
let the government decide
what's true and acceptable
and ban that which is false
and unacceptable.
And let campus officials
decide who's worthy of being
able to speak and who's
so unacceptable to be able
to be banned.
And then I say I don't want
the government and I don't
want campus official to have that power.
Winston Churchill said that
democracy is a bad form
of government, but it's just
better than anything else.
Well I think John Steward
Mills account of the first
amendment is flawed, but it's
better than anything else
that I've had.
And I think my conception
of the first amendment,
and I think a consensus has
developed that we protect
speech now not because we
really believe the marketplace
of ideas will lead to truth
but because we're so afraid
of government power as
the alternative of the
marketplace of ideas.
- [Narrator] We have time
for one more question.
- [Narrator] I was curious
that you've told us what
the law is and you've said,
"I'm telling you what the
"law is," if you were in
charge and could make the laws
what kind of changes would you make?
You talk about this idea of
why should the university
bare all the costs?
Maybe we need a law where
this is born by the state
as a whole or something.
Can you give us some other
ideas where you could see
some changes in the law?
- I think the law is gonna
need to change with regard
to the internet and speech.
That I think we're gonna need
to find a way of providing
more protection from
harassment over the internet,
more protection from public
disclosure of private facts
over the internet, and I
would like to see the law
advance in that way.
I mentioned to you I'd
like to see the law develop
so as to provide more penalties
for hate crimes on campus.
I have to tell you, I'm
personally ambivalent on whether
we should or shouldn't provide
protection for hate speech
if we could come up with
a way of defining it.
When I read the signs that were
held up in Charlottesville,
Virginia, and if you haven't
read them they were as
vile and deeply offensive
as one can imagine.
I remember seeing one of the
signs, and you can find it
on the internet, that was
held up and I'm quoting here
verbatim, "Kikes belong in the oven".
That was like a punch to the stomach.
In my ideal, should that
be speech protected by the
first amendment?
I don't know, I'm so afraid
of government power to
sensor speech and I've yet
to see a hate speech law
that's not unduly vague that
I think I would say that
still should be protected
and I'm not sure.
And that's why it's easier
for me to talk about what
the law is 'cause there
is where I'm just not sure
what the law should be.
Thank you so much for your
wonderful question and for
having me here tonight, it's
really been a tremendous
pleasure, thank you.
(applause)
(upbeat music)
