- Good evening.
Thank you all for being here
for this special evening.
My name is Will Haskell.
I'm a senior in the college
and a research assistant
for the Free Speech Project.
The Free Speech Project was
launched a few months ago
with exactly this sort of event in mind.
Professor Sanford Ungar, with the support
of the Knight Foundation
and Georgetown University,
is leading our study of
the state of free speech
at a time when America's commitment
to the First Amendment
is being severely tested.
States are passing laws
that make peaceful protest
legally perilous and physically dangerous.
College students are
shouting down speakers
with whom they disagree
instead of engaging
with them on the merit of their ideas.
State legislators are literally brawling
when they can not work out
their differences civilly.
From athletes defying
the President's tweet
by taking a knee during
the national anthem
to a counter-protestor losing her life
in Charlottesville, Virginia,
free speech issues attract
our attention every day.
This evening we bring
together an activist,
a police officer, a lawyer,
and a federal judge.
Of course, our panelists
are so much more than that,
and you can read about
their many accomplishments
in the program, but allow
me to highlight the fact
that DeRay Mckesson was recently named one
of the world's greatest
leaders by Fortune Magazine.
Former Charlottesville chief
of police, Timothy Longo,
himself a lawyer, implemented the nation's
first 311 non-emergency call system.
Arthur Spitzer from the ACLU
has spent a career defending
the civil liberties of clients
of nearly every political persuasion.
Judge Xinis' former law firm
in Baltimore represented
the family of Freddie Gray.
Georgetown is so lucky to have assembled
this esteemed group to
discuss this important issue.
Perhaps I speak for many of you when I say
that the Unite the Right
rally in Charlottesville
in August kept me awake
many nights as I thought
about racism and ethnic hatred in America
and the threat to our civil liberties.
As one commentator noted,
white nationalists were
back in force, and this time
they weren't masking their
identity with white hoods.
Even for those who believe
in the freedom of speech
for the thought that we hate,
as the late Justice Oliver
Wendell Holmes put it,
it was painful to watch the violence
that led to the death of a
young woman named Heather Heyer.
Vice News did a particularly good job
of capturing the chaos and
cacophony in Charlottesville,
and we'll begin this evening
by watching a few minutes
of their coverage.
Then, Sanford Ungar, director
of the Free Speech Project,
will moderate the
conversation that follows.
There will be an opportunity
at the end for questions
to be posed to the panelists.
One final note, please
silence your cell phones
to avoid disrupting the discussion.
Thank you again for being here.
Now, an excerpt from Vice's documentary,
Race and Terror in Charlottesville.
- [News Anchor] This is tough to watch.
- So, when did you get into,
as you said, the racial stuff?
- When the Trayvon Martin case happened,
Michael Brown, and Tamir Rice,
and all these different things
happened, every single case,
it's some little black
(beep) behaving like a savage
and he gets himself in
trouble, shockingly enough.
I'm here to spread
ideas, talk, in the hopes
that somebody more capable
will come along and do that.
Somebody like Donald Trump
who does not give his daughter to a Jew.
- So, Donald Trump, but like, more racist?
- A lot more racist than Donald Trump.
I don't think that you could
feel about race the way I do
and watch that Kushner bastard walk around
with that beautiful girl, okay?
(crowd chanting)
- So, the alt-right is very organized.
They have a lot of numbers.
They have shields.
They have protective gear like helmets.
We've seen tear gas, water bottles--
(beep)
(crowd chanting)
(car pealing)
(crowd screaming)
- There are people on
the ground being treated
by the medics.
There were people running
up the street screaming and crying.
There's many people on
the side injured, too.
It's a really horrific sound.
- I'd say it was worth it.
We knew that we were gonna
meet a lot of resistance.
The fact that nobody on our side died,
I'd go ahead and call that points for us.
The fact that none of our
people killed anybody unjustly,
I think is a plus for us.
And I think that we showed our rivals
that we won't be cowed.
- But the car that struck a
protestor, that's unprovoked.
- That's not true and you
know that it's not true.
You've seen the video, so.
- I've seen a video.
- Yeah.
- I don't know much about it.
- Oh, I understand that you're--
- Can you describe what
the video appears to show?
- Okay.
So the video appears to show
someone striking that vehicle
when these animals attacked
him again and he saw no way
to get away from them
except to hit the gas.
And sadly, because our rivals are a bunch
of stupid animals who don't pay attention,
they couldn't just get
out of the way of his car
and some people got hurt,
and that's unfortunate.
- So you think it was justified.
- I think it was more than justified.
I can't believe.
The amount of restraint that
our people showed out there,
I think was astounding.
- That was (audio drops).
Here you are, DeRay.
Art, actually you're
at the end over there.
- Okay.
- Makes a difference for the microphone.
- Putting me on the right as usual.
Well, that video is pretty
stark as a representation
of what happened in Charlottesville.
Tim Longo, I'd like to start with you
and ask you what's happened
to Charlottesville.
You were almost 16 years
you were the police
chief in Charlottesville.
Until when?
- Until May a year ago.
This is probably a poor analogy.
It's like sitting on the sidelines,
and you're watching a
team that was once yours,
and you're wishing you had the playbook
so things could go differently.
And it was powerless
to sit there having shepherded
the police department
and having worked incredibly
hard to win back trust
in places in Charlottesville
where we had lost it
and filled that gap between
community and police
to where we were actually
beginning to make a difference,
and now over a period of months,
watch that get destroyed
in front of my very eyes
and not be able to do anything about it.
Charlottesville has a history of racism.
It was one of the last, if not the last,
communities in the
Commonwealth of Virginia
to segregate their schools.
It had a community, one of the largest,
the largest African American
community in Charlottesville,
Vinegar Hill, demolished and families
and social fabric moved
to the four corners
of the city and put into public housing.
And the African American
community, they resented that.
There was a tremendous amount of distrust,
and we were beginning to
make progress, and now this.
And it's gonna take decades
to recover, literally decades.
- [Sanford] Are the white nationalists,
they've been back already
since these events in August.
- Oh, yes.
- [Sanford] Richard Spencer,
and do you think they feel
they can do whatever they want
with impunity in Charlottesville now?
- I certainly hope that
that's not the case.
I don't know what they're thinking.
It would be speculative for me to begin
to conjure what their thoughts might be,
but I think it's never been more important
for the community to begin to
come together and heal as one.
It's never been more important
for the city's governance
to begin governing and begin communicating
that we're not that city.
That is not us, and we
will not go back there,
and we will do everything within our power
to prevent that from occurring
and make it not welcoming
for people like that to
come to our community
and destroy it, because
that's exactly what they did,
and they did it inside of hours.
- [Sanford] Art, the
ACLU defended the right
of the protesters, the
Unite the Right Rally,
to take place in
Charlottesville at that time,
and do you have any misgivings
about that decision by the ACLU?
- I don't, and I hope
we would do it again.
I think what happened at
Charlottesville with lots
of respect for my friend
Chief Longo was a real failure
by the police department
to keep separate the
right-wing demonstrators
and the counterprotestors, something
that the DC Police have
had lots of experience with
and I've had lots of
experience working with them.
We had a march by the Ku Klux Klan here.
I think it was 1990, lots
of community opposition.
The Klan marched all the way
from the Washington Monument
to the Capitol Hill,
and the police kept the
counterdemonstrators apart,
and there were a few rocks thrown.
One officer hit by a rock,
not seriously injured,
thank goodness, but it was
basically a peaceful event,
and I think the Charlottesville Police
probably could have achieved that result
if they'd really wanted to.
I have a suspicion, and some of my friends
at the ACLU of Virginia who was
there shared that suspicion,
the Charlottesville leadership did
not want this demonstration.
They did everything they could to move it.
I think they were sort
of hoping there would be some violence.
They were certainly not hoping for death,
but I think they were
hoping for some violence
so that they could say,
"Okay, your permit's revoked.
"No more demonstration,
and don't come back."
And there's still a lot
of this sentiment, "Don't come back."
Well, these are American citizens.
They have a right to travel.
They have a right to
demonstrate, same as people
on the left have a right
to travel and demonstrate,
and that right needs to be upheld.
It's a right to demonstrate peacefully,
and we'll get into talking, I imagine,
about whether they can
have their guns with them,
but if they come for a
peaceful demonstration,
Charlottesville cannot
say to them legally,
"You're not welcome here."
- DeRay, what do you make of
the Charlottesville events,
and what are the lessons for you?
- I don't know how we
talk about free speech
without talking about the
uneven distribution of power,
and also the unequal
enforcement of any of this.
So I think about Charlottesville
as a fascinating example
of those white people had tiki torches,
which is the most minor thing,
but they had stockpiles of weapons.
I talked to Terry McAuliffe,
the governor of Virginia.
They had stockpiles of weapons.
We saw videos of the white supremacists
physically pushing the police.
If we had ever done anything
like that in St. Louis,
all of us would have been shot.
It wouldn't have been
a conversation at all,
and what you saw in that
moment was white people.
That wasn't peaceful to me.
I don't know any police officer
that would say people pushing
them was a peaceful demonstration.
If black people had pushed those officers,
it would have immediately been
called an unlawful assembly
and a riot, but when white people did it,
it was sort of like, "Well,
they're out here assembling,"
and that is wild to me,
when I think about the way
that enforcement is so
unevenly distributed.
And to not talk about that
when we talk about free speech,
I think, is to miss so much of it.
- [Sanford] Ms. Xinis, how do
you square the First Amendment rights
of these people with their
Second Amendment rights,
the fact that many of them we
now know were highly armed?
This one eminent character
who was interviewed
on Vice News had four or
five weapons, a knife.
Where does one amendment
stop and the other one start?
- Well, as a judge, I can't
really answer that in a vacuum,
but I can in looking
at, so I guess we'd look
at what we know and who we are.
I went back in preparation for today
and actually thought about the judges
who have been behind a number
of the very important decisions,
including the decision
to allow Unite the Right
to protest in Emancipation Park, because--
- [Sanford] Now, that was a
U.S. District judge like you.
- That's correct.
That's right, and just a couple of days
before this tragedy, really,
that befell the city,
the ACLU did the right thing and brought
to Judge Conrad the best argument
that they could on behalf
of their clients, and the city
didn't bring all the facts
that we now know to be true.
And what I mean by that,
if you all go back, because you can.
This is all a matter of public record.
And actually read the ACLU's
pleadings in persisting
that this demonstration should
happen in Emancipation Park
and not in McIntire Park a long way away,
they made the right arguments,
which is that the decision
of the city was what's
called content based.
It was only the alt-right
that was being moved
and not the counterprotestors,
so you had this unevenness.
And I think more importantly
to your question,
there was really no evidence
put before Judge Conrad
that the protestors were coming armed,
so if you read the pleadings,
they read very vanilla.
It's just about logistics
and that the size
of the protest would
be better accommodated
in McIntire Park.
Now, put that against one
of the most recent cases,
lawsuit, that has been filed
after August and after October
when the alt-right came
back to Charlottesville.
Georgetown has been in
partnership with private attorneys
who have filed a lawsuit
on behalf of the city
and business owners, and
they document the weeks
if not months of planning that went
into the alt-right's
presence in Charlottesville:
the coordination, the organization,
and most importantly,
the call to violence.
The call to arms, that they were going
to come bearing these very,
very dangerous weapons
and torches and spewing
what is a call to violence,
I wondered if Judge Conrad
had those facts before him
if this would have gone very differently.
So to me, I think the
message is in a vacuum,
judges shouldn't and they
really can't answer those
very important questions.
They can only best answer
them when top lawyers
like Mr. Spitzer and others
on the other side bring the best facts
and the most robust
understanding of the law
into the court, 'cause we're passive.
We don't go out like in other countries
and ask for certain information
or appoint investigators to
do the job of the judges.
That's the job of the
lawyers and the litigators,
so I hope that answers your question.
- I'd just push a little
bit and say that this comes
to the question of power interpretation,
that the KKK's never
operated in a vacuum, right,
that there's a long history of
their impact on this country,
especially with people of
color, and that I don't know
if we need to still make arguments in 2017
about how dangerous
their language has been.
And we think about
incitement as not protected.
Incitement to violence
is not protected speech,
and it's so clear what
their intentions were.
It's so clear their
history in this country
that I don't know
if the best lawyers had to say, "Remember
"when they would have rallies
and lynchings happened."
I don't know if that has to be
the strategy in this moment.
I can guarantee you that if black people.
I think about Ferguson.
If we organized anywhere
it was an unlawful assembly
in 15 seconds, and we just
had our cellphones, right.
I didn't kill anybody.
We were in the street because
they killed Mike Brown,
and that was so real, so this question
of who actually gets to
decide what is incitement
or not is its own way that power manifests
in a way that doesn't
actually benefit the lives
of people of color, I'd say.
- Well, I hear you, but I
think unless that argument
with evidence is made before a court,
it's not going to change.
One could say the same thing
about the Seminole case Skokie,
which really put the ACLU on the map.
That was the high court
saying individuals can march
with swastikas displayed prominently,
which is probably the biggest slap
that you could ever give
the village of Skokie,
which is 45,000 of 70,000
residents were Jewish,
but it was a court to say,
"We're drawing the line
there, that that's speech.
"That's not a call to violence,"
and very interestingly at
the end, we were just talking
about this with my clerks this afternoon.
At the end, the Skokie march
turned out to be a big whimper,
and so one sort of asks--
- Right, and that's a
very important difference
from Charlottesville, of course.
Skokie was litigate,
litigated, talked about,
talked about, and then fizzled.
- Which is what happened in Tennessee,
which is quite interesting,
right, in the last--
- In Charlottesville,
perhaps there wasn't enough litigation.
There wasn't enough--
- Maybe.
- in advance.
- Right, conversation in advance.
- To me, some of the
problems with what happened
in a place like Ferguson doesn't mean
that the same treatment oughta be given
to other demonstrators elsewhere.
Who decides whether something
is incitement, for example,
is a very important question.
If people decided there
was incitement in Ferguson
when there really wasn't, that's wrong,
and the ACLU in Missouri was quite active
in defending the rights
of Black Lives Matter
to have their demonstrations in Ferguson.
They weren't 100% successful, but I think
that they did what they could.
But if a court does not
correctly uphold the
First Amendment rights
of one group doesn't mean that they should
then not uphold the First
Amendment rights of another.
We should strive, and
nothing is ever perfect,
but we should strive
to uphold everybody's
First Amendment rights,
black and white.
My own experience representing
the Klan when they came here,
this was not a bunch of powerful people.
They drove up from North Carolina
'cause they couldn't afford to fly.
They were driving jalopies
that were held together
with metal hangars.
They were poor people who felt
that society was giving
all kinds of benefits,
affirmative action and stuff,
to black people and leaving them behind.
That's how they felt.
You can say that's ridiculous,
and on a social level it is ridiculous,
but in their particular lives,
they felt quite oppressed.
The Grand Wizard worked in a gas station,
and he wasn't even the owner.
He had to get his boss'
permission to come up
to do this march, and so I
learned something about that
that certainly was a surprise to me.
In 1920, the Klan may have been
a powerful political force.
I don't believe it's a
powerful political force today,
and if they wanna demonstrate--
- [Sanford] We do know what it stands for.
We know what the Klan stands for.
- It stands for awful things.
- [DeRay] And because they
didn't have money doesn't mean
they didn't have power, right.
That's one of the ways that
whiteness works, right?
- These guys didn't have power.
Some others may have power.
These guys were the ones
who wanted to demonstrate,
and they came here, and
they made their speeches,
and nobody listened to
them, and that seems to me.
You can listen or you can
not listen, but it seems
to me they had a right to make their march
and make their speeches.
- It's not about whether
I'm listening or not.
It's a question of what
does power look like
and how white supremacy
manifests, and if the marker
of power is with the people of wealth,
you cannot tell me that every white person
who lynched somebody in the
South was a millionaire.
That's a wild argument to make,
that that's not true, right.
When Baldwin says whiteness
is a metaphor for power,
that that means something different,
and I think that that's what we see.
I think about Ferguson
is that it was illegal
to stand still in August,
September, and October 2014.
It was illegal.
If we sit still for five seconds
or more, we were arrested.
That is a wild difference in the way
that things were interpreted.
And you have Charlottesville,
they had stockpiles of weapons.
You were a police chief.
If people pushed your
officers, there is no way
you could say, that you'd
be like, "You know what?
"This is just freedom of speech.
You'd be like, "That is assault."
They would be arrested.
If people walked up to a line
of your officers and pushed them,
there's no way as a police
chief you'd be like,
"You know what?
"Free speech day."
That's wild.
(audience laughing)
- Tim, let me take it a
little bit further than that.
It's not only wild.
It's absolutely embarrassing.
It would be wrong for me to
speculate what happened there.
My opinion was neither sought
nor desired in the preparation
for that event, so I don't
know where it went wrong,
but I know what it looked like.
I know that the questions
that people are asking
are the right questions.
How does that happen?
How is that allowed to happen?
When the move was
undertaken to move the march
from one place to the next,
what new information suddenly came about
that wasn't known six
weeks before or more?
What happened there was foreseeable.
There were signs and clues
as we say in police work
along the way that should have put plenty
of people on notice.
Folks weren't coming
to express their views,
their thoughts, and ideas.
They were coming for a fight.
The minute they got out of their cars,
they were coming for a fight.
It was visible.
It was apparent, and I
struggle to this day wondering
how in the world we allowed that
to happen and whether situations
like this perhaps creates the opportunity
for our courts, our highest courts,
to revisit what imminent
lawless behavior looks like,
because they've told us in policing,
"It can't be conjectural."
"You can't speculate
that it might happen."
Well, I just watched four minutes
that tells me it can happen,
and it can happen again,
and do I have to wait for that push?
Do I have to wait for that shove?
Do I have to wait for that
gun to come out of a car
and come into a crowded place
where people might be there
to peaceably protest and wait for somebody
to do something with that
gun before I can act?
I'm deeply troubled by that.
As a lawyer, I'm troubled by that.
As a former police chief,
I'm troubled by that.
As a person who lives in that town
and raises their grandkids,
I'm troubled by that.
- [Sanford] And you
still live in Charlottes.
- Absolutely.
I lived 3/4 of a mile
from where that happened.
I said to my wife that morning,
"I think I'm gonna go downtown."
She said, "No, (laughs) you're not."
(panel chuckling)
"No, you're not.'
- So here in Washington, we've
had rules for a long time now
about the kinds of things people can bring
to demonstrations near the White House.
You can't bring sharpened sticks
because that could be used as a weapon.
In fact, you can't bring
sticks that are more than,
I forget exactly, but it's like an inch
by a quarter of an inch or something.
Lightweight, like balls of wood
sticks to hold your sign on.
You can't bring strong poles.
You can't have a big sign made of plywood,
'cause a big sign made of plywood--
- Can be a weapon.
- can be a weapon,
and it could be a ramp
over the White House fence,
so the Reagan administration
banned plywood.
There's lots of things,
lots of regulations about,
as we say, time, place,
and manner regulations
regarding the manner
of these demonstrations, and so although
in general you may have
a right to walk around
with an ax, you can't bring one
to a demonstration in downtown Washington,
and I don't have any problem
as an ACLU lawyer saying
that Charlottesville, or
the state of Virginia,
or some other jurisdiction can say,
"While you may in general
have a constitutional right
"to carry a gun around Texas
or whatever states allow them,
"we're not gonna give
you a permit for a march
"without one of the
conditions being no weapons."
- [Sanford] But someone would have
to enforce that condition.
- And someone could enforce that.
That's right.
You go down to the Mall
for the Fourth of July,
you have to go through a checkpoint
to make sure you're not carrying
glass for goodness sakes.
- And it's not only--
- You come in here
[Sanford] this evening,
people had to show their bags
if they didn't have anything dangerous.
- [Art] Not me.
- No, you had a privilege.
- The judge did.
- I had to show my bag.
- Yeah, a witness.
- I guess I'm very suspicious.
I'm very shady.
- It's those sneakers that--
- That's right.
It's the sneakers, and
I'm a woman of mystery.
You'll have to figure out
why I'm wearing sneakers, but it's true.
You look post-Charlottesville,
and Chief Longo
and I were talking about this
before we started, check out the protests
that didn't happen in
Murfreesboro, Tennessee.
That police department
issues this spectacular list
of banned items that couldn't
go anywhere near the protest,
including not only the
usual suspects, the guns,
and the axes, and the
ammunition, but things like eggs,
balloons, bolts, bicycle
locks, alcohol, air horns,
and spears, skateboards,
shields, selfie sticks,
rolled coins, poles, right.
This police department sat
down and game planned this
down to whether an egg can be brought.
- [DeRay] You said axes
like they were normal.
(DeRay and Paula laughing)
- Well, it would be like of
course you're gonna ban axes,
right, but eggs,
balloons, a bow and arrow,
coolers, wagons, carts, skateboards.
So it just shows there are
reasonable time, place,
and manner restrictions to allow
even the most distasteful
speech as people weigh.
- [Sanford] Of course, they
did this post-Charlottesville.
- Charlottesville, which is right.
- We don't know whether Murfreesboro,
Tennessee would have been
so brilliant before Charlottesville.
- Is this the one that just happened?
- That just didn't happen, right,
because the first was the one
that was canceled.
- Got it.
- Well, what's interesting is
that it's my understanding,
and Art's right, the District
of Columbia is one of,
of course they're a federal enclave,
but there are seven other states
that have very similar rules.
The vast majority of our
states don't have these rules.
The vast majority of our states
don't have any prohibitions
necessarily on bringing firearms
into places like protests,
and in many of those states,
the localities are prohibited
like they are in the
Commonwealth of Virginia.
We're what's called a Dillon Rule state.
The state speaks.
Once they speak, the localities can't go
on their own accord and create ordinances
to do the very things
that the judge described
and Art described, and I think
we're gonna see that change.
In fact, I know we're gonna
begin to see that change,
and I hope and pray that in
the Commonwealth of Virginia,
our legislature begins to think about
how to structure rules of
engagement very similar
that they have here in the
District, so if they come
to speak again, the rules of
engagement will be different.
- There are legislatures,
of course, where the members
of the legislature have
guns in their pockets
during the legislative sessions.
Texas, for one.
Recent uproar there where two
people almost shot each other
rather than talk through
their differences.
If it's happening in
the state legislatures,
it's a little hard to say it's
not gonna happen in a park.
So I guess combining this shocking,
and I think everyone agrees
this is a shocking sequence of events.
- Can I say one thing real quick?
'Cause in building off of what you said,
what's interesting about it
is that even in the absence
of legislation that dictates enforcement,
we've seen enforcement sort of come up
with ways to deal with people of color.
And I don't wanna be a
broken horse about this,
but I think it's interesting
is that you think
about St. Louis as a great example.
What the rules were were questionable,
but you see the creation
of a five-second rule that,
and I consider myself a
protestor like everybody else,
but we followed it 'cause we were like,
"I guess this is a law we never heard of."
It was like, "I guess you
just can't stand still."
For three months, we
just didn't stand still.
- [Sanford] Can't stand still?
- Yes, if you saw us walking, it wasn't
'cause we thought marching
was this incredible tactic.
It was we'd get arrested
if we stood still, right?
And you think about how
things like that just emerged
out of thin air from law
enforcement and by the state
in the absence of their being
any sort of rule or whatever.
But you see, Charlottesville's
this interesting space
where people are like, "No law.
"Can't do anything," and
race is playing there.
There's something about power
that is different in those moments,
and I will say the ACLU
is huge in Missouri.
It helped us file a lawsuit
to make the five-second
rule unconstitutional.
Did some other work
that was also incredible
and without them would have
been even more of a nightmare,
but you state just take extra license.
And I think Charlottesville
was this amazing foil,
that you saw all these
white people do things
that were so grievous,
not only that person
but I'll never forget the
people pushing the officers.
And it wasn't one or
two, which is why I keep.
It was lines of people pushing officers,
and in any other
circumstance, the response
from the state would be so immediate.
It'd just be Heather Heyer
wouldn't be the only casualty.
It'd be something much, much different,
and I think we're remiss not to name that
every single time we talk
about the difference of Charlottesville.
- Well, actually, so
let's redirect ourselves
for a moment about this.
There are people who
have said that since 9/11
and the preoccupation with
so-called Islamic terrorism,
that our investigative services
have paid less attention
to white supremacists,
white nationalists, racists,
anti-Semites, that that's
been sort of allowed
to develop on its own with
less federal attention.
Now, I'm not entirely sure what they mean.
I'm not exactly sure,
but J. Edgar Hoover used
to have ways to infiltrate things,
and it would be odd if we were now to say,
"Where's J. Edgar Hoover
now that we need him?"
- Would not say that.
- I don't think we need him.
- I'm not saying that.
I'm certainly not saying
that, but why don't we?
If the city of Charlottesville
doesn't know on its own,
why don't we know whose
these people are and what?
Where is law enforcement?
- I don't know.
We didn't know to be
quite honest with you.
- Tell the truth.
- Various states ...
I'm no longer there, so some
of what I'm doing is speculating,
but I know the state has a fusion center.
Most states have fusion centers.
They're hubs of they gather intelligence
to disseminate to law enforcement
for public safety service purposes.
- [Sanford] And are they
considered reliable?
Do they know what they're
talking about usually?
- For the most part they do,
and I can't help but to think
that weeks in advance of this,
they knew who was coming.
They knew who they were
getting ready to deal with.
I think there was intelligence there.
I don't think anyone could say,
"Wow, we were caught off guard by this."
Well, then you were asleep.
Literally, you were asleep.
How could you have been caught off guard?
There was so much intelligence, I'm told,
I'm led to believe, that
would have afforded adequate,
thorough, rigorous, thoughtful,
deliberate preparation.
As you know, there is an
independent investigation,
which frankly, I have
confidence in, that will get
to the bottom of where things fell apart
and be very transparent
and public about it.
- [Sanford] This is a
Virginia investigation.
- So then, there's two.
The state is undertaking an investigation.
The city of Charlottesville
has contracted a very large
and prominent law firm to
conduct an investigation.
The person responsible
for that investigation,
Timothy Heaphy, is a former U.S. Attorney
with the Western District of Virginia.
He was a prosecutor here
in the District of Columbia
many, many years ago,
was the line prosecutor
in Charlottesville,
has extensive law enforcement
experience, and wants to get
to the bottom of this, and I think will.
And once he does, I think
what we'll find out is
that there was an opportunity
to have done things differently.
What those things are, again,
I'd be speculating to say,
but I think there was intelligence there.
- And then in comes
the President of the United States saying
there were many fine people involved
in that demonstration in Charlottesville.
I don't know whether he has.
He watches television a lot, apparently.
- One station. One station.
- One station, yeah.
He probably doesn't watch Vice.
- He wasn't watching Vice, yeah.
- No.
(audience laughing)
I don't think so, but
anybody, anybody, who sees
what we just saw, and there's
a much longer version of it,
how could anyone say there
were many fine people?
Now Art, you talked about
dispossessed people,
and I get what you're talking about.
We're told that's one of the ways
that Donald Trump got elected
president, but fine people?
And what message does that send?
- He was pandering to his political base,
which is what he does for a
living, so that's no surprise
that he would have said
that, and it's unfortunate
that that's coming from the
President of the United States.
- [Sanford] It's not a surprise,
but it doesn't help change
the tone of what's going on.
- No.
Right.
- I do think it's also a
great case study in the way
that we think about
racism and white supremacy
only showing up in one way,
so because they were hair slicked back,
young people, it didn't look violent.
It didn't look wild in the way
that people think things
look wild often, and I think
that that is one of the
really brilliant tactics
of the right in so many
ways, is that the KKK
to the White Citizens' Council
to the alt-right is the same
idea, just different packaging.
And the fact that we've
allowed the packaging
to make people believe that
the idea changed is a real win
for them from a marketing perspective,
but it's the same core idea.
- [Sanford] Sure, it is.
What do we think about the fact that some
of these demonstrators, by
the way, were identified
by coworkers, were fired,
were expelled from schools,
and then some people backed up on that?
Do we think that they
should have been punished
in their daily lives for their speech?
- Yeah, I think the general answer is
I don't think that's a good idea depending
what an individual did.
An individual who commits
a heinous crime should go
to jail and probably should lose his job
before he goes to jail, but
someone who simply participates
in a march, it's hard to
know did he come intending,
did that person come intending violence?
If that person didn't engage in violence,
should he be fired just
because of his views?
There are lots of people all
through the political spectrum
who have views that are not mainstream.
It wasn't that many years ago
that if you favored same-sex marriage,
you were pretty extreme,
and would we have thought it
was okay for a company to say,
"You were at a march for that.
"You're not working here anymore"?
I think that would have been
awful, and you can think
of lots of other examples of views
that were considered extreme
until they became mainstream.
- Would you say the same
if there was a local chapter of ISIS?
Would you defend them in the same way?
- If somebody says philosophically,
"I support what ISIS is trying to do.
"Create an Islamic
caliphate in the Middle East
"and bring back sharia law
in that part of the world,"
well, seems to me if they're
not engaging in violence,
if they're not teaching people
how to engage in violence,
if they're not doing
other actions that are
actually breaking the law, it seems
to me they have a right
to have that opinion.
- I think that would disturb
a lot of people however,
if there were a--
- Undoubtedly.
- ISIS chapter in the paper.
- I read in the Washington--
- I think people would react.
- I read in the Washington
Post a few days ago
that there were students
at this university
who think a student
group here who believes
that marriage should be between one man
and woman is engaging in hate speech
and should be banned from
Georgetown University.
I hope that's not very many
students who think that,
but apparently, that's an
actual piece of advocacy
that's been going on on
campus, so should people
who believe that marriage
should be between one man
and one woman lose their jobs
'cause they're involved in hate speech?
Maybe in 50 years we will think that,
but that's still a pretty mainstream view,
except to some people it isn't.
And as a legal matter, if
I'm the owner of a company
and I don't wanna hire someone
who has different political views than me,
in general, that's my
right in this country,
but do I think owners
of companies should exercise that right?
In general, I hope they don't,
because why should you be cut
out of the workforce because
you have political views
that are either past their
time or not yet at their time,
or maybe never will
become mainstream views.
But how do we know?
We're not sure right now
that all our current views are correct.
We know that people 20
years ago, and 50 years,
and 100 years ago, their
views were not correct
as we look back now and think about it.
- It's just an important
distinction to note
that the KKK's thoughts have
led to serious harm to people.
It's not like a philosophical debate.
The KKK believed things
and people got lynched.
This isn't a classroom conversation
about gay marriage or not.
It's not a classroom conversation
about pro-choice or pro-life.
It was like these ideas
directly led to real harm
to entire segments of the
country, and to not take that
into account I think is to
do an incomplete analysis.
That doesn't make sense to me.
- I don't know when the last time was
that the KKK lynched somebody.
- [Sanford] Does that matter?
- I think it does matter.
I think of course it does matter.
- I think that that is a
dangerous way to think about this.
Just 'cause it wasn't
yesterday doesn't mean
that it wasn't important.
The lynchings happened.
- It was very important.
- There are people
alive who saw lynchings.
This isn't even a 200-year-old.
This isn't a only experience
it in the textbooks thing.
This is my grandparents
were alive when this--
- Japanese people attacked Pearl Harbor.
Should we discriminate
against Japanese people?
- For real?
They killed thousands of American troops.
- So this, I think, the moment where--
- The judge steps in.
- The judge steps in--
(audience laughing)
- Thank you.
- and highlights one very important piece
of our separation of powers, right?
It's in the court system
that we respectfully have
to get away from generalities and leaps
and talk about the facts because, and no.
I'm speaking to both of
you because it's the facts
that drive, especially
on the trial court level,
which is where I am.
As you go up in the chain
of appellate review,
we talk more about policy until you get
to the Supreme Court, where you're
really guiding these
fundamental principles
that hopefully advance our society.
But at the trial court level,
it's all about the facts,
and marshaling the
evidence that then we apply
to the law is critical,
so when I hear you speak,
I think to myself, well sure,
if on an evidence-based way,
we can take that speech,
which really very quickly transforms
into violence because they
bring all the accoutrements
of violence with them--
- But it did though, right?
- It did.
- So when a Grand Dragon of the KKK,
it's not DeRay's interpretation of that--
- Except DeRay, did you
read what was before,
and I say this respectfully--
- We just met.
I get it.
- What was put before the
judge who denied moving it,
it is not what you're describing.
- I'll give you that.
I'm just saying.
Yes, that makes sense to me.
I'm just saying that I'm not convinced
that every time the KKK
shows up we need to make,
somebody should just
dust off the legal brief.
The KKK leads to violence.
I don't know if new lawyers
need to make that argument.
It happened, so it's weird that it's like,
"They didn't do it to somebody yesterday."
That's a weird argument.
That doesn't make sense to me.
- Well, because I think
you can envision a world.
It's not the world that
Charlottesville lived on that day,
but it's the three
minutes that we watched,
where those individuals
were not doing anything more
than spouting their very,
albeit distasteful and unacceptable--
- My push is that that mere
spouting has directly led
to people dying in this
country not a generation ago.
- But it wasn't their words,
per se, that killed those folks.
- No, but their words--
- It was the words plus
the action, right,
and the evidence of that.
- Are their words not a clue--
- Sure.
- to their intentions
and their potential actions?
- And the question of incitement.
Incitement's not protected
speech, so the question is
who gets to decide what's inciting or not?
(DeRay and Sanford
drowning each other out)
Wise judges, wise judges.
But for so many people, the
KKK's language is inciting,
and the question becomes
who are the people in power
that get to decide those
things is the only point
that I will continue to make.
- And I guess I would defer to the expert
in the First Amendment, 'cause I'm not.
I'm all about the process.
I'm here to talk about the
process of coming to court,
but one line of demarcation
really does seem to be
when the words are coupled with the acts,
and I don't mean acts like ax.
I mean acts, A-C-T-S: action.
Virginia v. Black, I'm
sure you're familiar
with that case, the
difference, the simple line
of demarcation in that case,
which is a powerful one is there
was a cross that was burned
in connection with the words,
and when you take that extra step of not
just talking the talk
but walking the walk,
it does bleed over into
that area where we're not
just talking about views,
but we're now into an area
where a court can say
those are the time, place,
and manner restrictions
that need to be put in place
so that very divergent
viewpoints can be shared
in a way that doesn't lead to harm.
- But let's say for a
moment that years pass.
You have a brilliant career on the bench,
and someone nominates you
for the Supreme Court.
- Do I get to wear my sneakers?
(panelists laughing)
- Any time.
- Okay.
- And whether or not someone has a video
of tonight's conversation
in which you discuss some
of these matters, are there
now, and I feel obligated
to ask this as the director
of Free Speech Project,
is free speech different now
from a overall
philosophical point of view?
Is free speech dangerous
in Charlottesville
and in circumstances like this?
Are we safe as individuals,
as residents in this country,
residents, not just citizens
but residents, as members
of various ethnic groups, are we safe?
And if we're not safe, and
some people are starting
to draw comparisons to Weimar Germany
and some pretty horrifying things
and with a president who doesn't appear
to speak on behalf the broader population.
If we're not safe, do
we have to worry about
whether the First Amendment
is still enforceable?
- I'm more worried that if
we give the government power
to really go after those who it thinks are
ideologically dangerous, it's
gonna be Black Lives Matter
that's gonna suffer more than
it's gonna be the alt-right,
'cause who's in the White House?
It's not Black Lives Matter.
And who's the majority
leader of the U.S. Senate
and the Speaker of the
United States House?
It's not Black Lives Matter.
And who's the chief of
police in most places?
It's not Black Lives Matter.
And so who decides, which is the question
that you asked early on, is an
extremely important question.
The power structure decides,
and the power structure
typically wants to defend
the power structure.
And so to say we're gonna
give the government power
to repress people before
they've done anything wrong
is a very dangerous thing.
- [Sanford] I don't wanna be misunderstood
to have said that.
- I'm not saying you urged it.
You just raised it as a question.
How do we protect ourselves?
Personally, I think more
gun control would be
a good thing, absolutely.
I'm not against having a good
police intelligence operation.
They shouldn't be agent
provocateur the way
J. Edgar Hoover liked to do,
but good intelligence is a good thing.
So I think there are
things that can be done,
and a better attitude from the guy
in the White House would
be a great start of course.
- [Sanford] Tim, do you have--
- I have lots.
(audience laughing)
It's going on up here.
Here's what I tell students all the time?
You know who makes the law?
The Supreme Court interprets it.
You all know that.
The law gets made on the side of the road
at 3 o'clock in the morning
by a 23-year-old cop
that's gotta make a decision,
and what it's troubling
to me is these cops are now gonna have
to make a legal conclusion,
and they're not nearly skilled
as some of us on this stage
to be able to do that,
to really understand what it is to incite.
The oldest case on incitement,
Chaplinsky, says it's words
that by their very nature
incite hostility in others.
Well, what does that mean,
right, 'cause I'm the 23 year old
on the side of the road
that's gotta make that call
in real time, and gee, a
little bit more clarity
from the court might be helpful
in that regard, because I'm--
(audience laughing)
- [Art] It would, and
remember what Chaplinsky said,
if I remember right.
- Damn fascist.
- He said, "Damn fascist,"
and that was fighting words.
Would that be fighting
words, damn fascist?
- [Sanford] Not now.
- I'm not gonna punch you in the nose
if you call me a damn fascist.
I've been called much worse.
- I'm not even sure
what that means.
- [DeRay] But they pushed your officers,
and that still wasn't incitement.
- I know that.
I get it.
- I just wanna say it again.
- I get it.
- It wasn't
even fighting words.
- I get it.
It was they literally pushed you guys.
- I know. I know.
That's conduct, yeah.
I get it. I get it.
No, I get it.
- There are people who'd be happy
to be called fascists in America today
who invite themselves to universities
and are required to be permitted to speak.
- Right, and agan, speaking personally,
if I were a university student
in a situation like that,
I think I would be
moved to counterprotest,
but I don't think I would
be moved to counterprotest
so close that I was gonna
get into a fistfight,
'cause I'm a pretty cowardly guy.
I would go protest.
- (laughs) Would you be moved?
- I would go protest
a few blocks away, and I'd be safe,
and they wouldn't fight with each other.
They wanna fight with me.
I'm not gonna give them that chance.
They can have their protest,
and they're not gonna shoot each other,
and if I'm not there,
they're not gonna shoot me.
- Would you moved to disrupt such speech?
- I would not. I would not.
No, as long as they are acting peacefully,
whatever may be in their heads,
if they're having a peaceful
march, rally, demonstration,
speech in an auditorium, it seems
to me you can protest outside.
You can turn your backs on them inside.
Things like that, sure,
but I think as we've seen
in many university situations
recently, to storm the stage,
grab the mic, prevent
the person from speaking.
And that happened to the
director of the ACLU of Virgia
at William & Mary just
a couple months ago.
- What about that?
- I don't think that's a
step in the right direction.
It seems to me we should respect
the rights of other people
to speak and to be heard by
those who want to hear them.
- [Sanford] Other thoughts about that,
what happened at William & Mary?
- I didn't see it.
I'm very pro protestor,
so I think about protestors'
free speech, and I think
that we put undue restrictions
on them sometimes.
I get too that there are different ways
that we can get our message across,
so we'll always disagree
about tactics and strategies.
I think that some of
the most powerful things
I've seen is people filling
auditoriums like this
and turn their back on the speaker,
stuff that gets the same message across
but doesn't have to be the
shouting, but I also know
what it's like to be somebody shouting
'cause you're like, "I
just won't let that.
"That is just so wild that it
should not have space here,"
and I think that the
time and place matters
for both of them, but I get
why you'd be frustrated by.
I get it. I get it.
But I worry about it being banned.
And you think about the
universities and colleges
that are now making it against law.
You'll be suspended or you'll be expelled
for shutting down a speaker.
- [Sanford] Well, it's actually
there are state legislatures--
- Which is wild.
- That are requiring, are passing laws
that will require public universities
to suspend people who disrupt speech,
and that's a level of management
that maybe the state
legislature shouldn't have.
- Right, because as you all were talking,
I was thinking about the
battles that are going on
in federal courts throughout
the country being brought
by Spencer, and Kessler,
and Spencer's friend
from the University of
Georgia to compel universities
to give them a spot on the stage.
- Uninvited.
- Uninvited, where the
universities are choosing not
to allow, public universities,
not allow that forum to take place.
- What's the uninvited part?
I don't know this.
- So there are a number
of universities, Auburn,
Penn State, Michigan, even--
- [Sanford] Well, Florida.
University of Florida
- Florida initially had said
no to the alt-right
and Spencer and his cohort,
including one very enterprising student
at the University of Georgia,
has been filing lawsuits
in federal court throughout the country
to get a spot in these universities--
- [Sanford] Without being
invited. Without being invited--
- and federal courts are saying yes--
- [Sanford] by a student
group or a faculty group.
- That it would be
content-based restrictions
to not allow speech.
- [Sanford] So where does
the ACLU stand on that?
- As far as I know, we're
not involved in those cases,
but a university can certainly have a rule
that says our facilities are to members
of the university community
or those that they invite,
so apparently at these universities,
they just didn't have such
a rule, and if their rules
and their customs had been
anyone can rent the auditorium--
- [Paula] And you're not
renting it to alt-right, then--
- You're renting it to all comers,
then until they switch that
rule, they have to obey it.
But I lost a case
against the University
of Maryland a while ago
on behalf of a guy who just
wanted to walk onto the grounds
and stand there on a walkway
and handout his leaflets.
And the university said
this is for students
and those they invite to be speakers,
and a stranger can't just
walk onto the campus.
Well, strangers can walk onto
that campus all the time.
It's a wide open campus.
There's public streets that
go through the middle of it,
but the university said if
you wanna come and engage
in free speech activity, you've
gotta have an invitation,
you've gotta be a student,
or a faculty member,
or an invitation, and the court said okay.
I don't think that's a good
rule, but these universities,
as far as the First
Amendment is concerned--
- I think it does vary.
- they could pass such a rule.
[Sanford] Varies from state to state.
- We're going to invite questions
from the audience now.
There will be a microphone
in the center aisle.
I'd like to ask that we give priority
to Georgetown Students
to ask questions first.
We're here because of
them, and then we'll see
if we have some time for others.
Tell us who you are and
what your relationship is
to Georgetown, please,
when you ask your question.
- Are you an outside agitator?
(audience laughing)
- I am not. My name is Alec Camhigh.
I'm a sophomore in the college here.
Thank you all so much for being here.
It's been a fascinating panel.
I was a little disturbed
that you downplayed the views
of the white nationalists who
protested in Charlottesville
as merely outside the mainstream.
Even if you believe
that speech is protected
under the First Amendment,
would you be willing
to say that it is
dangerous, radical speech
that has caused real harm
to people in the past?
- It is certainly radical speech.
There's no question about that.
And is it dangerous?
All speech is dangerous
if it persuades people
to your point of view and
motivates them to do something.
If your speech is so closely linked
to somebody else's violence,
then that's illegal, right?
That's incitement or
that's aiding and abetting.
If your speech is simply
persuasive and it persuades people
to share your views, then
if they do something bad,
that's on them and not necessarily on you.
This was a big issue in
the United States long
before you born about communists.
The communists urged the overthrow
of the United States
government and its replacement
with a communist form of government
like in the Soviet Union,
and the United States Congress
passed all kinds of laws
against being a member
of the Communist Party,
against spreading those kinds of views
in the United States,
and we look back at that,
at least some of us do, and we say,
"What were they so worried about?
These people were just
teaching an economic doctrine
and it never was gonna take roots
in the United States, so yes.
Was it radical? Yes.
Was it way outside the mainstream?
Yes.
Could it have led to a violent revolution
in the United States as
it did in St. Petersburg?
I suppose in theory it could,
but what the First
Amendment means is you get
to express your views,
and hopefully you don't persuade
if your views are horrible.
- [Sanford] Let's go to the next question.
- [Sarah] Hi, I'm a
freshman in the college.
- [Sanford] Your name?
- Oh, yeah. Sorry.
Sarah Blaird.
I wanted to talk about, or ask a question
about the chants that were,
"Jews will not replace us,"
and, "Blood and Soil,"
a literal Nazi slogan,
and the historic, very violent
precedent of the actions
that backed up those words,
and I just wanted to ask
what our responsibility
is to give free speech
to people who would so happily
and completely justified
in their eyes, they would
take free speech away
from others along with other rights,
what our responsibility is
to give them those rights.
- I think that's a very good question.
- It is a very good question,
and I think my answer,
which is also the legal system's answer,
is the state can't take
action against those people
until they are in a
position where they can
actually start taking
rights away from people.
- What about the corollary
to this, that as long
as we feel safe as individuals,
as groups, as a community,
as a nation, it's much
easier to allow speech
from one margin to the other,
but when various groups
of people begin to feel
unsafe, then we start to worry.
I think the question Sarah raises is
when we have a political
moment where there seems
to be a kind of plausibility
or an aura of support
in certain political circles
without getting too subtle
about this, but are people then?
Do we understand then that
people are going to disrupt,
are going to stand up
and turn their backs,
are going to say this is not
just a parlor conversation any more.
There's a real threat.
- So maybe I'm self-deceived,
but I'm not worried
about Nazis in the United States.
There are probably 150
of them in the country.
Sure, if they had power,
they would take away
other people's rights,
but they don't power and
they're not about to have power.
As Chief Longo said,
the police probably know
exactly who they are.
They probably know how
many guns they have.
They are not about to
have a violent revolution
in this country and take
over Washington, D.C.,
or Charlottesville, or any place else.
They are a bunch of people
making a bunch of noise
and not so much noise.
There was a story in
the Post this weekend.
It was the 50th anniversary of the march
on the Pentagon in 1967.
Tens of thousands of
people came to Washington
to protest the war in Vietnam.
I was actually part of it.
It was an interesting thing for me
to realize it was 50 years
ago, but we filled the streets.
We marched on the Pentagon.
We were gonna try to levitate
it, which was pretty--
- [Sanford] Levitate it. That's right.
Didn't work.
- Didn't work any more than
the Nazis have been working.
But at least that was a lot of people.
It was a nationwide movement.
The alt-right has more publicity
because they have access
to the internet and they have
access to certain TV stations
and so forth, but I think it's
fair to say in a general way
that this is a pretty
small number of people.
It's the same people who travel from town
to town engaging in these rallies,
and they mostly make noise,
and they make terrible noise,
but a lot more people
were killed in Las Vegas
by one man than the alt-right has killed
in this country in my lifetime.
- [Sanford] DeRay.
- I am worried about the Nazis.
I'm worried about the KKK.
I think it's a luxury not to be worried
about either of them, and I'd say
that this remains a conversation
of what power looks like.
Just because 50 Nazis or
white supremacists showed up
in the middle of the street doesn't mean
that there are only 50 white
supremacists in the country.
You think about Boehner,
who I don't even love,
but Boehner just did an
interview where he's like,
"There are white
supremacists in Congress,"
and they probably didn't
have the tiki torches,
and they probably weren't driving that car
that hit Heather Heyer, which doesn't mean
that they don't exist.
And I think you're right to
pose this question about,
well, what about the speech
that we disagree with.
I think that's fair, and I should have
to be in proximity to people.
I don't share their
beliefs, just like they have
to be in proximity to mine.
That makes sense to me.
There's something different,
though, about the legacy
of a belief system that has
directly led to the murder
of people, and this is why I
posed this question about ISIS,
that if ISIS showed up, I don't think
that we'd be sitting here
having a conversation
about it was just free speech.
I think that that would
not be the conversation.
It wouldn't be like, "Well, I need proof
"that they wanna kill people.
"I need proof that they
beheaded people 10 days ago."
It'd be a real problem.
People would have a real moment about it,
and it's weird that the KKK
has rebranded as a political.
They're another political
organizing committee.
That's a wild thing, not only
because the damage they've done
is not in the distant past.
People are alive who's
family members were lynched.
That's real.
It's not DeRay's interpretation.
That actually happened, and it's weird
that that's just a moment (mumbles).
It's a footnote in history.
I think that we lose when that happens,
so I agree that we don't need,
the government needs no more power.
We don't need to centralize power.
I also agree that we gotta
figure out this conversation
of what incitement looks like,
and we can't devalue the
violence that's happened
just because it didn't happen to you.
- [Sanford] Tim, how do you
answer Sarah's question?
- I guess what I hear
is the chilling impact
that things like that will have on people
who wanna come and share their concerns
but now are afraid to come into that forum
because of the violence they
saw depicted in my hometown.
- [DeRay] On what side?
Who's it chilling?
- The person who might wanna
come and share whatever thought
or idea they have on either
side, but now they're in fear
of coming to do that
because they're coming
into a sphere of violence,
and that's the chilling effect
that concerns me is that.
And it goes hand in hand
with the presence of weapons
at these types of events
as well, that a person
who would otherwise wanna
come and share their thoughts,
as offensive as they may
be, are now prevented
from doing so because they don't wanna go
into an atmosphere where their
lives could be compromised.
- [Sanford] Next.
- [Joe] This is sort of--
- [Sanford] Your name?
- Oh, Sorry.
I'm Joe and I'm a first
year in the college.
My question is, and I guess
this doesn't really ...
Let's leave castle law out of this,
but I've heard the sort of feeling safe.
Do we have a right to feel safe?
- Judge Xinis.
- I'm going through the amendments ...
(Joe and Paula laughing)
in order.
It's an elusive question.
I don't think there is
a constitutional right
to a feeling, as difficult
as that may be to hear,
but there are constitutional
rights that have to coexist.
One very fundamental, it is
the First, it is the right
to free speech, and quite
simply, I think that in order
to give that right its
full flavor for those
who carry their well-held beliefs closely,
we have to allow for the ones
that are extremely disturbing.
That probably doesn't
answer your question, but--
- [Sanford] But isn't it one of the duties
of the state to protect the people?
- To protect them from real threats
and not from imaginary threats.
There are people who feel
unsafe who feel unsafe
for all kinds of reasons,
and you can't say people feel unsafe
'cause the ACLU is allowed to exist,
so should we abolish the ACLU?
You can't go by people's
subjective feelings.
- Not sort of anybody's opinion
but a general sense of
safety is one of the reasons.
- Now that we're talking about
it, when you think about it,
you can tick off the number
of amendments that maybe
at its core deal with this
feeling of safety, right?
The First Amendment, the Second Amendment,
right to bear arms, the Fourth Amendment--
- Unreasonable searches.
- The right to be free
from unreasonable search and seizures.
- And force.
- And force, right.
That's where sort of all
the, "You have a right
"to feel safe from excessive force."
- By the government.
The right to have counsel is
the Sixth Amendment right,
so if you find yourself
in a pickle with the law
and you can't afford an
attorney, one will be appointed
of competent counsel to represent you.
That's the right to feel
safe in the process.
And so we've gone through the first six.
We have left out the third--
- Are you convinced yet?
- And it's all about the right
to feel safe at its core,
so you've hit on something very--
- Let's go to the next question.
Thank you.
- Hi. I'm Adam.
I'm a sophomore in the
school of foreign service.
My question's more about freedom
of speech in the private sector.
As we move away towards freedom
of speech on the internet,
and specifically with Twitter,
how do we sort of deal
with terrorists being blocked online,
or even Donald Trump threatened
nuclear war on Twitter?
That's a violation of
the terms and services.
How are we gonna move away where freedom
of speech doesn't become
a public issue matter
but becomes a matter of the
internet and the private world.
- I obviously love Twitter
and have a good relationship with Twitter.
I'm not a defender of
the terms of service,
but he has not violated
the terms of service yet
because of the newsworthy clause.
So there's this clause that
talks about newsworthiness,
and he fits into the newsworthy clause.
Whether you agree with the clause or not,
that is why he's not suspended yet.
It's one of the prime reasons.
- [Sanford] He fits in it every night.
- I do think there's question, though.
I think that the general harassment stuff,
I think all the platforms will figure out
'cause they'll have to figure it out,
but we just met with Sheryl
Sandberg this year of Facebook,
and one of the pushes
to her was there are
these Instagram accounts
that have 200,000 followers and they are
just white supremacist
accounts, and they're private,
and Facebook's reporting
mechanism requires
you to report it.
But how do you report a private account?
That's a good question, right,
and they haven't figured
out those sort of things,
or the private Facebook
groups came to exist
precisely because they were in countries
where you couldn't
organize, but what happens
when the people using the
private Facebook groups are
actually people planning
to kill other people?
They didn't think through that
when they built these
parts of the platforms,
and I think we'll see that become
an issue sooner than later.
I think about Twitter as
this interesting space
where they are now trying to figure out
what does it mean to ban
people from the platform.
What does it mean to do
that stuff more regularly
as a part of the work?
And I think that they'll figure it out.
I think that it is unfortunately
a little too new for them,
and I think that the people
that they ask the most
are not the impacted users
but the people that
represent the impacted users.
(audience member faintly speaking)
- [Sanford] Better speak
into the microphone.
We're not hearing you.
- [Attendee] How does it
feel to be figured out
by a private corporation
rather than the public sphere
where the decision for
freedom of speech is taken
out of the hands of the government,
which represents the people,
but is now in the hands
of a few board members?
- Of course, the government
has never had the option
of censoring people's speech.
It's only had the option of
not censoring people's speech.
The First Amendment protects you
against government censorship,
so the Washington Post,
and the New York times,
and every other newspaper
in the country has
always been free to say,
"We're not gonna run
advertisements by certain people
"or for certain things," and they have.
The Washington Post
doesn't run advertisements,
or didn't use to when it had
movie ads, for X-rated movies,
so private censorship has
been part of our society
just as long as the First Amendment has,
and people have complained for many years
that private gatekeepers
in the news media,
back when newspapers were very important
or when the three TV networks
that everybody watched
were very important,
that these private
gatekeepers were exercising
their power in unfair ways.
The internet is a whole new phenomenon.
I agree it's gonna take
some time to work it out.
I'm more worried right now about
giving government the power
to control these private
venues of expression
than I am in having some time
before Facebook and Twitter
and so forth figuring out for themselves
how they're gonna deal with this.
I think they're thinking
about it seriously,
and I hope they come up--
- [Sanford] We're just gonna
take two more quick questions.
- First of all, thank you
all for being here tonight.
My name is Theo Montgomery.
I'm a senior in the school
of foreign service here,
and I think we've hit on a
really cool idea tonight trying
to separate the line
between speech, and outcome,
and action, and it's
clearly a very hazy one.
And DeRay, you brought up the point
that I think is most interesting,
which is sort of it is those
in power who get to decide
what is free speech, or sorry,
what speech is permitted--
- What is incitement?
- and what is not,
whether it's incitement or something else.
And so my question is
if those in power decide
what is allowed speech.
in this case, in this system,
we're talking about a system
that is deeply ingrained
with white supremacy.
If those power get to decide
what is allowed speech,
and that allowed speech
leads to that discrimination
or suffering that we've
been talking about,
what is the solution there?
Is it those in power censoring
those who have beliefs
that they think are reprehensible
or shouldn't be allowed,
or is it on the other side a, let's say,
open marketplace of ideas
if everybody's allowed
to express their free speech?
Does that move us towards
a more equitable society
or whatever your point is?
- We have to move on.
I'm gonna take one more
question and ask everybody
to answer the last two questions together.
Thank you for your thoughtful question.
- Hi.
My name is Tom.
I'm a first year in the
school of foreign service.
My question relates to our
country's history in free speech.
There are public ministers in
Germany that came out publicly
and say that given their history,
that it would be
unconscionable for the state
to give some sort of voice to
Nazi hate speech in Germany.
And so do you think considering
our country's history,
specifically with the institution
of slavery and the KKK,
that we should go on some sort
of similar moral questioning
of ourselves and whether we think
that some sort of similar restriction
on free speech should
also be unconscionable?
- Let me ask the judge to go
first on these two questions.
- Well, it's interesting.
I was just thinking when you were speaking
that what we're seeing in certain
places, like what happened
in Tennessee and maybe
what was less successful
in Charlottesville for maybe
reasons of pure logistics,
is that kind of check on what we consider
to be unconscionable speech happens
when counterprotestors have a safe place
to voice their opinions.
What was interesting about
Tennessee is that the speech
that you and others rightfully
consider unconscionable was
literally drowned out
by the counter views,
so it didn't have to
come from the government.
It didn't have to come from
the Man, from the institution.
It came from the people,
and that's really, to me,
at the heart of the First Amendment.
That's why--
- that same thing happened
[Sanford] in Boston a week
after the Charlottesville
incidents in August.
- But if you don't put the
kind of restrictions on speech,
what are what we call
time, place, and manner.
Manner's probably the one we've
been talking the most about,
that you can't voice your
views holding an AK-47.
You can't voice your views ready
to hit somebody over the
head with a baseball bat.
If we don't put those
restrictions on speech,
then the counterprotestors
or the other side doesn't
feel comfortable enough
to come out and speak their views.
And in our country, that's the way we get
to what you've described
happening in Germany.
In my view, that's the essence
of the First Amendment.
- You've referenced Boston.
There's two things unique about Boston
that weren't in play in Charlottesville.
One, they were prepared, but secondly,
they had the legislative
means by which to regulate
where Charlottesville did not.
Massachusetts allows
localities to craft rules
to better restrict what can come
into these types of assemblies.
To your point about hate
speech, this is, I think,
the most recent discussion
our Supreme Court had.
Now, this is a very brief quote.
This comes out of a case
that the court heard,
a very complicated case about copyright,
but it was brought by a
fellow by the name of Tam,
who is part of a band, a
Japanese band, called the Slant,
and he's challenging the
government's particular regulation
in the copyright laws.
This is what the court said.
I believe it was Justice Alito,
and this is about hate speech.
"The idea that the government may restrict
"speech expressing ideas
that offend strikes
"at the heart of the First Amendment.
"Speech that demeans on the
basis of race, ethnicity,
"gender, religion, age, disability,
"or any other similar ground is hateful,
"but the proudest boast of our
free speech jurisprudence is
"that we protect the freedom
"to express the thought that we hate."
That was just decided in,
I think, June of this year,
so to get to where I think
you wanna be is gonna take a long road,
and I'm not sure this court
is prepared to do that,
but I hear what you're saying.
- [Sanford] Art.
- It's a good segue.
The quote that you just read
ended with the protection
of the thought that we hate.
That's a famous line written
by Justice Oliver Wendell
Holmes, and what was the thought
that was hated when he wrote that opinion?
It was socialism, and it was pacifism,
people who didn't wanna be fighting
for the American side in World War I.
And I think it was Rosa Schwimmer,
if I'm remembering which case it was,
who was about to be deported
'cause she wouldn't swear
to bear arms on behalf
of the United States.
She was an elderly woman.
No one was gonna draft
her, but she wouldn't swear
to bear arms, and so she
was gonna be deported.
But that was the thought
that the system hated,
and Justice Holmes' opinion said
that the First Amendment
should protect her,
and I think that's a
very good illustration.
The First Amendment is really a shield,
maybe even a weapon, for the powerless.
The legal system in general,
the economic system in general,
the educational system in
general perpetuates things
as they are, but the First Amendment is
really a radical exception to that,
and the First Amendment
was unique in the world
when it was written in this country,
and it's still pretty
rare around the world
that people who oppose the
government get to speak,
that people who oppose the power structure
that exists get to speak,
that federal judges see it
as maybe their most important duty.
I don't know.
You can tell me if it is.
- [Paula] We love all
the amendments equally.
- Okay.
(audience laughing)
Some federal judges, I
think, have suggested
that maybe they think
it's their highest calling
to protect the rights of
people who don't have power
to speak and to change
the minds of society.
And our society has
changed in dramatic ways.
There was one time when it
was a horribly radical thing
to say that women should
be allowed to vote.
God didn't want it that way.
It was a horribly radical thing,
I can easily remember back that far,
to say that gay people
should be allowed to marry.
We had a federal law that was passed
virtually unanimously and
signed by Bill Clinton
that this was never gonna
happen, and what was it
that enabled it to happen?
It was the ability of people who disagreed
with the majority to keep
talking, and to keep persuading,
and to keep saying what they thought,
and not to be sent to jail for it.
That succeeded in changing
people's attitudes
until they changed the law, and there ways
in which all of hope
the law doesn't change,
but I don't think we can predict, frankly,
what is gonna be the radical idea tomorrow
that will turn into the
accepted truth 30 years
or 50 years from now.
And the only way to
allow that to happen is
to allow these ideas that we hate
to be protected today.
- [Sanford] DeRay.
- I'd say two things.
One is sort of challenging this idea
of the myth of the marketplace.
The marketplace is
always heavily regulated.
You can't go on Amazon and buy a child.
You can't go and buy blood anywhere.
You can't go and buy eyeballs or a brain.
If you were gonna find them,
it would be in the black market at best.
The market has always
been heavily regulated,
and there's no reason why the market place
of ideas doesn't have
some sort of regulation.
So we think about the First Amendment
as not a carte blanche.
It's not every idea.
Ideas that lead to incitement
aren't protected, actually,
and that is sort of challenging this idea
that the marketplace
has always been a thing
where everybody can equally
participate in everything.
That's never been the case.
And the second thing is that
we all have a role to play
to make sure that we don't
let people negotiate history,
and we think about how the KKK
to the White Citizens' Council
to the alt-right is the same idea.
We lose and we allow people
to talk about those ideas is
if they are left equal to any other idea
that we have in the world.
So gay marriage is not
synonymous with the thought
that black people aren't real people.
Pro-choice or pro-life is not synonymous
with the idea that I'm gonna lynch people
that I don't agree with.
None of those are the
same, and the more and more
that we allow that language to seep in,
we actually do the work that
they want us to do for them,
and that is my push,
that we have to make sure
that we differentiate the
ideas and then talk about
what the repercussions are.
- Thank you all.
I wanna remind you there's a
reception on the second floor,
just down the steps from Gaston Hall.
Thank you to all of you
for a wonderful discussion
and thank you all for coming.
(audience applauding)
freespeechproject.georgetown.edu.
Thanks for coming.
