(applause)
- Thank you.
I want to thank you first of all
for coming out on a Friday afternoon.
Your presence here clearly
shows the importance
of this topic to our community right now.
So I've been thinking
deeply about free speech
for not weeks, months
and the more I think about
it the more I realize
how complex an issue it is.
It's not that the law is that complex
but it intersects, indeed
conflicts with our values
in very complicated ways
so I thought a good way
to enable the community, the
Berkeley community staff,
faculty, students to
engage with this issue
is to ask some of our faculty
who have thought deeply
about it to discuss it.
So the form of this
event is going to be that
I'm going to ask each of the
faculty members on the panel
after I introduce them to
talk for about five minutes
giving their perspective
then I'm going to ask
some questions and then
there'll be time for you
to ask some questions.
I think this event will last till sometime
between 5:30 and 6 o'clock so
that's the kind of timeframe.
I feel like I should channel
fire marshal right now
and suggest that please try
to leave room up the aisles.
I know we have people sitting
in the aisles, that's fine
but to enable people to get through them
and to not block the entrances.
So let me now introduce our panelists
starting at the far right, far left sorry.
I have to get my politics straight.
(laughs)
Is David Landreth a colleague of mine
from the department of English
and a specialist in
Renaissance literature.
Sitting next to him is Irwin Chemerinsky
the new dean of the law school
and a constitutional law scholar.
Irwin has just published
a book on free speech
which I suggest you all
read, it's a great book.
Next to him is Stephen Hayward
who is a visiting scholar
at IGS the Institute for
Governmental Studies.
He's a columnist and he's
the Ronald Reagan professor
of public policy at Pepperdine University.
Sitting next to Stephen
as Arley Hochschild,
she is an emeritus professor of sociology,
written many books but most recently
a wonderful book called
Strangers In Their Own Land,
which I hope she's gonna talk
about some in our panel today
and then finally to my
immediate left, John Powell.
He's a professor of law
African-American studies
and ethnic studies and the Robert T. Haust
Chancellor's chair in equity and inclusion
and the director of Hyphus.
So please welcome our panelists.
(applause)
And I'm gonna begin our
panel with asking Irwin
just to talk a bit about
what the state of the law is
so that we're all on the same page
in relationship to the First Amendment
and what it guarantees.
- Thank you.
It's such an honor and a pleasure
to be part of this terrific panel.
We certainly can and
should have discussions
what our ideal is in terms
of free speech on campus
and balance that against other values
but the reality is what the campus can do
is constrained by the First Amendment
because this is a public university,
the first amendment applies.
Above all the First Amendment means
that all ideas and views can be expressed
on a college campus.
The government including a
public university administration
can never prevent or punish speech
because the viewpoint expressed.
Now it doesn't mean that
free speech is absolute.
Long-ago justice Alvin Wendoholm said,
"There's no right to falsely shout fire
"in a crowded theater"
but the Supreme Court has said
that the categories of unprotected speech
are limited and there
being nearly defined.
We mention them to you because again
it very much can influence the discussion
we're having this afternoon.
The Supreme Court for
instance is not relevant
to our discussion.
It said that child pornography,
is speech not protected
by the First Amendment.
False and deceptive advertising
is speech not protected First Amendment.
That speech the government can punish.
For our purposes though
there is some categories
that might arise on college campuses
where speech can be prevented or punished.
Incitement of illegal activity
is speech that's not protected
by the First Amendment
but the Supreme Court
has defined incitement
in a very circumscribed way.
The court has said in
order to be incitement
there is to be a substantial likelihood
of imminent illegal activity
and the speech has to be directed causing
imminent illegal activity.
The court has said that true threats
are speech not protected
by the First Amendment.
A true threat is speech that
reasonably cause a person
to imminently fear for his
of her physical safety.
So if a person was
surrounded by an angry mob
and the mob was shouting at the individual
so the person feared for
his or her physical safety,
there wouldn't be speech
protected by the First Amendment.
Harassment is speech that's
not protected First Amendment.
There's no right for an
employer to say to an employee,
sleep with me or you'll be fired
even though it's just words.
In the context of employment,
in the context of education
usually to be harassment
it has to be speech
that's directed at a person,
it has to be pervasive,
it has to interfere with
the person's educational opportunities
based on criteria like
race, sex, religion,
sexual orientation.
Now you'll notice as I go
through these categories
of unprotected speech,
what I haven't listed
and that's hateful speech,
offensive speech, that Supreme
Court has made it clear
that speech cannot be
punished, cannot be prevented
just because it's hateful or offensive
even if it's very deeply offensive.
In early 1990s over 300
college universities
across the country adopted the
so-called hate speech codes.
Without exception every one
of them to come to court
was declared unconstitutional.
Why?
We all know that hate
speech can cause real harms.
We protect speech because
it is has effects.
If speech was meaningless
we wouldn't regard it
as a fundamental right.
The effects can be positive.
Speech can be ennobling, uplifting
but it also be hurtful
and cause great pain.
Hate speech does that.
You know what the courts all said
is it seems impossible to
define what's hate speech.
Usually the hate speech codes said,
prohibit speech that
stigmatizes or demeans
but what does that mean?
Also we've learned that laws
that prohibit hate speech
within our own countries
or on campuses here
are much more often used against those
that we're trying to protect
than any other group.
When the University of Michigan
adopted hate speech code,
literally every prosecution under it
was brought against minority students.
Most of all the Supreme Court has said
that hate speech is protected
because it expresses an idea.
And remember what I said to start,
all ideas and views can
be expressed on campus
no matter how offensive.
One other thing that should
inform our discussion
and your thoughts about this issue,
campuses can have time,
place and manner restrictions
with regard to speech.
Even though free speech is protected
in a public university campus,
it doesn't mean there's a right to speak
literally at any time, at
any place or in any manner.
The campus can restrict speech
so as to preserve the educational
opportunities on campus
and also to protect public safety.
You have a right to speak
but you don't have a right
to come in my classroom when I'm teaching
and disrupt what I'm doing
through your speech activities.
Nobody has a First Amendment right
to come of this auditorium now
and yell in away such
the panel can't go on.
That's what time, place and
manner restrictions means
and so the campus can limit where and when
and how speech goes on
to make sure that it doesn't
disrupt campus activities
and also to protect public safety.
The issue of public safety
has been much in the news
and certainly very relevant on this campus
and the Supreme Court in
the lower courts made clear
that the campus has the obligation
to protect speakers of all views
even it's expensive, the campus
has the obligation to do so.
But if the campus through
every possible effort
cannot find any other way
to protect public safety
then it can cancel a speaker.
That should be a last
resort, which will be only
if there's no other way to do so
and it can never be based on
the viewpoint of the speaker
but the campus does
also have an obligation
to protect the safety of
its students, its staff
and its faculty.
So I've covered for you in a
little less than five minutes
what I usually spend a semester going over
(laughs)
law students and undergraduates
but maybe the most
important thing I can say
to frame this discussion
is something that again
justice Alvin Wendohlom said.
He pointed out, we don't
need freedom of speech
to safeguard the speech we like.
We naturally let that happen.
He said what we really
need free speech for
is the speech we hate and he said that
the best response to
the speech we don't like
is more speech.
(applause)
- So David why don't you share with us
some of your thoughts about free speech.
- So I'm a scholar in
the English department
as Carol said I teach Shakespeare
and other folks from the 16th century.
My immersion in contemporary
free-speech issues
dates from this January.
I've been speaking as freely as I can
as an American citizen for some time
but this January I was involved
as wound up being about 100 faculty
in a letter to the Chancellor
that asked that Milo Anapolis
not be permitted to speak on campus.
Our rationale for this was
based on the distinction that
professor Chemerinsky
just drew between speech
that is protected and conduct
that is impermissible.
Our argument was that
the conduct that Anapolis
engaged in over the course of his tour
across other campuses in the nation
consistently violated the standards
of our campus code of conduct
and that it was growing
more and more egregious
as the tour went on
and for that reason we
asked both the Chancellor
at the time and the sponsoring
student organization
to rescind the invitation.
Since then a lot of water
has gone under the bridge
for this particular speaker
and I am told that he has
in receiving a new invitation to speak
agreed to abide by our
campus code of conduct.
Agreed to stop targeting
individuals for harassment
based on protected categories.
So we need to hold him to that.
I would, it seems to me that
a motivation for him to stick
to the campus code of conduct
is precisely what he is
holding a multi-day event.
We will be watching.
(laughs)
In this appearance I
wanted to articulate again
that distinction between
speech that is protected
and conduct that is impermissible
as well as my trust
that Anapolis is turning over a new leaf.
Fingers crossed.
I'd also like to talk in my capacity as
a scholar of the history
of the English language
a little bit about larger issues
of where freedom of speech has come from
in order to be enshrined
in our constitution
and where freedom of
speech seems to be going
in our imaginations
and the question that I have
for all of you is when you
picture someone speaking freely,
now in this moment what
scene do you envision?
Do you envision a great Roman orator
parading his opponents in the Senate?
Do you envision Mario Savio
on the roof of a police car
surrounded by a movement
of thousands of his fellow students?
do you picture a troll
sitting in his or her basement
provoking someone that
whose words are represented
on the computer screen,
a person whom he'll never meet?
The reason I ask is that
freedom has changed a lot
since the concept emerged
in ancient Greece and Rome.
There,
freedom was a class privilege.
It was the privilege of the
ruling class to participate
in the political order, the
Republican order in Rome.
Only a very few male subjects
of that order were citizens.
Only those few could speak
freely in the Senate.
The great contribution of our society
has been to push that privilege
toward a universal condition.
The 14th amendment declares
that the privileges
of citizenship shall not be abridged
for anyone who is a citizen
of the United States.
That universal privilege as we know
has not yet been achieved.
The law cannot restrict it but some of us
remain less free than others.
We will not be able to confirm
that universal privilege of speech
until all of us can talk back to a cop
regardless of our ethnicity or appearance
without fearing for our lives.
So universal privilege is a paradox.
Privilege is an idea that
comes out of a culture
based in domination.
A slave culture in which
the masterful few cherish their freedom.
How can we assure that
each of us is equally free?
How can we ensure that
our concept of freedom
does not entail domination?
Does not entail simply competing
to be the loudest voice in the room.
So I guess those are two questions.
One the question of the
scene that you picture
when you picture someone speaking freely,
the other this more abstract question
of how we can make our freedom,
make our voice as heard for each of us
as it is heard for any of us.
(applause)
- Steven.
- Thank you Chancellor Christine
and all of you for coming.
I think I'll just say a little bit more
by way of introduction about myself
and some still pretty new here
in the way of full disclosure
as the saying goes these days.
So I am in fact a card-carrying member
of the vast right-wing conspiracy.
I spent most of my adult
career in Washington DC,
mostly at the American
Enterprise Institute.
I write for National View,
Weekly Standard Commentary,
Wall Street Journal editorial
page, the usual places
and used to do a lot of media.
I've been on CNN a lot,
the news hour and PBS
CNBC and course most often on Fox News.
I want to give people a chance
to boo if they wanted to.
(applause)
I paused for a reason.
But I'm trying to practice,
I think I'm gonna try and
trademark this phrase.
I'm trying to prevacus a revux haux shield
and get out of my bubble
and so I am a telling
my conservative friends
that I'm now spending a
three-year hitch is an inmate
at UC Berkeley and enjoying it immensely.
(applause)
I have two opening thoughts about this
and the headlines of these.
One is that I think the
controversy of free-speech
needs to be placed in a broader context
of what might be called
the crisis of legitimacy
of democratic institutional
and democratic values today
I'll explain that briefly
and the second one is,
if we're gonna make some
progress on the way forward
in our conversations
about this on campus here
and around the nation, I think
we need to treat some
fundamental prior questions
that might set up what
the basis of any limits
on free speech might be.
Now Chancellor Christ has written I think
beautifully and eloquently
championing what I call
the old liberal tradition free speech
as understood by John Stuart Mill
that classical tradition of
stretching back to Milton.
I'm in heated agreement
with that point of view.
I know you want to
disagree but I can't find
any daylight between you and me on that.
The point though is is that
what was once a nearly
universal accepted principle
is no longer universally accepted.
I'm struck by polls
especially millennial's
that would be the student generation today
where you get a large plurality
sometimes more than 40%
saying they no longer think free speech
is a paramount principle or one that
should be elevated above
or put it this way, the
survey question suggested
some substantial support for
restrictions or regulations
of some kind on hate speech however,
we come to find that concept.
So that represents the very sharp break
from previous public opinion
surveys on free speech
going back decades but I think
it goes with couple of others.
The same surveys often find that
especially long millennial's
and not just in this country
by the way this is a phenomenon
that's going on worldwide
in advanced democracies.
Also a large plurality often over 40%
saying are not sure about
democracy itself anymore.
When everybody's kinda frustrated
with democracy these days.
You can see that in the unrest
in the various populisms
and all the advanced countries as I say
but that's a startling thing.
I think everybody, democracies
have always had problems.
I think pretty much there
is universal agreement
with that old line of Churchill's that
democracy is the worst form of government
except for all the others
that have ever been tried.
(laughs)
Except today there does seem
to be a renewed openness
to other forms of rule that promise
to make the trains run on time
which is something that troubles me
and then the third one
that troubles me a lot
and I know chapter Chris
you want us to argue some
but I think Arley and
I are going to end up
in close association on this.
Just some survey findings,
I follow survey data as
a political scientist.
So some survey findings
that really disturb me,
trust in institutions has
been falling for long time.
There's some variance,
higher trust in the military,
the church has been going down,
government and local state, all the rest.
Universities lately have
been seeing some wobbles
in public regard for universities
which ought to worry
administrators everywhere.
The one that really jumps out at me
is the survey question that says
something along the lines
of do you have confidence
on your fellow citizens?
Used to be the people
who said no was 35 to 40%
That's 15, 20 years ago.
Now the number's up around 60%
In other words a majority
of Americans are saying
they do not have confidence
in their fellow citizens
and the problem here is
when we see each other
as utterly alien, it becomes impossible,
difficult may be impossible
to be fellow citizens.
So I wrap up all these questions,
the controversies on free speech,
the legitimacy of democracy
and the growing divide that's
been talked about a lot,
the polarization of politics
as a crisis of legitimacy
and so I think that the answer
to the free-speech question
answer some progress in
our thinking about this
is going to be dependent on thinking about
some of the connected questions to it.
Now second point is,
here I'm a little bit
heterodox with standard
current conservative views on things.
I'm not entirely happy with
the view that hate speech
should deserve the unqualified protection
of the First Amendment,
however you define hate speech.
This could get weird
because in a small way
I could possibly end
up to the left of Irwin
on this question.
I think getting the left of you
is really pretty hard to do.
I have to say that some
of my union contractor,
I hope you don't really mind.
Think about how it runs this way.
I mean a lot of conservatives
are actually saying,
pay attention to this.
They say hate speech,
Milo M. Culture whoever,
hate speakers and then
some of them might say,
yeah, that's free-speech, First Amendment
I raise my hand and say wait a second,
are you saying that we
should invoke our right to be
let's see, bigots racist
homophobes patriarchs Islamophobes,
have I left anything out?
That's so the comprehensive list, really?
If that's really where
your argument's gonna run,
why should anyone listen
to anything we have to say
about anything at all?
It's a really dumb argument.
It would take too long, I
don't want to engage Irwin,
maybe in some events for your
book we might talk about this
but just to give one example
I'm not sure the Supreme Court was right
when it said the Nazis could
march through Skokie in 1978.
At the other day I come down I think on
I think it's her side
that we have to let them
exercise their right to free speech
but I think that's an arguable question
and I think it becomes arguable question
because the prior question
I want to raise is
either for a democratic
society or university,
the question we think we
should argue about this
are there any closed questions.
The principles of free
speech is utter openness
about anything right.
The there any closed questions?
It's a long subject so very briefly,
the ideological left and ideological right
have answers to that
question in the affirmative.
And I actually think they
overlap in some ways.
It could be interesting
to discuss at leisure,
hard to do here.
Once upon a time back when we used to have
Western civilization survey courses
that by the way and I think died out
not for the reasons the right usually says
but that's another story.
Sometimes we could argue the question
maybe Athens was right to
have executed Socrates.
I know a professor at Yale
who years and years ago
who used to torment his
students for a whole week
defending that proposition
and you know maybe they
were right to execute.
That's a fun one to play
out and the useful one.
It's one move through again
because it's of course
it raises the fundamental questions
of what are the boundaries
of what society can tolerate
while preserving itself but it's detached
from some of the hot button issues today
at least starting out.
It might be a format
for coming into all that
so I'll just close very quickly.
I'm gonna use the phrase campus orthodoxy.
It conceals a lot of sins.
It's inadequate but for
the purposes of brevity
I'm gonna say the campus orthodoxy today
is pretty much dominated by the left.
Wasn't always true.
The campus orthodoxy and so you know
the point is therefore
we should prohibit Milo
and Coulter or Ben
Shapiro next week whenever
from speaking.
The campus orthodoxy in 1950s was
if you were a communist
you would lose your job.
By the way an orthodoxy
enforced mostly by liberals
not by conservatives.
Conservatives never
really run universities.
Universities have been liberal
for at least since the 1930s
and in private industry we know that
you got blacklisted in
Hollywood if you were suspected
of being a communist.
Well today everything has revolved
and if you don't conform
to campus orthodoxy today
well we're not sure we're
gonna let you speak.
You are now blacklisted at Google
if you decent from certain
forms of the current orthodoxy
about diversity as popularly understood.
So we've switched places and I think that
my concluding thought
is this, I think that
if you're a liberal or leftist
I think you want to be very careful about
wanting to institutionalize
restrictions on speech.
Irwin made brief reference
to in the past we've seen
how this has worked to the
detriment of minorities
and it can again as a practical matter
I do side with the ASLU, I'm pretty much
a free speech absolutist
but do you think the
questions that give rise
to these controversies are entirely valid
and deserve a lot more sustained
and rigorous conversation dialogue.
Thanks.
(applause)
- Ellen.
- I'm a free-speech absolutist too.
You know my very first semester
here at UC Berkeley was
the fall of 1962.
This was the time of
the Cuban missile crisis
and I remember walking out my first class
was in when I was walking down the path
and facing toward Seder gate and seeing
not a mass of students but
hundreds of small groups
that were all engaged
in intense conversation
and I joined one of them and
the interlocutors in
this group were smart.
They were well-informed,
they were different.
Well I think Kennedy should do this,
no, I think he should do that.
How do we get into this mess and
it was just electric.
That all of these groups
of real strangers,
I think probably graduate
students were leading it
but in each one and I thought to myself
because I had come to Berkeley blind.
I never visited it,
just told by reputation.
I thought I'm in the right place,
I'm in the right place and just a year
before I retired from a career
of fabulous wonderful
exciting teaching career here
just for going down memory
lane I went down that same path
and wondered what I
would see and what I saw
was students, everybody
was on their cell phone.
Wait a minute,
what kind of collective public square,
what from the past can we restore
and put together with
what from our current fund
of creativity can we add to that.
I should say that that
magical view of Berkeley
that I always have and
value on free speech
it is linked with.
I always have in the back of my mind
when I have in this last five years
been researching a book called
Strangers In Their Own Land
which is
(laughs)
in which I tried to get out
of the Berkeley political
bubble of which I am a fundamental part
and take my alarm system off and try to
cross over what I call an empathy wall
to climb into the life circumstances
and the beliefs of people I knew
I would have profound differences with.
This amazing experience
and just last night
I came back from yet another trip
to see how they are responding
to Donald Trump's presidency.
They all voted very
enthusiatically for him
and one of the very first things
my friends in Lake Charles Louisiana.
These are mainly workers, pipe fitters
in the petrochemical
plants around Lake Charles
and construction workers
and custodians, teachers
and one of the first things
they said oh Berkeley,
oh man, you guys are violent
and they'd been watching Fox News
and especially one image
of a middle-aged man
with a Trump T-shirt on with
blood running down his face
and some young person with a black mask
smashed him over the head
with a skate board I think.
So that was their picture
and free speech was a joke.
Oh yeah, Berkeley and
free speech, yeah yeah.
So I had each time with
each encounter, no, no
actually that was a separate group.
We are all against violence
and it's not the students, I'm
sort of stumbling over myself
to say no no, it's like I remember.
I think we have a lot of work to do
while on campus basically to
restore what we really are
and I think what we
really are is a culture
that is comfortable with difference.
Actually interested in difference
not in the defense of don't tell me
new ideas that I disagree with but no, hey
how come you disagree.
So I think actually
that Berkeley could be the leader.
It could be the leader
in affirming free speech
but to do that we need
to beef up the culture
of exchange, respectful exchange
not just your polarizing
speakers but smaller forms.
We need theater.
Someone was proposing the Ku Klux Klan.
Get theater involved.
Get all of the various
avenues of expression
going here so that when
you have one speaker come,
it's in the context of a very lively set
of public debates that's.
I should just say that since
the publication of strangers
I'm just at my email
looking at things coming in
and there's a lot of energy on both sides
to establish common ground
across difference and there is
actually starting and
there is a group called
The Bridge Alliance.
You can Google this,
it's the umbrella group
that for some 70 or 80
different organizations
with funny names like
high from the other side
or a living room conversations
that was started by Joan
Blades co-founder of MoveOn.org
and many other organizations.
One of the founders is a
Berkeley faculty member
and some, I don't know
if he's here, John Ryder
who's in charge of Berkeley bridge
and so there's some talk of maybe
let's give you a sense
of what my email is like
two Berkeley grads have bought a bus,
filled it with of books
about the environment
and drove, I just saw
them down in Baton Rouge
and they're gonna understand
a whole year there
and I was putting them in touch with
some of the people I wrote about.
So I do see a lot of
possible common ground
and we do know that there are
six to eight million Americans
who voted for Barack Obama in 2012
and voted for Donald Trump in 2016
and there needs to be a conversation
just with this group for example.
So I see a lot of
possibilities and I think
Berkeley's just the place to
be a leader in this movement.
Thank you.
(applause)
- John.
- Well again I wanna add my thanks
to being part of this panel
and to our esteemed
leader Chancellor Chris.
The Chancellor when we're getting ready
she mentioned she wanted
some disagreements
so I hope not to disappoint.
A couple things by way of background
so I was at the ACLU
the leader of the ACLU
for a number years I think
that's where Irwin and I first met.
So I care deeply about these issues
but I've also written about these issues
and think about them a lot
I want to pick up on some of the threats
that people have talked
about and first of all
I think the country's in
a very incredible place
and I think in some ways I really applaud
this effort to have this
conversation over the year
but I don't think this is a
defining issue in the country.
I think the defining issue in the country
is the question of white supremacy.
(applause)
And it gets swept under the rug.
If there's an article out of Mid-atlantic
about Trump being the
first white president
and this is important.
The country has not been this
divided since the Civil War.
We are fighting the
Civil War and I would say
the south is winning.
These are huge issues and
I agree with a lot of stuff
that a lot of the panelists said.
Stephen top of the country
pulling itself apart
but I would say the country's
pulling itself apart
because we refused to embrace
the Gettysburg address.
When Lincoln talked about
the new birth of freedom.
when Stephen talked about
where all the people
who have been excluded could become
part of the political community,
that is what Trump and the
right-wing is fighting against.
It is basically the critical
question for this country
is can we have inclusively we?
We the people and there's
some people in power
in the White House who says no.
It's not simply the people
who disagree with me.
People are saying like
they did in Prescott
you are not human.
You don't belong.
(applause)
Many people who talk
about the First Amendment
and I think Dean Chemerinski
has been a friend for many years,
his recitation of the Supreme
Court I would agree with
except I think Supreme Court is wrong
and it's not the first
time they've been wrong.
They've been wrong many times.
They supported the fugitive slave law,
they supported segregation,
they supported keeping
women out of the world plus
they supported and so
it's not enough to say
this is what nine usually guys
and now we have some women.
This is what they think.
I'm old enough and Irwin's old enough
to know what noted the whole
meaning of the First Amendment
has been radically
shifted since the 1970s.
You cannot of had citizens
united in the 1970s
so what is speech?
Is money speech?
Is corporate money speech?
Supreme Court for 100 years said no.
This Supreme Court said yes
so it's not enough to
say well they said it.
We are moral beings and we have to sort of
think about things in a much deeper way
than just what the court said.
Now Chancellor Chris as others
go back to John Stuart Mills
and in the piece I wrote which
I'll give you the name of
this called Worlds Apart, I
talk about John Stuart Mills.
John Stuart Mills was brilliant
and he sort of laid the foundation
for both the concept of liberty
and the concept of free speech
and it's not surprising the
people site John Stuart Mills
but this is the point that I want to make.
He was wrong.
Part of the reason he was wrong is because
he didn't have the benefit
of what we've learned
in the last 100 years.
So Mills concept of
speech is quite simple.
He's a complicated man
but it's quite simple.
He said my liberty stops
at the tip of your nose.
What he meant by that and
he had a concept for it.
He called, other regarding
acts and self regarding acts.
So self regarding act was something I did
that didn't really
physically impact others.
Those are self regarding acts and he said
those are natural liberties
and speech is one of them
the state should not
regulate natural liberties.
But he said liberties that
actually harm someone else,
he called other regarding acts,
liberties that harm someone
else are other regarding acts
and individual does not have a right
to other regarding liberties.
Those are social liberties.
society decide how to deal with that
and I don't have time to
go into it in great detail
but the point that
Mills was making is that
some things injure other people
and both the concept
of liberty and equality
does not allow us to injure
other people with impunity.
Now most of the debate about
free speech and hate speech
or discrimination is really
predicated on the the notion
that speech really doesn't
hurt or if it does,
maybe a little bit.
So we talk about offensive speech,
we talk about hate speech
and when speech actually
we acknowledge that it hurts
we talk about speech acts.
So for example libel.
Why do we allow that to be regulated?
Because we say it hurts.
So when Mills wrote the ideas that
something short of a physical
injury was not a real injury
that same rationale was used to support
another case in the United States
called Plessy versus Ferguson.
When Blacks complained of
being segregated on rail cars,
the Supreme Court responded and they said
this is a stigma that injures us
and the Supreme Court's response was,
if there is an injury,
it's just in your mind.
It's not real and 60 years later
when another Supreme
Court overturned Plessy,
it said the stigmatic harm of segregation
is indeed a constitutional injury.
So part of the question
is does speech harm
and the question is obviously yes.
Some of you may have been
here a couple years ago
when Claude still spoke and
talked about stereotype threat.
We talk about trauma, we
talk about all the things,
all the ways we know that speech can harm.
It doesn't mean we shouldn't
be careful about speech.
It doesn't mean we should ban speech
but it means the rationale,
underlying jurisprudence for
speech is radically incoherent
and we avoid that incoherence
by denying the fact
that speech can in fact injure
and I would go so far to say
a lot of people and I don't
mean they should be banned
but a lot of people talking about
are engaging in harmful acts.
That's their intent.
They don't want to dialogue.
Now Emerson another free-speech scholar
talked about four different
reasons for free speech.
Talked about self autonomy,
participation, truth and stability.
So almost everyone who
talks about free-speech
in a serious way say that
speech is a multiple set of values.
What happens when those values conflict?
What do we do then?
So in that sense I would say
it's very hard in a deep sense
to be an absolutist because
you're talking about
complex set of values and
one reason we actually
don't like regulating speech is that
it violates the principle of
both autonomy and equality.
So in the little time I have left
I just want to throw out
a couple of the concepts.
I want to invite you to do
what was just suggested, to think deeply.
One of my buddies is
the head of the Enterprise Institute
and a very conservative so I don't think
people should just talk to
people who agree with them
but there's a way in which we can talk.
There's a way in which we can change.
I was at the ACLU and I brought to ACLU
the question of racial
harassment in the workplace.
The response from ACLU
was, that's just speech
and I said so so why is sexual
harassment in the workplace
not just speech?
Now think about this, in the
1970s women go to the workplace
and they see new pictures
hung up around the wall.
What's the response?
The response is not due at it,
you correct bad speech with more speech
and some people literally said
if they don't like the pictures
that men are hanging up,
they can hang up their own pictures.
It doesn't make any sense so again
I'll go into homes, talk about
the marketplace of ideas.
Most of us have learned that markets
are radically incoherent.
There are many different markets
and we don't trust markets
to totally create the kind
of society that we want.
Do we trust government?
No, but it means we have
to think of something
in a much more sophisticated way.
So let me just end by saying this,
one of the points is that if
we try to regulate speech,
which apparently we do
with child pornography,
apparently we do with libel,
apparently we do if you
split up with your girlfriend
of boyfriend, whatever and
you post their picture,
nude or whatever, that's regulated.
And why?
Because it's a harm.
Should we trust government?
I don't know, what do
we mean by government?
Do we mean the police?
The same people who are saying,
and I would venture to say
the people in Louisiana who say,
there's blood coming out of
demonstrators of Berkeley.
What about the blood coming
out of Michael Brown?
(applause)
There's an article I mentioned
the defining issue in the
country today is who belongs.
Can the other belong
and that's the question,
so we have right-wing
nationalist ethnic groups
popping up all around the country
as countries become more diverse.
That is what's challenging more democracy
and going back into
Lincoln's and can we think
of a new birth of freedom
where all are included
and again I actually believe
strongly in equality,
strongly in First Amendment,
strongly in free-speech.
What happens when they conflict?
I think the animating principle is that
belonging, participating is what holds
both equality and free-speech.
That's what we should be leaning to.
In Canada when they refused to allow
sexist speech,
they argued that Canadian Supreme Court
they were not allowing
it because it violated
the principle of belonging.
Now by some accounts, Canada
has more speech than we do.
Canada has more demonstration than we do.
They're probably not perfect
but I believe we can do better
and I think we do better
by engaging these questions
in a deep way.
Not in a sloganistic way
and not in a simple way.
Yes we're in a hard place and so
I'm not saying we have the answers
but I think we could do
better at posing the question.
Thank you.
(applause)
- So we have a really
interesting conflict here.
I think, really fascinating.
We have on the one hand an account
of the jurisprudence of the country
where what the Supreme Court has said
and John is really challenging that
as an adequate guide to
the harm that speech can do.
So I'd like our panelists to reflect on
the differences between physical harm
and emotional harm.
(laughs)
- I agreed with what you said John.
What I would add is that we
need here in public forums
to discuss injury.
What is injury?
Do we all see it the same way?
Do we recognize that obviously
in this country at this
moment and you're right.
It is about like the Civil War
and I do think race is
hugely central to this
but then we need a conversation about it
and that's exactly this is
the forum where it should be.
So rather than decide what injury
we should talk about it
and did I get you right?
- Two things, most social scientists today
neuroscientists, health
scientists can measure injury
so it's not totally subjective.
We all know trauma is real,
we all know that if you do something
you actually change the
structure of the brain
and yes I think we should discuss it
but I'm saying that some people
who don't want to discuss it,
they want to inflict the injury.
That's why they're asking for permission
to inflict the injury and I don't think
we should give them that permission.
(applause)
And in often times it's asymmetrical.
We have these false equations
so Trump can say that the
right wing KKK neo-Nazis
is the same as people who are asking
for an inclusive society.
Fundamentally wrong and so yes I think
we should have these discussions
and the last thing I would say is
there's a German
philosopher named Habermas.
He talked about what are
the conditions necessary
to have a true dialogue
and we actually don't
spend any time with that.
Throw people together and
see who comes out on top.
But I believe in talking
to people who are different
but also believe in paying
attention to injuries,
paying attention to
equality, pay attention to
and by this, Civil War.
Lincoln approached the South and he said,
I actually don't want a war
so if you will agree to stay in the union
I will help industrialize the south.
They said it's too late.
He said if you will stay in the union,
I will allow you to keep your slaves.
You can expand into new territories
but you can keep your slaves.
This is Lincoln and
they said it's too late
and they said we want to leave
and Lincoln said that's not on the table
so your point Stephen in terms of
there are certain things that are closed,
there are certain things
that are off the table
and I think that everyone here belongs
to be a close question.
That you can't say that transgender people
don't belong in this community, get out.
So that's what I would push for
and that's why I said
the critical question is
who are the we and that's the question
that this country has been struggling with
since its very inception.
- I see Irwin and Stephen both wanting
very much to say something.
(laughs)
- I do want to address your questions
does the physical and emotional harm
but I think one problem with
the discussion we've had
is I think we're combining
three very different questions.
One question is what is the current law
with regard to the First Amendment
that you as chance on
this campus must observe.
Second what should be the law
with regard to the First Amendment?
Which really is what John's talking about
and third how should we
all act in this context
and I just want to
comment on each of those
in light of the question you posed.
Be clear, the law of the First Amendment
now is that all ideas and views
can be expressed on campus.
The campus cannot prevent or punish speech
because it's offensive, no
matter how offensive it is.
Whatever you might think with
regard to the Nazis in Skokie
every court to rule on the question held
that the Nazis had the
right to march in Skokie
no matter how much offense that caused.
If the Chancellor of the campus
would try to prevent speech
because they follow what John believes,
they will get sued, they will lose,
they'll be liable for money damages,
they'll be liable for attorney's fees
and they make matters of those who
they're trying to suppress.
So we have to separate what
we might want the law to be
in the ideal, for what it actually is now.
Second we can talk about is John's time
but in other words what should the law be
and here I do think I disagree with John
not in terms of his description
of the pain of speech,
not in terms of description
of the nature of the country
but in terms of the basic
premise what campus are about.
I think it's the nature of campuses
that there has to be
full inquiry and ideas.
That's what academic freedom is
and it has to be that that
if we're really going to have
the academic freedom,
that kind of inquiry,
all ideas and views have to be expressed.
The alternative to that is
for campus to be able to say
this is the truth as we see it
and any other viewpoint
we can prevent and punish
and if John were in charge and
able to determine that truth
I might be comfortable with it
but we know is that the
people who are to be in charge
might find my views or John's
views to be too offensive.
If Southerners in the early 1960s
could have suppressed the
speech they didn't like
is offensive, they would have stopped
the civil rights protesters.
The only way our speech
can be protected tomorrow
is to make sure we're
protecting the speech
that we don't like today and so
to answer Chancellor Chris question,
the law is and the law should
be to draw a distinction
between physical and emotional harm.
Now in reality there
might be that distinction,
great emotional harm can
have physical manifestations
but the law is clear
where there's no right
to cause somebody to physically fear
for his or her safety.
You can't stop speech
because it's offensive.
It will cause emotional harm.
Well that then leads
to the third question.
What should we do?
Obviously we should engage
in discourse like this.
We should was also always remember
just cause there's a First
Amendment right to say something
doesn't mean it should be said
and also we should remember
that we as campus officials,
there's a Chancellor,
Provost, there's a dean
also have speech.
When the speech that goes on
that we think is offensive
or inappropriate,
we need to speak out against it.
We need to describe the
kind community we want to be
but I believe we are far
better off as a university,
a society allowing the speech to go on
than allow anybody in
power to punish speech
because they think it's too offensive.
(applause)
- So yeah I could have some good
rollicking fight with John I think.
For example I have a whole list of clichés
that I don't use the vogues,
I think they stop discussions
and circumvent and white
supremacy is one of them
although the phenomenon is real.
The whole complex is absolutely correct.
Let me talk about where we
agree to a certain extent.
I think that might be more useful
and then try a slightly
different answer that Irwin gave.
I don't normally do this
but I'd like to state
by bona fides on this question.
Students here won't know
this 'cause it's happened
12, 14 years ago but the adults remember
so senate Trent Lat was a
Republican Senate majority leader
and he gave a talk from
Strom Thurmond 180th birthday
or whatever it was and
(laughs)
and he said, adults remember this right,
and he said gosh Strum, if
you'd won the election in 1948
to be president maybe we wouldn't have
all these problems today in the South.
And he's like what the.
I think if we checked the chronology
I was the first conservative commentator
to write publicly that he had to go.
And some of my conservative
friends disagreed
and said we can't let the left
tell us who our leaders are
and I said, no, no.
We're not doing that.
When somebody said blithering idiot,
doesn't matter what the left says,
we ought to say who
can stay as our leader.
It was not unusual back in the 1960s
for a guy named George Lincoln Rockwell
to appear on college campuses.
I'm not sure how many of you
know that name the students.
He was the head of the American Nazi party
until one of his own members
shot in the laundromat in 1967.
How his guys end right.
I don't think he came to Berkeley
but I know came to Cornell
and I know about Cornell,
the execs I knew two
faculty members there.
One was Alan Bloom who opposed him coming.
His conservatives opposed him coming
and some liberals opposed it too.
It was not a strict left right divide
but the liberals wanted
to have him on campus.
Why?
Because they wanted to confront him.
I give more examples like this
and that seems to me it's faded
from a liberal university.
I hope that there is no fool here
who wants to invite
Richard Spencer to come.
Auburn University had to let him speak
cause as a public university
went to federal court
and said he has a First Amendment right,
you have to let him speak
but if he did, here's the
attitude I wish we had here.
I wish we had the collective attitude,
he's got a right to speak here.
We're gonna squash him like a bug.
And I would join the rally to around,
I'm not sure what phrase
is the right one to use.
Students describe,
marginalized students today
groups would be targeted and say,
we're not gonna be your champions,
we're gonna show up and--
- [Chris] Turn our backs.
- That's ne way to doing it.
If there's questions by the way,
I'm not sure this will work.
I have this line questions I would do
then we'll conclude with saying
that in all of your principles
you state essentially
mean you've renounced
your American citizenship.
So I'm gonna regard
you as an illegal alien
who should be deported and see
how you would take all that.
It's gonna be fun, right?
A lot of people might disagree about that
but we should repeat this attitude.
I think there's much to say.
I think we can make out
the intent of the people,
who come, who want to do people injury.
Emotional injury and otherwise.
I think that's absolutely
intelligible principle.
I do agree with Irwin that once
you make an official policy
and let governments use it,
I mean you really want
the Trump administration
running with that doctrine?
I don't think so.
I think that's as a practical matter
that's a problem but I
think that the argument
is very good one and I actually
strongly agree with it.
- So I now I'm gonna ask a question
that goes in a different direction.
The questions that keep me up at night
and so I'm looking for some advice
from this panel about them.
So we have two conservative speakers.
Actually one is a set of
speakers Molly Anapolis
is going to bring speakers with him
starting on 24 September.
Benjamin Shapiro is
coming on the 14 September
and two arguments that have
certainly been made to me
about restricting this speech.
I've consulted with a lot
of lawyers and they all say,
if these have been
legitimately invited speakers
by student groups both of which are,
you have to let them
speak but the arguments
for cancellation of an event are either
that it is going to
cause an imminent threat
to the safety of the community.
So my first question is what
would constitute that threat
and the second is that
there should be some people
say some reasonable limitation on cost.
This obviously won't
surprise anybody in this room
that it's gonna be very costly to
put in place the security precautions
we think are important.
So do you think either
of these safety or cost
should be limitations on
speakers brought to campus?
I might say with Milo,
one of the arguments
that's been made to me
is this is going to be
enormously disruptive of
the campus' functioning
for those four days.
If you were me how would you
be answering those questions?
(laughs)
- Let me jump in here for minute.
I think there's a lot that you could do
but I agree with Irwin's
recitation of the law.
I don't agree with lot
of what else he said.
Sort of notable illorious
trick he just did.
(laughs)
He basically define me
in a way that's not right
and then he argued against it
and John said he would say the truth.
I'm not talking about the truth
so I talked about engaging
with conservatives,
engaging with people who
are different than you
but there are bounds to it.
It's not unbounded.
Some I'm not saying you only have people
who you agree with and the thing
that the Supreme Court and most people
who claim they're absolute
priority of the First Amendment
don't really deal with entry.
They trivializes it so what Irwin did
when he went back, started
talking about offense.
I'm not talking about offense.
I'm talking about you can
and any medical person
you can check with this.
The difference between physical
and psychological injuries
is small and sometimes even greater
so what I would say is that
first in terms of cost,
contain the cost.
So you might say okay
this is a big size room
maybe we can get a little smaller room
and for safety we can have people sitting
in the aisles or whatever.
So you have a right to actually control
time, place and manner
and that's the current law
but I teach in law school with Irwin
and I teach students how the
law is constantly evolving
so I think from my
perspective to be penned
it's a copout to decide
this is what the law is.
Now for you Chancellor,
you may be stuck with that
but you are not.
You are here to actually make a new world.
You're not here just to inhabit the world
that we messed up.
(applause)
- David.
- I'm certainly in favor
of making the world new.
I don't think we have
that we can start now.
We won't be done by the end of this month.
Frustratingly.
To come back to the question of
what to do in the short term,
I'm not sure that I have an answer
given how close the constraints are on
what the law demands of us,
what are precedent policies are,
since I gather that if
we were to say oh no
we have a new policy,
that would be a kind of
prior restraint on these events.
In this situation I think that
the hand has more or less been dealt.
I think the medium term question
while we are pushing to redefine
the conversation at the Supreme Court
about the relation of speech to injury.
Is how here on this campus we can
reshape the conditions of events
such that speakers whose
only goal is to provoke
are not entitled to the
steps that Sproul Hall
based on the invitation of
a single registered student organization.
Whether that should be done
the firm way by redefining policy
or by a give-and-take, the dialogic way
that would hopefully make
registered student organizations
less interested in
demonstrating their rights
through outrage and more interested
in demonstrating the value free speech
through engagement and as I said before,
that sort of drawing for
the multiplicity of voices.
I do not know which is the more feasible.
It seems to me that the
latter is more valuable.
- And then Arley.
- I think my advice to you here would be
this is a place where you
should follow the law.
If you don't follow the
law you're gonna get sued,
you're gonna lose and
what's gonna happen here is
you're gonna make matters
of those very individuals
who you're silencing.
With Milo and Ann Coulture
most want is to be kept
from speaking on this campus.
And if you do that,
you're empowering them.
Those who think of this as progressive
cannot seed freedom of
speech just to the right
let them be the champions of speech.
Now an answer to your
two specific questions.
The law uses the word reasonableness.
You have the duty to
take all reasonable steps
to ensure that they're able to speak.
So you have to take reasonable steps
to ensure that they can speak
consistent with public safety.
If despite all reasonable
steps you conclude
there is no way to allow them to speak
and preserve public safety,
then you can stop them from doing so.
You have to show that it's a last resort.
You have to show you didn't do
so on the basis of viewpoint
but your paramount duty as Chancellor
is to protect the safety of the students,
the staff and the faculty on campus.
You have to expend a
reasonable amount of money
in order to do this.
Now what's reasonable is going
to be assessed in the context
and there is a point at
which you can't understand
when we say we couldn't
spend any more than this
but there is a clear burden on doing so
and what's important here to remember
is that freedom of speech
also has been crucial
for advancing civil rights,
for stopping the Vietnam War.
It's not just a tool of oppression
and if we don't allow freedom of speech
in these instances then
it really does empower
those who we are most afraid of
and give them a tremendous
tool to use against us.
- I have to say I really agree
with what you've just said
but I also agree that
psychological injury is real
and important and I therefore think
we need a series of public debates
on what psychological injury is
and not presume that all
people are on board with us
'cause they aren't and so
have a public debate.
I'm thinking of the debates on whether
the US should have gone into Iraq
and you had Christopher
Hitchens who said yes,
must and Polly Baldwin you must remember
that there was some Mark
Danner on the other side
and they went at it.
It was was a debate.
Now you might be offended with
the idea that wait a minute,
we've come a long way on this and so
you're talking to people who don't agree
with what we know to be true but I think
that's where we are at as a country.
I often have that feeling
talking to people in Louisiana
over those five years that wait a minute,
this is a conversation I
remember happening in 1962
and you're still with it, you know
and sometimes someone would say to me,
oh, I'll give you an example.
I interviewed a guy born on a plantation,
white Cajun 60s, a tea
party guy, Trump guy,
born on a sugar plantation.
He worked in oil all his life
so it's the old South and the new South
and I'm asking him, we're
out on a fishing trip.
I say okay race Mike I really,
let's just talk about race.
I don't think I'm
getting a clear read here
and he said oh, I'm a reformed bigot.
So I said well what's a reformed bigot?
What is a bigot?
Well a bigot is someone who hates Blacks
or uses the N word.
I never hated Blacks and
the N-word while 19s,
I did use it, Blacks also used it
but now I'm offended since the 1960s
he said been offended and on Facebook
if anyone uses that word I de-friend them.
So reformed bigot, okay.
So I say what was it
like when your school,
public school in Donaldsonville Louisiana
in the lower reaches of the Mississippi
now called cancer rally
and Donaldsonville,
tell me how are you
experience immigration,
he said well in high school,
the first freshman year
we had to Blacks and in senior year
half of our class was black
and I asked him,
so did you make any new friends?
And you know what his answer was?
A long silence.
You're making me think.
You're making me think,
in other words the conversation
that was a new thought to him.
So okay racism sure but the fact that
he hadn't even thought about it,
we need to talk about it.
We need to certainly
vere that conversation
needs to be moved forward
but even as you're saying
the whole nation is stuck here,
so we do have to go back over territory
we think is settled and get that out
in the form of public debates.
Many many of them, Berkeley the leader.
(applause)
- So now I'm going to throw
this open to questions from you.
It's gonna be hard to pass mic around
but we'll try.
- Hi, thank you for being here.
So I will take John's
proposition one step further
and Dean Chimernski please
don't hold it against me.
So I think that we have an
issue of definitions here.
I don't think that this is a
conversation about free speech
or different views or even
how UC Berkeley as a
University and us as students
should respond to next week's events.
I think this is a more
fundamental question
and to answer it, I
think we should first ask
what the object and purpose of the law is
in general and specifically
the First Amendment.
I think the purpose of the law
is to achieve certain values.
The law is at the service of those values
and not the other way round.
So even alignment and ends unto itself,
why do we protect free speech?
Not because the forefathers
had an absolute truth
handed to them and they just
sat down and codified it
but because they sat down, talked about it
and considered which
values we as a society
agreed we wanted to pursue.
So I think perhaps this is a time
when we should ask
ourselves the same question
that the forefathers asked.
One, what are our values?
This is a problem of definitions.
We have to define the value
that we want to uphold
as a society if as John said,
the values that we want
are justice, fairness,
belonging and are we the people
then how do we achieve them.
The law is not unquestionable,
the law is not inevitable.
The law is there to serve societal needs.
So do we achieve these
goals by allowing each other
to engage in hateful
speech that has very real
and tangible consequences
beyond emotional harm?
I don't know.
If that is not the way in
which we achieve those values
then I want to push against the notion
of the inviolability
of the First Amendment
because after all and this
the last thing I'm gonna say,
to amend is and I quote,
"To change a text in order
to make it more accurate
"or more fair,"
Thank you.
(applause)
- Other questions.
Yes you in the purple shirt.
I think that's purple.
- [Male] The other
conservative in the room.
Yes and I also wanted to say that
I find it both dangerous and threatening
the left's attempt to put
anybody who supported Trump
as a white supremacist.
I think that is very
unhealthy for the nation.
I also think that when I get
an email from the Chancellor
that says regarding the Trump's decision
to and decker that says
we call on the Berkeley community
to get together and respond within
whatever way they see fit.
The way any way they see fit
I think is broad territory
and I read that as kind of a a willingness
to tolerate violence you know
and I think that is
unhealthy for the community.
So what I would like to know is
what is the best response
from the top administrator
to a situation like
the appearance of Milo?
My view is we deplore your
views, we uphold your rights
and leave it at that.
I think there's been a wink wink, nod nod
towards violence and I
find that very disturbing.
Thank you.
- Well I want to be very clear
that I am very much against violence.
I won't tolerate it, I certainly
didn't mean those words
in the letter to imply that I did.
(applause)
- You with the computer.
- [Male] I want to thank
you for the great panel.
I think that there are some
things in your discussion
about free speech of
Berkeley there were left out
and so I'd like to
expand on some of those.
I wrote on length about
these in a September 5 op-ed
in the daily Cal criticizing
the Chancellor and mayor
for obstructing anti-racist
speech in August 27
when white supremacists came to Berkeley
and there are several counter protests.
This is a problem because the
discussion about free speech
on college campuses
has been entirely about
conservative speakers and
right-wing provocateurs
and not about progressive
students and faculty
who have been silenced for their attempts
to use free speech to protest.
So just to give the timeline on this,
on August 23 Chancellor Chris made
a very widely publicized
statement on free speech
saying that free speech is who we are
but two days later she
sent an email to the campus
endorsing the city Council's advice to
"Stay away from all of downtown Berkeley
"and to not attend protests."
One day before August
27, this was August 27
a coalition of 100 unions
and community organizations
planned to hold a safe
Bay Area rally against
hate on crescent lawn and
one day before that rally
UCPD barricaded crescent
one and this coalition,
these thousands of people
were forced onto Oxford Street
which made it more dangerous
because of the hicular accidents.
Not accidents, I mean the murder
that happened in Charlottesville.
So we had a rally in Oxford Street,
we protected ourselves
with the security team
and it was safe.
On August 28 and this is two
days after Chancellor Chris
told people to not go to the rally,
she said that by pushing
people onto Oxford street
she aimed to protect
our campus and community
and she applauded the
"Thousands who protested
peacefully in Berkeley."
I think I'll be quite honest,
I think this is shameful opportunism
to on the one hand encourage
people to not protest,
to push them off campus when they try
to use their free speech rights
and then to say that you
applaud their protest.
So the University is estimated
that it'll cost $13,000
to secure and staff at Bark Hall
which is where Ben Shapiro
is going to be speaking.
I'm curious Dean Chimmerinski
and Professor Powell
if it's legal to give a
one-time offer of $13,000
to bring a political speaker to campus
and my question to Chancellor Chris is
if you're willing to pay that much money
to staff Ben Shapiro's event,
would you be willing
to pay that much money,
my group the international
socialization organization
wants to bring Stephen Solito to campus.
He was fired from University
of Illinois in 2014
for sending out tweets critical of Israel.
He would have a lot to
say about free speech
in college campuses so if
we bring him to campus,
would you also pay $13,000
to secure an adequate venue for him?
Thank you.
(applause)
- Actually the security
cost in Cellar Barke
are being paid by the BCR.
What?
The venue and staffing costs are
because I believe that it was critical
to give Ben Shapiro the
opportunity to speak on campus
and it was the one venue
that was available.
- Yes.
What?
- [Female] Would you pay the same amount?
- Would I pay the same amount?
I certainly would pay the same amount
for a speaker from a
different point of view
and in fact I already
have made a commitment
to the division of equity and inclusion
for speaker series which
will be in charge of doing
and there's another group
that's needing to plan
a point counterpoint speaker series
with people with very
sharply divergent use
to talk to each other.
Okay, yes in the front.
- [Female] I don't have
anything nearly so well scripted
or planned to say but
there's such a difference
between words that we've
heard such as belonging,
common ground, who are we, engagement
and squash them like a bug.
(laughs)
So I know you don't mean like literally.
I'm just working on the assumption that
none of us are about violence here.
I'm interested in the emotional slide
from taking offense into violence
which obviously happens
pretty easily in heated times.
I don't think outrage and free speech
are in opposition to each other
which has sort of been presented also.
I'm really interested in silence
as a kind of freedom of speech.
Maybe related to turning
your back like you said.
Go to a speaker and turn
your back, that's something.
A lot of my friends felt
that an appropriate response
to some of the well-publicized
and highly anticipated
protests at the civic center
would be really encouraging
people just not to go,
to let people you disagree
with talk to themselves
and not create a news event out of it.
Like you said the thing
that these people want most
is to be martyred.
So I'm just I'm really
torn between the extremes
of just saying if I really disagree
and I don't want to be violent,
and I don't want to get hurt,
I should just stay home,
write something really eloquent,
do something constructive
that supports my beliefs
in another way, be silent and that's a way
of being exercising my free speech
or getting out there in engaging
and hoping I don't get hurt.
So I don't know if that seems,
if that's passive or
very consciously active
to turn one's back to not show up,
to not argue face-to-face,
to listen but not to give
others the opportunity
to what's the word?
Silence me.
Okay, I hope that made some sense.
- I want to suggest that sure,
that outrage in the First
Amendment were incompatible.
All of the victories that
progressives have achieved
through freedom of speech
and freedom of assembly
have called for outraged, fuel them.
I wanted to suggest that
that's a deliberate provocation.
The provocation of outrage by injecting
speaker like Anapolis into
the campus environment
was not the most constructive way
to produce dialogue.
I think outrage as a response
to Anapolis' presence
is entirely merited but I don't think
it's the only way that we can choose
to respond to the barnstormer
of a professional provocateur.
I think coming and yelling back,
affirming our own values
in his presence
is entirely among the right things to do.
You're right though that confrontation
invites just the further
escalation towards
all kinds of injury both for the people
who are present, for
the people taking part
in the confrontation and
for the campus more broadly,
the atmosphere of fear
it may in envelop not to Sproul Plaza
but the rest of the campus.
I think there's a big difference between
showing up and turning your back
and going to another venue and
using your voice and your rights
in a more productive, in a way that
is directly productive and
about a different topic
and I think that both the silent protest
and the desire that Ally
suggested to produce
a counter-programming activities
that actually celebrates
our rights and our voice
in a joyful way or another option
I know that the departments
are more creative
and of the campus are thinking about
creative counter programs even now.
My vote is for Hamilton sing-along
but we'll let you know how it goes.
- You could go to the
offensive presentation
and all 100 of you turn
around to express it
but you can have something
written on your back
as to what you think and you know
backing up a little I'd love to see
the offensive lectures
one of a dozen lectures
going on that day in other words,
more happening.
- Counter-programming.
- A counter-programming exactly.
It's as if without intending it,
the Berkeley campus culture a little bit
has been influenced by the public culture
and the media in which is highly polarized
and where people aren't having
respectful conversations
about meaningful issues.
They're yelling at each other
and verbal bombs are going back and forth
and so in a way a lot of
people are ducking their heads
and lying low and instead
of being polarized
like the national culture is,
let Berkeley be the leader in rising up
and creating a great deal of
debate in every kind of form.
Let's make it up and in a way therefore
be an alternative to the national culture,
not a reflection of it.
(applause)
- [Female] I'm not
gonna say anything about
what that means to squash the bug.
- What I meant was I
have a robust attitude.
Here's what I mean.
Let me clear more seriously sorry.
I was being a little flip.
What I mean is that universities
ought to be the best
institutions for confronting
this kind of problem.
That's the premise of what I'm saying.
We're losing this ability
for a whole bunch of reasons.
I can play out a lot of demagogic speakers
and the non-university
audience do a lot more damage
and inflict a lot more hurt.
A lot more mischief so my point was
when I said squash them like a bug,
I meant have the disposition that,
we have contempt for you,
ridicule by the way is always good
we're gonna out argue, we're gonna have
some counter-program.
The whole menu of things to show.
You give us the best and
we're gonna run out of here.
You're going out of here humiliated.
That's the disposition I wish we had.
That's not perfect and as I said,
I think there needs to be some thought
to the people who are genuinely aggrieved
by someone who comes.
One more thing that Chancellor Chris,
one practical difficulty with
what, when is Milo coming?
Two weeks right.
I don't know the guy by the way.
I can boast that I was a victim
of one of him tweet storms once,
for criticism I made of Donald Trump
so I can wear that as a badge of honor.
One difficulty you
have, the university has
is which Milo is gonna show up.
He's a Jacklin hight character
and I would suggest this,
if you is a sometime and inclination,
go on YouTube and look up his name
and he got hundreds of YouTube videos.
Pick 10 in random.
You'll see a Milo who's in
his Cambridge University
business suit doing an
Oxford style debate,
pretty sober, he's hair will be dark.
You'll see the Milo with a feather boa,
with his hair dyed white
and carrying on like crazy.
You can see among some new shows
where he's running circles
around the news anchors,
I think the guy is very talented.
Of course I have also there's
one from his Apache University
of Massachusetts Amherst two years ago
where his speech was five seconds long.
Anybody know this one, he got up
the microphone paused
for a moment and he said
feminism is cancer and then he walked off.
That was designed to
blow the place up right.
That's not the Milo you want and
I have a hunch, although
I don't know this.
I don't know him.
I have a hunch the one who shows up
in a couple weeks may be better behaved.
I hope I'm not wrong about that.
I could be wrong about that but we'll see.
He's a gentle high character
and that doesn't span the range there
so there's a difficulty
'cause we don't know
how that's going to go.
- The woman in the black shirt
right in front of the camera.
You.
- The first is many of
our students and faculty
have been attacked on social media,
have been threatened violently,
people threatening to
come into their classrooms
and set them on fire for
expressing their free-speech views
on social media so one of the things
I'd like us to think about
are the ways in which
the question of free
speech is fundamentally
and radically altered by social media
because I think that's something that
we haven't actually addressed and I think
that may also be one of the
reasons that millennials
have a very different kind of
relationship to social media.
Secondly on the question of violence
and on picking up the
question of imminent safety,
safety threat it's not just
about abstract students,
abstract faculty, it's
also about our staff.
Some of whom are here today
who have to come to work
in what is extensively going
to be a hostile workplace
and it's not just Milo or
Ann Coulter or Steve Bening
it's their supporters that
create a problem for us,
that create issues of safety
and this is not just again,
this is not just abstract.
Our staff are the first
people who have to deal
when our printers get hacked with racist
and violent prints that just
spin out all of our paper
with swastikas etc.
They have to answer the phones
when we're being threatened
in our department.
When this is happening, I am
really concerned about safety.
I'm also concerned
about safety as a parent
of a college freshman.
I don't want my kid to have to engage that
and also when we push it off campus,
we push it next to Berkeley high
and Berkeley community college.
So we're making our surrounding
community vulnerable
so I want us to think very carefully.
I do actually think that
this is in an imminent threat
to our safety and I want to figure out
how we can address that and frankly
I'm proposing that we boycott
that this is not safe for us
and so students shouldn't
have to go to class.
I shouldn't have to teach
in an environment in which
for a week, that this
is going to be a circus
and I don't know if somebody
is actually going to
follow me home and knock me over the head.
(applause)
- So does anybody on the panel
want to speak to those questions?
- I had a couple of thoughts
but first of all, thank you.
And it's helpful because to me sometimes
as you said these are too abstract.
There was a news hung in a school,
local high school here yesterday.
You have the secretary of education saying
she's rolling back stuff on
terms of protecting women
in terms of sexual harassment.
So these bizarre threats and it's actually
coming from the top and
I respectfully suggest
the solution is not to be silent.
This is something much more pernicious
than just even speech.
This is a concerted effort and so
one of the things I
hope University will do
in addition to thinking
about how do you protect
students, faculty, our
environment and I think yes,
Irwin's right in terms of
you have some constraints
in terms of the law but affirmatively
what do we stand for?
What are we as University
and we stand for yes,
we stand for free-speech,
that's one of the reasons
I came out to Berkeley or
out to California 1965.
We stand for something else as well.
What's our affirmative values
that we can really sink into
and make those animate.
So the safety issues are real.
People are afraid and they should be
and I don't think the answer is stay home.
To withdraw, your point in terms of
democratic institutions die
if people everybody withdraw,
if everybody goes inside.
So I'm not saying there's an easy solution
but I hope we really grapple with this.
How do we really make
this a safe community
day in and day out.
How do we actually animate all our values
and I'll be concerned if we only animate
the value of free speech.
(applause)
- The man with the gray
shirt on the aisle.
- [Male] I'm really grateful
especially to colleagues
who've addressed issues of
safety for staff and faculty
in the context of emerging violence.
I think it might be helpful
since there remains I think
a degree of sentimentality
around your offensive ideas
to clarify the circumstances
that we were facing
when Malena Bliss was headed to campus.
That cause me and pro Landroff
and others to sign a letter
asking for his invitation to be rescinded
and that was not merely
that he had appeared
in front of the campus and
said feminism is a cancer
but that the University of
Wisconsin and Milwaukee,
he had targeted a trans-woman individually
for sexual harassment in front
of a large group of people
had projected a photograph of this woman,
had traumatized this woman and at a moment
where you see Berkeley was
facing its own internal debate
about the limits of sexual
harassment discourse on compass
it struck me and a number of other people
as massively important that
we protect our students
from that kind of direct targeting.
This is in other words the
question of the distinction
between hateful ideas and legitimate ideas
but the distinction between
speech and violent conduct
and harassment and the
truth of the matter is
that this moment this whole
discussion on free speech
is at least partly designed
to bring harassment discourse
more fully into legitimated speech.
That is the stated goal
of people at Moly Anapolis
who target millennial's,
call them snowflakes
and try to attack and
embarrass and humiliate people
in any number of grounds
but perhaps it's not to
debate outrageous ideas
and for us to enjoy that
but really to legitimate
and normalize a culture
of targeted harassment
of members of protected groups.
So to that extent, I think
one of our responsibilities
as a community is really
to think not just about
how do we recognize freedom
and what kinds of freedom
do we want to cherish and protect
but how do we stand up
for community values
of minorities in our community
when they're under attack,
not by millennials who
misunderstand Twitter
but by the executive branch
of the US government itself.
Thanks.
(applause)
- So Irwin would you like
to talk a little bit about
I think John raises a
really interesting issue
of when it is that speech in
a public setting like this
becomes individual harassment.
It will be good to draw that distinction.
- To be clear there's
no First Amendment right
to reveal private information
in public about somebody.
That if somebody were to reveal
very personal information
that's not speech protected
by the First Amendment.
There's no right to say false things
that are injurious to the
reputation of others in public.
There's no right to say
things that cause people
to reasonably fear for their safety
so if somebody's getting email
messages that are threatening
I would hope that the
campus would investigate
take disciplinary action at
the student or faculty member,
turn to the law-enforcement authorities
and somebody else for prosecution
'cause there's no right to make somebody
fear for their safety.
There's no right to engage
in what would be regarded
by the law as harassment.
We said earlier harassment
usually requires
that it be directed at a person,
that invasive that interfere
with their educational opportunity.
Now the usual remedy of the
law when these things happen is
that the victim can sue for money damages.
The problem with that is victims generally
don't want to sue for money damages.
They want it all to be over.
They don't want to take
all the time and effort
going to the legal system.
What they really prefer is if the campus
would just prevent that
speaker from going on
and speaking it all.
The law doesn't allow that.
It's called a prior restraint.
I'd love to debate John
about what would be
our ideal in terms of society
with regard to speech.
Would we be better off if
the campus had the power
to prevent the speakers
that they find offensive
from being there?
We might think that's
ideal but I still worry
that that's what would
have kept the students
from protesting segregation or
from protesting the Vietnam War
that when you give the
government the power to censor
the speech that we find offensive,
it's gonna be used
against us but the basic
bottom line answer to your question is
the law generally doesn't
allow preventing people
from speaking because we
think that they're gonna
say something that's unprotected speech.
- We have time for two more questions.
Let's see, you in the red shirt.
- [Male] So something that I've
been trying to answer myself
you can imagine a situation in which
thousands and thousands of people,
each individually will say something
that is clearly protected speech.
I don't like this person,
I want you to go away
but in aggregate it adds up
to something that feels like harassment.
I'm curious how to think about that.
- Anybody want to address this?
- I think it's an excellent question
and it gets back to Prof. Rayford's point
about the real damage
that anonymous targeting
through the Internet can cause
and we're talking about
this because Anapolis
was a master of this particular technique
of sort of singling out an individual
through an apparently innocuous Tweet,
back when he was still allowed on Twitter
that would then direct this
sought of rainy ecosystem
of trolls to
open this fire hose of anonymous hatred,
anonymous harassment.
The law as it's been articulated here,
just seems not to have caught up with
what speech is now.
The way that speech is
no longer mediated by
a speaker who speaks as
I am speaking to you now
or by an audience who is present.
This I think is an
opportunity for a conversation
about present values
and present technology
to work together to try to push the law
to some more sophisticated account
of the harms that can be
projected across virtual media
through which so rapidly,
so diffusely, so intensely
yet without any kind of accountability
under the current legal paradigms
either for the platform or
for the individual pseudonymous speaker.
- In the green shirt,
you've had your hand up
for a long time, you.
- [Female] I'm Susanna
and I'm from Tennessee
so I've been participating
in free speech for a while
and what I want to know is the
people coming to this campus
like Milo for example,
he puts the number of icy
up on the board and says if you know
as he calls them, illegal immigrants
then call this number.
This is gonna hurt people in our community
that I care deeply
about and we've said how
by turning people away we would
make them martyr out of them
but we're not gonna change the
law until we fight the law.
Shouldn't we take this
opportunity to be a leader and say
we're not gonna allow
people on this campus
who will hurt our students.
Wouldn't us fighting against them
make us a leader and to
try to counter the speech
and also we had pamphlets
for a counter protest
that you were talking about so
if anybody would like them, we have them.
Thank you.
(laughs)
(applause)
- Would anyone like to
address the question?
- I find so appealing the notion you say
that everyone is this room should be clear
about what will happen.
If the campus were the
same Milo's not welcome
to speak to the reasons you have.
Milo and his lawyers will
immediately go to court,
they will immediately get an injunction
so they be allowed to speak.
The campus will have to pay
Milo's lawyers attorney's fees
and perhaps some money damages as well.
What's then been served by excluding Milo?
Also what will happen will be
Berkeley will be the poster child
for the suppression of speech.
Was Berkeley as a campus
and its reputation
enhance what that would
happen last January?
I don't think so, so I think what you say
may be a very romantic notion.
Let's stand up for community
and keep Milo from speaking.
I'm telling you if the campus were to try,
it would ultimately be
very counterproductive
and we wouldn't accomplish what you want.
(applause)
- I think we have time
for one more question.
The man in green in the corner there.
- [Male] I've been on campus now 10 years
and there's been a couple of massive
protest demonstrations and all that
and in each one of those those,
there was events just like this
and there was beautiful
speech and for those of us
that have the privilege
of showing up we can
and many of us have to work
and can't come to these events
couldn't come and their voices weren't
part of that conversation
which is okay, I understand.
What I don't see us spending enough time
and I appreciate the clarification about
some of the way the
counselors about safety
and cost of the campus
and in that parameter
I'm curious if cost of
the campus is staff time
and the over hours that
people having to spend
in preparation for all of these things
and is that considered in that
and their emotional
distress 'cause some of them
are being asked to do stuff
that we didn't sign up for
and it's not in our job description
but we have to do now all of a sudden.
There's I think like over
thousand student organizations
on campus and just two
were taken of the time
of the majority of the staff
and the resources that
are being allocated to
two student organizations
aren't being equitized
amongst other student organizations
that have just as much if not more needs
that are imminent threats
to their well-being
and many different scenarios.
Are all of those costs
part of that conversation
and the other additional cause is,
what happens to the student
that is being encouraged
to show up and to be public
and to voice your opinion
and to be engaged shows up is injured
or injured someone else
and then find themselves
in a position of they're gonna end up
in academic probation or dismissed
and then nobody shows up to that student,
a concern hearing.
Nobody shows up to that
session in the courtroom
because I've been in that courtroom
and nobody shows up and I also know that
when I show up to these protests,
100 faculty might have signed that letter
but we're hundred faculty
present that night
of Milo being there and being
a protection of the students
that were there because when
we say we need to act better
and be a university in those moments
but then we militarize
the campus in that defense
then what are we being
better off in those moments
and when you militarize a campus,
you're dealing with the
unconscious and conscious buys
of the police and militarization
that targets people that historically
have been vulnerable already.
So when you add all of those things up,
when do we have that conversation
and do we have the expenses ready to go
for all of the injuries
that that's gonna happen
and in the moment of worst-case scenario,
of somebody getting run over
or somebody getting shot
and somebody getting killed,
what's the chart string to pay that off?
(applause)
- Yes we're very aware of the burden
that is staff who have been working
with these extraordinarily
challenging events
and we're doing our best
and really expending
considerable resources to ensure
the safety of our students.
We don't want anybody to be hurt.
Well thank you.
This has been exactly
the kind of conversation
that Arley was asking for.
Conversation which clearly
not all of us agree
about all these issues but I think that
we have to have more of these events
in which we can talk both honestly
and with thoughtfulness and
civility about this issue
that's important for all of us so please
thank the panelists again.
(applause)
(drum beats)
