- All right, good evening.
Thank you all for joining us.
It's great to see so many of you here,
and I hope that, like me,
you're looking forward to learning a lot
in the course of this conversation.
We're really grateful to
have these terrific members
of our faculty here to lead a conversation
about Charlottesville.
Tony Thompson, Kim
Taylor-Thompson, Burt Neuborne,
and Bryan Stevenson, who's just flown up
just ahead of the hurricane
to make it here, so,
will you join me to start,
just by recognizing and
thanking these faculty members
for leading this conversation.
(audience applauds)
We're going to do our
best to have this be a,
a true conversation and so,
I'll kick it off with a,
with a question and, from
time to time will prompt
with another, but, we hope and expect
that there'll be lots of
interaction among these four,
giving their thoughts on
the, the various events
that could be collected under
the title Charlottesville.
Why don't I just begin by
asking each of you to tell us,
what was your first reaction,
to what you saw happening
in Charlottesville?
(audience laughs)
- Well, I mean for me, working
in Montgomery, Alabama,
it wasn't startling to me
to know that we were going to
again see the evidence of our,
our historic failure to deal honestly
with the legacy of racial
inequality in this country.
I mean I, I think
Charlottesville is a symptom
of a larger disease.
And the disease is is that we
are burdened in this country
by a history of racial inequality.
I really don't even think
we're free in this country,
that our history of racial inequality
has created a kind of smog
that we all breathe in,
that creates conflict and tension,
and we have moments where
that tension is made dramatic
as it was in Charlottesville,
but it's always there.
And, I think, when we have
these dramatic manifestations
of it, we have a hard time
getting our minds around it,
and that's what I saw
happening in Charlottesville,
it didn't strike me as particularly
newsworthy or eventful.
I think the president's comments put it
at a slightly different category,
because historically when you
have extremism, in any place,
but certainly extremism from
people who are self-identifying
as Nazis, or members of the Ku Klux Klan,
we've learned that you're supposed to say,
that is unacceptable, that is wrong,
that is not core to our values.
And when the president didn't say that,
the manifestation of this
problem became, I think,
much more serious and much more
significant, and so, for me,
it just creates one more opportunity
to deal with these
underlying problems we have
in this country, about how to recover
from a history of slavery
and lynching and segregation,
and putting Japanese-Americans
in concentration camps,
and demonizing people
because of their color.
And for me that's still
the paramount question
that we have to answer if we're
gonna make forward progress.
- Kim?
- Yeah, I guess I agreed with
everything that Bryan says,
which is not unusual.
But, I wasn't surprised.
I didn't feel an emotion
that was, you know,
an emotion of shock.
I was outraged and I was angry, and,
particularly as I saw
people marching shamelessly
and brazenly and saying the
things that they were saying,
without any feeling that they
needed to hide their faces
or feel any shame about
it, so that made me angry.
And then my anger turned to heartbreak
when that move to create
some sort of racial terror
turned into murder the next day,
and it just broke your heart
to see something like that happen.
But, but I wasn't
surprised, because we had,
and I certainly wasn't one
of those people who said,
how could this happen in 2017?
Because we've been seeing things like this
throughout my entire life,
and we certainly have been
seeing an uptick in hate crimes,
an uptick in racialized violence,
an uptick in the kinds of hate speech
that creates a foundation
for this kind of activity,
so, I wasn't surprised.
I was, sickened by it, I felt tired,
and I find that I'm sick and
tired of being sick and tired.
And, and so what it made,
it said to me was that we
need to do a lot more work,
and it's work that we've been doing.
But I think what Charlottesville did
was it just took a band-aid off of
what is the festering sore
of racism in this country,
and as Bryan suggested,
we don't pay any attention
to that festering sore, not
sufficient attention to it.
And so maybe this makes us look at it.
- Well, for me, the, there was chronology.
Question, how did I think about it
before I learned about the murder?
And how did I think about it afterwards?
Before, I was treating it
as a kind of normal event,
as, as both Kim and Bryan pointed out,
it doesn't surprise me that
there would be a manifestation
of racism in this country,
and it doesn't surprise me
that there would be strong
counter-demonstrators trying
to speak out against it.
I've seen that in my life as
an ACLU lawyer a lot of times,
and, it was a, it was to me,
just another in a long
series of events like that,
and in some perverse sense, and I,
I hope people don't misunderstand this,
I almost welcomed it, because I was afraid
that the upsurge in racism and,
Nazism and anti-Semitism,
that was so on display in that, in that,
in those television pictures
all over the country,
I was afraid that people were ignoring it,
and that people didn't
think it happened in 2017.
I knew it was there, we
all know that it's perking
down under the surface, and getting it out
into the sunlight struck me as
being a way to start dealing
with the counter-measures
that had to made.
And then of course there was the murder.
Then the crazy guy drives
the car into a crowd
and kills a wonderful young woman.
And at that point, everything dissolves.
At that point you're not
talking about anything
that law can deal with.
There's no way you're gonna stop a madman
from getting into a
car and killing people.
We're, we're learning that in
Europe, we learned it here,
and, and it transformed
Charlottesville, for me,
into a kind of, sort of desperate question
of how we're gonna control
the worst elements among us,
if they, if they're, if
they're gonna use force.
And then the next day, and
this is just a technical thing,
this is from someone who's
done this a lot of times,
I said to myself, where
on earth are the cops?
The only way, in my experience,
the only way you deal
with this kind of passionate
counter-demonstrators
in a relatively small space
is that you count on the
good sense of the police
to have a massive presence there.
Not a militarized presence,
but a massive presence
that will dissuade the
crazies on either side
from engaging in violence.
And the Charlottesville
police were absent,
they were just absent.
And so, I, to me, it's a failure
at lots of different levels,
but I ascribe a, not the murder,
I don't blame the murder on
anybody, except a crazy person,
but the, but the fact that
the, so many people were hurt
and that there was so much violence,
good local administration
can minimize that,
and it didn't happen in Charlottesville.
- Yeah, I had a little different response.
I think that, first I should say
that this was such a personal
event for some of us,
we're still forming kind of
our conclusions about it,
but I think that the
pre-conditions for Charlottesville
have been growing for some time.
And I think that the last election,
and I think that some
of the public discourse,
we called it during the
election process a coarsening
of the debate, the national debate,
but it was more than that.
It was the unveiling of a
white supremacist philosophy
that was allowed to come to the surface,
and so having individuals who
at one point in our history
would feel like they needed
to march with a hood,
instead marching with
tiki torches and chanting,
set a different tone I
think for the country.
And I think that, the
issue for Charlottesville
is really a fundamental
issue in this democracy,
and it's a fundamental issue
about the morals and values
of this country.
And so I think that it is a turning point,
I think that it is significant,
and I think that our response,
our collective response
is gonna really determine
kind of where we go
as a nation right now,
and I think there's been
a considerable vacuum
of leadership, and
that's what set the tone
for a lot of this, and so I
think that as we move forward,
thinking about how we will respond,
and what is the tone as
a nation we wanna set,
are the most important
questions we can ask about.
- So Tony, part of your answer
highlights something else
I wanted to ask about,
which is, of course,
race has always been a
fault line in this country.
Racial injustice is a fault line,
is a theme in this country's history.
Much of Bryan's work is devoted to,
the effort to ensure that there's
broader public recognition
of that history than is often the case,
yet at the same time, I
think many of us feel,
and I think maybe I heard you
say that, in recent years,
there seems to be a, even
added salience to race.
That there's an increasing, focus on race.
I guess the question is,
do you agree with that?
Is that how you would
talk about, and racism,
is that how you think
about the recent past?
Is that part of the context
that informs your thinking
about Charlottesville
and, if so or if not, why?
- Well, lemme say that,
y'know, we as a nation,
in the founding of this nation,
never have dealt with the
fundamental questions of race,
and we've continued not to do that.
And so inequality, housing discrimination,
wealth inequality in the
country, all, and criminal,
the criminal justice system
and mass incarceration,
are in part a function of our inability
to deal with the question of race.
Race is a social construct,
and so it's used by one
power group to disenfranchise
and disempower another.
And our inability to deal
with race as a nation
has led to this pre-condition.
Do I think that because of media
and because of the current electoral cycle
and what has happened,
is race more salient?
Yes.
The one thing I wanna is
that, for a lot of people,
we, this notion of race is
that it's something separate
than the substantive work.
So we can say, and I've heard
it said in this institution,
oh he's a great judge, or
he's a great prosecutor,
he's a great cop, he's
just, he's also a racist.
And for many of us, we believe
that those are inseparable,
that you cannot pull
apart someone's approach
to white supremacy and the
substantive work that they do.
- And can I just add to that,
I mean because I do think that,
there is a historical
force behind the conditions
that haunt America.
I think we're a post-genocide society,
and we haven't done the
things you're supposed to do
when you're a post genocide
society to get better,
to recover.
I think when white settlers
came to this continent
and they killed millions of
native people through famine
and war and disease, it was a genocide
but we didn't call it a genocide,
we said that these native
people are savages,
and we created this narrative
of racial difference
to justify this abuse.
And for me, that narrative
of racial difference
was the true evil of American slavery.
We had moments that had starts and ends,
but we never really
confronted the narrative
of racial difference that
we used to justify slavery,
we said black people are
different than white people,
they're not fully human,
they can't do this, they can't do that,
they got courts to say they're 3/5 human,
and for me that was the true
evil of American slavery,
and the 13th Amendment talks
about ending involuntary
servitude, and ending forced labor,
but it doesn't say anything
about ending this ideology
of white supremacy, which was
at the heart of the problem.
And so that beginning and end
doesn't really apply then,
then we had decades of
terrorism and lynching.
People, black people pulled
out of their homes, murdered,
burned alive, slaughtered, and
it caused millions of people
to flee the South and, we don't
understand in this country
that the demographic geography of America
was shaped by racial terrorism.
The black people in Cleveland
and Chicago and Detroit
and Los Angeles and
Oakland didn't go there
as immigrants looking for
new economic opportunities,
they went there as refugees
and exiles from terror
in the American South, and then
we had the Civil Rights era,
and once again, I think courageous,
heroic people won passage
of the Civil Rights Act,
and the Voting Rights Act, but the South,
and those who believe in white supremacy,
they won the narrative war.
'Cause we never held people accountable
for holding up those signs
that said segregation forever.
And now we're living in an
era where that same thinking,
that same dynamic is shaping
the political environment
and the economic environment,
and when you keep losing
the narrative battle,
and we don't really deal with this force,
it's like a mudslide that
just keeps building up,
and at some point, there is this release,
and I think that, if we don't do better,
we're gonna continue to see this increase.
People thought, oh, Barrack
Obama got elected president
in 2008, we're now in
a post-racial society.
I haven't heard anybody talk
about a post-racial society
in a long time.
- No.
(audience laughs)
- And that's because,
I think we've recognized some things now
that we were unwilling to recognize then,
which I think adds to the
intensity of this problem.
And the other thing I
think makes it salient
in ways that we haven't
confronted, I'm now,
I'm gonna say more than I should,
Tony and I went to law school
so I really should be careful a bit,
but I'm gonna tell you that
I am 57 years old. (laughs)
- Thanks Bryan.
(audience laughs)
- I, I--
- Don't go there Bryan.
- I'm tryin' not to.
I started my education
in a colored school,
in the rural South, and
lawyers came into our community
and enforced Brown v. Board of Education,
and they opened up the schools.
And but for those lawyers
coming into our community,
I wouldn't be sitting here.
I came it, I'm a product of
the civil rights movement,
and a lot of people thought,
oh this, the world's gonna get better.
And I went to college
and I went to law school,
and I've been practicing law.
And when I went to coll,
high, to elementary school,
the challenge I had to face was
that there was a presumption
that I wasn't like the other kids,
I was dangerous, I was guilty,
and that same presumption
of dangerousness and
guilt still exists today
for black boys who are born in America.
They're still dealing with
that same presumption.
I'm 57, I'm still dealing
with that same presumption,
I was in a court not too long ago,
gettin' ready to do a hearing.
Had my suit and tie on, sitting
at defense counsel's table,
and the judge walked in
and saw me sitting there,
and he said, "Hey hey hey hey hey,
"you get back out there in the hallway,
"you wait until your lawyer gets here.
"I don't want any defendant
sittin' in my courtroom
"without their lawyer."
And I stood up and I said to the judge,
"I'm sorry Your Honor,
I'm, I am the lawyer."
And the judge started laughing,
the prosecutor started
laughing, I made myself laugh,
'cause I didn't wanna
disadvantage my client.
Then my client came
in, we did the hearing,
client was a young white
kid I was representing.
(audience laughs)
But after the hearing I
was thinking, what is it,
when this judge saw a
middle-aged black man sitting
in a suit and tie at
defense counsel's table,
it didn't even occur
to him was the lawyer,
that that's the lawyer, and
what that is is this narrative
of racial difference,
it's the presumption,
and the reason why I think
things are salient for me
is that you get tired,
constantly having to
navigate these presumptions.
I'm starting to get weary
of having to bob and weave
around all of these assumptions,
and it breaks my heart
when I'm seeing young
law students starting
in this law school having to
negotiate these presumptions,
and my young clients
having to, it's exhausting,
and it does build this
kind of anxiety and angst.
And that's what I think
we see on display now,
and it will continue to be there
until we do something responsive,
something restorative,
something truthful, that
gets us to a better place.
- And I think we have
to tackle race head-on.
I think that it needs to be salient,
I think that we need to
deal with it explicitly.
Because when we don't, it goes
underground, and it mutates.
And if we don't address it
upfront, then we have instances
where we've got this
white supremacist ideology
that is allowed to persist
and pervade our society,
and we don't confront it.
One of the things that
white supremacy is based on
is what Bryan was talking
about a moment ago,
this notion that you
are above other people,
and part of the way that you do that
is you dehumanize everyone else, right?
If you think about dehumanization
from warfare for example.
One of the reasons that
you can allow people
to kill the enemy is that
you dehumanize that enemy,
you call that enemy vermin,
and, when you do that,
Nazi Germany is capable
of exterminating people.
You call people,
you talk about people
infesting communities,
and you can wipe them out and
go through ethnic cleansing.
What we see in this country
is dehumanization that happens
on a regular basis, and we don't even,
even notice it anymore, and
that's what's troubling.
Bryan was talking about the fact that,
when President Obama was
in office for eight years
and we had, y'know, our
first black president,
first, first lady who
was a woman of color.
She was called an ape in heels, right?
He was treated with levels of disrespect
that no other president has had to endure.
Because we were allowed to,
as a society, to dehumanize,
to say that they were some sort of other.
And that dehumanization
continues to this day.
If you go back to Ferguson when
you had the demonstrations,
black demonstrators,
demonstrating against the killing
of Michael Brown, there was
an explosion on Twitter,
where people were reacting to
black protesters in Ferguson,
and they were using the
hashtag, chimping out.
And for those of you who don't know this,
I had to look it up.
The Urban Dictionary says, chimping out
is when black people let
down the facade of civility
and let out their inner primate.
This is what we're seeing in social media.
That people are dehumanizing,
and when you start to dehumanize,
you feel like you can act violently,
you can act with disrespect,
you can behave in racialized ways,
and if we don't call it
out, it continues to happen.
One of the things that happened
that Friday night in Charlottesville,
when those men were walking with torches,
and chanting the things that they were,
when they walked by black
protest, counter-protesters,
they made monkey sounds.
Again, living this dehumanization, our,
reigniting this dehumanization.
We've got to confront this,
because if we don't confront
this, what ends up happening
is that we pretend that
race isn't in play,
we pretend that race isn't a default line,
and we continue to see the
kinds of violent activities
that we're seeing.
We have to confront it
openly, it has to be salient,
we have to be explicit.
- I'm gonna disagree that this is new,
that somehow Charlottesville
and the last couple of years.
What's new of course is
that you have a president
that reacts inappropriately,
worse, fans the flames,
pours gasoline on them.
But the underlying story of race,
and the subordination of
people of color in the country,
it's not new.
I grew up, I'm, I'll tell you that my age
has got a bunch of sevens in it also,
(audience laughs)
but I won't tell you in
what order they come.
But, I grew up in a
segregated America, and the,
then, in those years, it was quite common
to hear extraordinarily
offensive racial epithets.
You go, I didn't, I never dressed
in an athletic locker room
that wasn't full of that,
all the time as I grew up.
Every single day, I heard it.
I remember, Ku Klux Klan,
marching in the streets,
and intimidating people, in,
with extraordinary force.
So the idea that somehow
this is an upsurge
of something that has,
that, electing a black
president caused, and so,
somehow it's a reaction to the election
of a black president,
simply is ahistorical.
The truth is, the, under the surface
of the veneer of American society,
has bubbled kind of a
series of stereotypes,
stereotypes about the treatment of women,
stereotypes about the treatment of Jews,
stereotypes about Asians,
stereotypes about blacks.
We have been a nation of stereotypes,
and we've, I think, striven as lawyers
to deal formally with eliminating them,
and we've made tremendous strides
in the formal elimination.
What Charlottesville teaches me
is that you can eliminate
the formal stereotypes,
but that underlying pathology that exists
in the minds and hearts of
people has to be dealt with
by some form of direct confrontation.
And I don't mean violence,
and I don't mean imprisoning them,
and I don't mean shutting them up.
But I do mean confronting them,
and confronting the racism,
and the sexism, and the anti-Semitism,
that continues to bubble
under the surface.
So Charlottesville is a warning sign,
but it's not something new.
- So there's a lot that you've said there
that we should come back to, each of you.
But, to pick up with this
question of shutting them up
or not, Burt, I mean one aspect,
that--
- I knew I was gonna,
I should of shut up.
(audience laughs)
- No, no.
One, one aspect of Charlottesville,
one dimension of it
is to think of it as a
problem about the boundaries
between free speech,
and violence,
about,
what it means to have
right, on the one hand,
under the First Amendment,
to be free from being
silenced by the state
for what you're saying
and what you believe,
and at the same time, to have a right
to security of the person,
that is an obligation if not
constitutionally enshrined,
at least, expected of our
government for its people.
So we could come at this a
number of different ways,
one way is to ask the
institutional question,
you've spent a lot of time
working with the ACLU,
which made the decision
to represent some of the,
those protesting with, and
some of those who were,
who are among the neo-Nazis and Klansmen,
in litigation arising out of
the events in Charlottesville.
Is that a straightforward, y'know we,
one can hate their speech
but recognize their right to speak?
How do you think about these boundaries?
- Well, as I, as I have often
said, I know the questions,
it's the answers I have trouble with.
The, lemme start by saying,
and I don't mean this as just rhetoric,
there's no such thing as free speech.
Speech is not free.
First of all, you need
resources to engage in it
in an effective way, so at
that end of the equation,
free speech is a misnomer, but the,
also the idea that speech is free
because it doesn't have
any adverse consequences
is also wrong.
Speech does have adverse consequences.
Although, speech matters,
otherwise we wouldn't
care about it so much.
Speech can actually change behavior,
and cause people to
behave in certain ways.
So there's no question
that when somebody like me,
in the ACLU and, my friends in the ACLU,
when we defend this type of speech,
we are defending speech
that can hurt people,
and we know it.
None of us hide from that,
it's harmful, it's hurtful.
I've been, I've been the target
of enough anti-Semitic slurs
to know that it's hurtful, and harmful.
But, consider what, and here's,
maybe this is a cop-out,
but I don't think, I don't think so,
consider the consequences.
You would have to have a rule that said,
if speech, one, makes
people feel really bad,
you can stop it.
I don't think there's
a person in this room
that would go for that.
And it would be a dreadful rule,
that said that hurt feelings are a basis
to essentially license the state
to control what people say.
So if we take hurt feelings off,
then we have to ask ourselves,
all right, the question is,
what is the speech gonna unleash?
Now we in the country have
lived through two long cycles.
We lived through a very long
cycle where the rule was,
if the speech has a bad
tendency to unleash something,
which means that if it,
sort of has it, could do it,
we don't know that it
will, but it could do it,
the government can shut you up.
And what that gave us is the
imprisonment of Eugene Debs
for opposing the First World
War, it gave us the Red Scare,
it gave us the imprisonment
of American labor leaders
for urging people to be able to strike,
it gave us McCarthyism, it
gave us the worst excesses
of tyranny that the country has known,
have been carried out under
the bad tendency test.
We moved away from the bad tendency test,
to a test that says,
it's not enough that
there's a bad tendency.
You have to prove that it's
gonna virtually certain,
create something really bad
before the government
can step in and stop it.
Now, to me, that means
that it would be okay
for a park to say, I'm
not giving you a permit
because the risk of violence is so great,
based upon all of the
facts and circumstances,
that if we allow this to go on,
there is a very strong likelihood
that there will be violence
and people will be hurt.
I'm prepared, even as an ACLU lawyer,
and I'm not sure that all of
my friends would agree with me,
but I'm prepared to provide
some degree of good faith effort
to stop violence, but,
I am not prepared to let
people in the park say,
oh no, this is gonna cause violence,
because I heard it too many times
when I was working in the South,
representing civil march,
civil rights marchers.
Every time we planned a march,
some sheriff somewhere said,
there's gonna be violence.
And if it weren't for federal judges
enforcing the Constitution,
and guaranteeing people's right to speak,
you wouldn't have had a
civil rights movement,
it would've been crushed.
And so don't be ahistorical,
don't think that this is the moment
where you can snuff out
speech you don't like,
but later go back and put speech you like
back on a pedestal.
That's the cost of free speech,
that you have to endure
things you don't like.
And then the quid pro quo
is uniting with the victim
to fight that speech,
but to fight it not with the government,
but to fight it by common work
that deals with the inequality.
- Lemme, lemme respond
in two ways to that.
One, I think that no one would believe
that people who were armed
with weapons and tiki torches,
intending to do harm when
they marched on that park,
were due constitutional protections,
but that's a separate issue.
When we talked earlier about
us not dealing with race
as a nation, we didn't
mean only the neo-Nazis
and Klansmen haven't dealt
with race, we meant everyone.
And I think that the exercise for the ACLU
to look at this time in history and say,
we should reevaluate, not only who we are,
but how we approach these
problems given the racial history
of this country, is a healthy exercise.
And so I think that,
as difficult as it is,
I think looking at the chapters
and looking at the national structure,
and looking at the demographics
of the organization,
are helpful exercises for
the ACLU, and I think this,
Charlottesville has helped
to engage in that exercise.
- I do think there is a, I mean I,
for me it's about power, who has it.
Where are rights really
being threatened and menaced?
I mean what's interesting is that,
I mean I obviously support
a group's right to protest,
to march, to say things.
In 90% of Virginia, the Klan and the Nazis
could've gotten a permit
to protest in a park,
and nobody would've objected to that.
They happened to be at
a university community,
where there's a different
consciousness about that.
I mean we have this, I live in Montgomery,
I mean this happens all the
time, I can't drive 20 miles
without crossing somebody's
protest with people
with machine guns and Confederate flags,
and all of this iconography,
so I think there's a,
there's a more complicated
question for me,
which is where are there threats?
I'm very worried about
all these young people
who get arrested when
they pull out their phones
and start recording police officer,
interacting with minority suspects.
I'm worried about the way
in which this implicit bias
is being expressed in ways to
kind of keep people silent,
and so there has to be this analysis
of how we're going to use these voices,
and that's why I think it's,
for me it's not about a
constitutional question
about rights, it's about,
where are we worried
that rights are going to be violated
and people're gonna be silenced,
and oppression is going to be
unaddressed, and that's why,
in a lot of ways, and
I've said this before,
I'm not really worried about
the people wearing white robes,
prancing around with torches,
calling themselves the Ku Klux Klan,
I'm worried about the
people wearing black robes,
getting on benches, sentencing people
in racially discriminatory manners,
doing all of these things
with implicit bias,
condemning people, and not
ever being confronted by it.
That's a much bigger threat for me.
And in that respect, when
I have power and resources,
I wanna deploy it to protect the rights
of all of these people
who're being silenced
by their very presence in the courtroom
where nobody's asking these questions
about whose rights are at risk.
- I suppose what goes
along with recognizing,
I take it we all do, that
rights of groups to gather
and to say things, chant things,
to announce beliefs and views
that we would all regard as repugnant,
is an obligation of the
state to protect the people.
And so that raises a question
about the role of the police,
and Kim, I think it might've been you
who referenced Ferguson earlier,
one rather sharp contrast one can draw
between events in Ferguson
and events in Charlottesville,
is the question whether the
police were even visible,
let alone what they were doing.
Do you, how do you think about that?
- Well, I think that if
we imagine for a moment,
250 black people armed and with torches,
walking through the streets of Virginia,
(scattered laughing)
I don't think that we
would've seen the police
just step back and say, well
we'll let what happens happen.
And we saw evidence of
what police do in Ferguson,
where they came out with tanks,
they had sub-machine guns,
they had, they were
militarized, and almost behaved
as though they were
occupying the community
where these protests were happening.
We see a different form of policing
when it's black folks protesting,
and when it's white folks protesting,
and I think that it raises questions
about how it is that we deploy police,
what it is that they believe
that they're supposed to be
doing, who it is they believe
that they're supposed to be protecting,
and so I think that if we
look at the differences,
they're stark.
And I think that they tell
us something about who we are
and how we behave,
particularly when we're using state power.
And frankly, if you look at,
Bryan and all of us were talking earlier
about how the president has
rescinded the executive order
that President Obama put in place,
which was designed to
keep military equipment
out of the hands of police officers,
and what this president is doing
is sending it into the
hands of police officers
so that they have rocket
launchers and things like that.
That's the kind of policing that we feel
is somehow appropriate for people of color
and communities of color, and, and in non,
or in white communities or
when they're white protesters,
we're willing to restrain ourselves.
I think it's, it's telling.
- The police in Boston and San
Francisco reacted quite well.
Major demonstrations in
both places in the weeks
after the tragedy,
strong presence of white supremacists
in both places, shouted
down by massive numbers
of counter-protesters.
And the police kept 'em
apart, there was no,
there was a couple of punches thrown,
but not a significant amount of violence,
and if you want a,
primer on how to behave,
it seems, that's it.
The narrow, and the broader
questions that've been raised
on the panel, transcend Charlottesville.
But if you want a narrow question,
on how you deal with
the particular problem
of Charlottesville, what do you,
how to deal with white
racists and anti-Semites,
publicly parading their
pathology on the streets,
you do it by surrounding 'em with cops,
and by encouraging the
community to come out,
and let them know how
absolutely unacceptable
this type of behavior is.
Y'know, I'll just raise
the ACLU flag one more time
and then I'll hide behind
the chair, and that is,
you don't do it by silencing them.
You don't do it by telling
them that they can't speak,
because if you do,
you are driving the pathology underground.
It will continue to ferment,
they will turn themselves
into martyrs, and you,
and we won't be able to
deal with the basic issues
that the panel is raising,
and that is how we confront
the fact that racism is,
I don't know, Derrick Bell
used to tell me racism
is baked into us.
It's hardwired, we're
never gonna get rid of it,
and we just better
learn how to control it.
But whatever it is,
Charlottesville tells me
that we haven't done
enough to deal with that,
but not that we should
try to use censorship
as a way of dealing with this.
- There's a, another angle
we could come at Charlottesville from.
Ostensibly, and I underlined that word,
the event started as a protest
about the removal of a statue.
Now anyone who believes
that Charlottesville
in the larger sense is
principally about the presence
or absence of a statue
might wanna give some additional thought
to that proposition.
(audience laughs)
But, there are I suppose questions here,
and Bryan, thinking about
your work around public memory
in particular, how should
we think about this,
that this country, like
many countries but,
we can just think about this country,
and not only in the South,
is decorated with memorials
to people who played leading roles in the,
preservation and propagation
of one of the greatest evils
in human history, the
institution of slavery.
What should we do about that?
Is the best thing to remove them?
Is the, does that run a risk
of causing even further public memory loss
with regard to that history?
How should we think about it?
- I, yeah I,
yeah I, I really do not think
that the way we have to remind
ourself about the Civil War
and the era of slavery is to
put up statues to Robert E. Lee
and Stonewall Jackson and Jefferson Davis.
Today is September 11,
it's an important day in
the life of this country
and the life of this city.
We have a 9/11 memorial
less than 15 years after that tragedy.
No one thinks that the
appropriate way to remember
is to have a statue of Osama
bin Laden down at Wall Street.
We would think that's crazy.
And if any country now tried to honor him
with something like that, we
would be so provoked by it,
we'd be talking sanctions and war.
And so I think we actually
have to reevaluate
what these statues represent.
They don't represent an
effort to just honor people,
they represent an effort
to assert a narrative.
Remember, the South could've
been, those men were, could,
they were properly identified as treasons,
insurgents who could've and
should've been hanged, right?
That was the argument,
and that didn't happen.
And then when Reconstruction collapses,
you have this takeover,
a violent takeover,
of the American South,
black people are now
gonna be disenfranchised,
they're gonna be forced back
into racial subordination,
and the way we're going to
make that takeover visible
and celebrated is we're going
to erect these new memorials
and monuments and statues,
and they were being erected
at the same time we were
passing states constitutions,
like the one we have in Alabama
that still today prohibits
black and white kids
from going to school together,
a provision we can't get
out of the statute because,
you have to have a state-wide referendum,
and we haven't been able
to get a majority of people
in the state of Alabama
to vote to take out the
language that prohibits black
and white kids from
going to school together.
So when these things are
erected to do something
that is expressive about white supremacy
and racial hierarchy, I don't
think they can be justified
by arguing that if we take them down,
we'll forget our history,
and in that respect,
I think they are very, very dangerous,
I think they are very, very oppressive.
I live in a region where
the iconography of hate
and bigotry is everywhere.
And in my state where
Confederate Memorial Day
is a state holiday, where
Jefferson Davis's birthday
is a state holiday,
where we don't have
Martin Luther King Day,
we have Martin Luther
King/Robert E. Lee Day,
there is something burdensome
and oppressive about that reality.
Our two largest high schools
are Robert E. Lee High,
Jefferson Davis High,
they're both 99% black,
and so I think we have to change.
I think this country has to change,
and we need our culture
to express that change.
It's the reason why
we're trying to build
this national memorial
to victims of lynching.
It's the reason why I wanna put a marker
at every lynching site in America,
to change our public
memory in a different way.
What I like about what's
happened in Germany
is that if you go to Berlin,
you can't go 100 meters
without seeing stones
placed next to the homes
of Jewish families that were abducted.
In Germany every schoolchild has to go
to the Holocaust memorial.
There is this effort to
reclaim, to change the identity.
They don't wanna be thought of Nazis,
and the people who killed the Jews,
they wanna change that identity.
But in this country, we
don't talk about slavery,
we don't talk about lynching,
we don't talk about segregation,
and we actually like being
identified as the Confederates,
and so that has to change,
and now we have people
in North defending these
Confederate statues, so I think,
not only are they not neutral,
not just about memory,
I actually think they're toxic,
they are contributing to the
mindset that keeps us silent
about the things we should
be talking about and,
and one of the interesting things
that we've been working
on, and we have a list
in my office of white,
Southern abolitionists,
in the 1850s who were
trying to end slavery,
Southerners, white Southerners.
We have a list of people who
were white, Southern activists,
in the 1920s, trying to stop lynching.
We have white Southern
politicians in the 1940s
who were speaking out against
segregation and Jim Crow.
And if I brought that list
and put their names on the screen,
nobody would've ever heard
of any of these people.
And the reason, and the reason for that
is we haven't actually honored them,
and I think we should
be naming some schools
and streets after those people.
Name it after these white
Southerners who opposed slavery,
and then we could all celebrate that.
Then you'd have something
that actually reflects public
memory in a healthy way,
that moves us forward.
What these things do I
think is hold us back.
And so I think it's important
that we actually address this issue,
in a much more honest
way than we have to date.
- When I was in college,
a lot of Southerners,
students from the South had
Confederate flags in their room,
in their dorm rooms.
And their notion was this narrative, that,
y'know this was this
noble cause by the South
that was just lost, and
in contemporary times,
it's confined to this notion
of an economic struggle,
this was really an economic struggle,
this was an attempt to destroy
the United States of America,
and to prolong slavery.
And, we need to, when Bryan
talks about the narrative,
and we talked about that at
the launch at the center,
and we've talked about it since.
The narrative war, what the
story is told, that is told.
I've seen, in the South,
some courageous leaders.
Nikki Haley when she was governor
of South Carolina was willing
to have the Confederate flag
taken off government property.
And I think part of this discussion
is how we shape that narrative.
Y'know, what these statues mean,
and what it means to fly
the Confederate flag.
And I think we haven't
really embraced the reality
of that narrative, so I
think we need to be careful
about people who say they're offended
because it talks about this noble cause.
- I think the points on
public iconography, to me,
those public statues,
that essentially reinforce
and codify a false narrative of a past,
especially the past in the South,
but you could do it in the North too,
is more dangerous than the
white supremacists marching.
Because the white supremacist marching
is not gonna capture
the national narrative.
And what we need to do is
use their march as a trigger
for the national narrative to reject them.
But the statues that're up
there speaking all the time,
y'know, it strikes me every
time I think about that,
but the Catholic church dominated Europe,
because they, partly
because they recognized
that building those churches,
those magnificent churches,
that dominated the skyline
and dominated what
people saw all the time,
was one of the most important
ways to send a message
that would move a population
in a particular way.
And so that the public
narrative of public monuments,
and interestingly enough,
the Supreme Court blundered
in, into it by saying
that there's something called
the government speech doctrine.
When the government decides
to put up a monument
on property, it's the
government speaking to you,
and telling you some sort
of narrative about it.
So for me there are two
possible ways to go.
One way is the, a tactical
way, is the way I would go,
and try to use the, the existing statues
to the fullest extent as teaching moments.
It seems to me that three times
a year, five times a year,
schoolchildren should be bused
to the Robert E. Lee statue,
and they should discuss
what it is about this nation
that would have us
glorify Lee, when in fact,
visit this terrible narrative
that glorifying Lee seems to cover up.
Whether people would
do that, I don't know.
The alternative is to take them down.
Now that's going to be a
tremendously divisive event.
It seems to me, it's appropriate
to take them down, and sub,
or else, if you don't wanna take it down,
at least put one of the
white heroes in the South.
Or, y'know, heaven forbid,
one of the black heroes
in the South, put them next
to these other statutes,
but I do think we
shouldn't be just tricked,
I fell into it myself when
I first heard about it,
I said nah, nah, nah, we're overreacting.
The statutes don't really
do much, leave 'em alone.
I'm tired of government by symbolism.
Let's do something that really
matters in people's lives.
I've been persuaded that's wrong.
I've been persuaded that
the message that these,
that these monuments send,
reinforcing racism, is a,
that until we begin to deal
with our public iconography,
and we know this in the
establishment clause,
we spend vast amounts of time worrying
about what the public square looks like,
with crosses and various
religious symbols,
but not one iota of time
worried about the racism
that gets projected in the
pubic square every day.
- Yeah.
- And we're teaching
our children what to revere,
what to look up to by having this statute,
statue, I will say statute.
It's the lawyer in me.
(scattered laughing)
Statue--
- No, it's the New Yorker
in you. (laughs)
- It is, it is, it is.
Having these statues in
our, in our town squares,
our town centers, we are
signaling a value system,
and teaching our children
that this is something
that they should pay attention to,
so I think they come down.
I think that that doesn't
change our history.
We can still talk about these things,
we can still put those
little statues in museums,
but they don't need to
be in our town centers,
we don't need to have
it at our state capital,
because that's sending a message
that I think is a divisive message,
and a message of subordination.
- And can I just add
one more thing on this,
'cause I was where, I was where Burt was
and I appreciate his intervention on this,
because I initially thought,
well we can do something else,
but I'm now with Kim on this.
I don't think we can just
erect something else.
Because what that tends to do
is it makes slavery a debate.
It makes lynching debatable,
and one of the great challenges
that we have in this country
is people are still debating that.
Michelle Obama got up at the
Democratic National Convention,
said I work in a house built by slaves,
people went after her
and started talking about
how great things were for
black people during slavery.
And as long as we're debating
the inhumanity of slavery,
we're debating the inhumanity of lynching,
we're not gonna make the
progress we're gonna make.
The other thing I wanna
say before we leave
'cause we're in New York City,
and some people are
sittin' out there thinkin',
yeah I'm glad I don't live in Alabama,
(laughing)
but, Alabama and New York City
have a common statue, right?
We have on our state
legislature at Alabama,
an Alabamian who is heralded
as the father of gynecology.
He also has a statue right here
in New York City, James Sims.
And he's heralded as the
father of gynecology,
and he was doctor in Alabama
who during the period of
enslavery, of enslavement,
went to plantations
and basically butchered
enslaved black women,
he cut on them when they
were having problems
during pregnancy.
He did not believe that
black people felt pain,
so he refused to use anesthesia.
The screaming and the hollering
and the tears wasn't enough
to persuade him that
they were feeling pain.
And they did these brutal,
incredibly violent assaults
on black women, for decades,
until he learned some things
about how to treat a vaginal trauma
and some of these issues,
and then he applied that to white women
where he used anesthesia,
and he's now heralded as
the father of gynecology,
and there was statue of
him in New York City,
where we have not really confronted that,
and I think the same issues
that we're talking about,
as Burt said, in the American South,
exist all over this country.
There is a continuum,
but I do think that these
things are important places
for us to do this really hard education
that we haven't done to date.
- We're running a little short on time,
time for maybe another round, and,
maybe we can pivot now to,
what to do.
What can lawyers do?
Wow, some people are
running very short on time.
(audience laughs)
What can law students do?
What can the law do?
- Well, I tell you, what can you do?
That,
for me, the personal obligation,
and I bear this as a personal obligation
because I do believe in
free speech so deeply,
and I do believe that
one fights censorship
whenever one can, but for any lawyer
who really believes that,
there's a reciprocal.
And the reciprocal is you
can't be a free rider.
You say that free speech
is good for the society,
and you don't trust the government
to censor, and therefore,
you're gonna protect some
of the most god-awful stuff
you've ever heard, and
it's gonna come out and,
some people will be harmed by it.
But you think the society
is in some sense better off,
and you remember that society,
so you fight for that free speech.
If you do that, there's a quid pro quo.
The quid pro quo is you
cannot enjoy freedom
without helping to pay its price.
And part of the price of free speech
is to rally to the victims
who feel oppressed by
the particular speech.
For me, I've said this more often
than anybody wants to hear.
The way I deal with problems
of free speech on campus
is I try to organize the
students into saying,
when you hear somebody
delivering hateful speech
to one of your colleagues, you
rally around that colleague.
You let that colleague know
that that speech is unacceptable,
maybe you're not gonna
punish the person that spoke,
but you're not gonna walk away.
And so to those of you in the audience,
to those three or four
of you in the audience
who agree with my free speech position,
(audience laughs)
don't walk away.
You're not allowed to.
You have a special duty to
work on behalf of the victims.
- Lemme, lemme take those in order, right,
so with regard to the law,
I think that white supremacy
is allowed to exist
and to flourish because we still
have throwbacks in the law,
so beginning to construct arguments
that will destroy the precedence
around Washington v. Davis
for example.
Because now in order to
prove discrimination,
you essentially have to have
someone who uses a racial slur
in their record,
so beginning to think
about legal constructs
that take on that notion,
is I think things that the law can do
and that we can do as concerned lawyers.
For my law students in
the room, it's simple.
My colleague Vincent Southerland,
who is very thoughtful and
works with me every day,
always says, we know people
who say things that are racist
or inappropriate, and not
allowing those to go unchecked,
whether it's somebody in your family,
whether it's somebody you know,
but having that conversation
begins to deal with racism directly,
and I applaud him for that
because I think that's
a thoughtful approach.
But for my kids in the room, I think that,
particularly for my
first-year law students
who are trying to get their
sea legs in law school,
the notion that you came, and
in your personal statements,
you talked about social
justice and racial justice,
understanding at core
that that is not only a principled reason
for you to be in this institution,
but that you not leave
that, and that you recognize
to be in the fight for racial justice
and social justice in this country means
that you have to have skin in the game.
It doesn't mean that you
only protest when it's nice.
Bryan and I were talkin'
about this earlier, we,
Bryan and I known each
other for a very long time.
But it means that you, you have to realize
that by putting yourself out there,
there's sometimes a cost
associated with that,
but that's what people struggled for
in the civil rights movement,
that's what people
continue to struggle for,
so keep that in your equation and your,
your decision-making process as you go out
and you fight injustice.
- I agree with both of the positions
that Burt and Tony took.
I, I guess the one thing
I would add is that,
I worry that when we see
something like Charlottesville,
that we think that it's
an isolated incident,
and that we begin to react to that.
And I think, as Bryan mentioned earlier,
Charlottesville is symptomatic
of some deeper problems.
And so what I think lawyers
and law students can do
is recognize how those
deeper problems manifest
in this country, and to begin to find ways
to fight the fight on behalf of people
who don't have a voice,
who don't get to sit
up front on the stage,
who actually don't have the
money to express themselves,
who are actually being harmed
by the policies and practices
that are reflective of this
notion of white supremacy,
and are intent on keeping
marginalized people down.
So if we look at some of the things
that the Trump administration is doing,
not only his toxic rhetoric
and not only his cabinet picks,
but look at some of his policies.
We need to fight those,
we need to stand up
and find ways to fight all of his efforts
to get rid of DACA, we need to find ways
to begin to enable our communities
to feel safe in their communities
and not to feel like they
are at war with their police.
We need to find ways as lawyers
to challenge the kinds of policies
that that administration
is putting forward
and trying to suggest are normal policies,
because they're not normal policies.
So I love the fact that we have, y'know,
attorneys general in states
actually using the law to say,
this is a Muslim ban
and we need to stop it.
That's what lawyers can do,
we can actually fight things in court
and begin to make a change there.
But we also have to not be
satisfied with a win in court
or a battle in court.
We actually do have to
contribute to the narrative.
So we need to be out there,
writing op-ed pieces, putting,
engaging the public debate,
actually talking to people
about why race is important
to at least acknowledge, and
that we need to acknowledge
that legacy of racism in this country
before we will begin to move on.
Because until we do that,
and until we recognize that
that's our role as lawyers,
as citizens, this won't change.
- It, no it's just, it's hard
to add anything more to that,
but I do think that, it is
important for all of us,
if you find yourself, on issues of race,
only ever reacting to
things that come along,
then my argument is that
you're not doing enough.
We don't need more people just reacting
when something happens here and there,
we need people who are prepared to commit
to doing something proactive.
And, what's great about NYU
is this law school actually
provides lots of opportunities
to engage in proactive struggle,
to confront racial inequality
and racial justice,
and I think you have to get involved.
You cannot, in my
judgment, prepare yourself
to create a different
conversation 50 years from now,
if you stay in your classrooms,
if you talk only to yourselves,
if you allow yourself,
because you're in law school,
to be disengaged from
this larger struggle.
We need you to be involved
in the broader struggle,
active in the broader struggle.
And you need to stay
connected to communities
that are suffering from racial inequality.
You have to get underneath
the policy discussions.
What happens in law school, a
lot of times we get so focused
on policy and precedent
that we don't talk about the narratives
behind the policy and precedent.
If you're talking about Korematsu,
you can't just look at
the holding of that case,
you actually have to ask yourself,
how did my country get comfortable
with rounding up people
who are Japanese-American
and putting them in concentration camps,
and nobody said anything?
How did we get comfortable with that?
We got comfortable with that
because of this narrative
of fear and anger.
And right now we're living
at a time when the narrative,
the politics of fear and anger are raging.
We've got politicians that want us afraid,
and they want us angry,
and if we allow ourselves
to be governed by fear and
anger, we will tolerate abuse,
inequality, injustice,
we'll, we'll accept
people being rounded up
because of their religion or
their faith or their ethnicity,
and we have to change that narrative,
and I also think we actually
have to stay committed
to being hopeful.
'Cause that's the other thing
that I think is the biggest threat
to doing racial justice
work, you lose your hope.
You think, oh I can't
do anything about that.
Law school is notorious for
taking away your hope quotient,
it really is.
(audience laughs)
Because these people up here,
some of these folks right up
here, complicate the world,
they make these things
really, and they should,
that's their job, to complicate things
'cause you need to be smart and tactical,
but sometimes what happens
is that you begin to think,
well I can't do anything about that.
We can't solve these problems.
And you actually have to
fight against the hopelessness
that will make you think
that there's nothing more
we can do, that is the
biggest problem we have,
and in fact, my view is that hopelessness
is the enemy of justice.
And you're either hopeful,
or you're the problem.
So when I meet hopeless law students,
I hate to tell you this,
but you're kinda problems.
(audience laughs)
And so you've gotta hold onto your hope,
and then the last thing you have to do
is that you have to be willing
to do uncomfortable things.
As Tony said, there's no way
you can make a difference
on these kinds of issues,
issues that've been festering
for centuries, if you think
the only thing you can do
is something that's
convenient or comfortable.
You have to do inconvenient
things and uncomfortable things.
Some of you are gonna have to
be the person who stands up
when everybody else is saying sit down.
Some of you are gonna have
to be the person who speaks
when everybody else is saying be quiet.
But when you do that, with some
commitment to these changes
and these issues, that's
when things change,
and that's what I think we can do,
and law shouldn't
silence this in the quest
to do that justice.
And that's what excites
me about being here.
But it also worries me sometimes,
and that's why I think it's
great that people come out
to conversations like this.
We've got a challenge in front of us,
and we've gotta meet that challenge.
- The, the long-distance aspect of it
is what I wanna stress.
When I first started,
I mean I became a civil rights lawyer in,
or Civil Liberties lawyer, in 1967,
and I thought it would take about 10 years
to fix everything.
(audience laughs)
10 good, hard years, and
staying up late at night,
working on this stuff.
One of the things we
all have to acknowledge
is that the process of moving
toward a better humanity
for us all is a never-ending process.
You never, in my lifetime,
in the lifetimes of these wonderful people
on the panel with me, we're
never gonna do much more
than make a dent.
But making the dent, over
time and over generations,
changes things.
It is a different country
than the country I grew up in,
a better country.
It, we're on the, we're on the cusp
of tilting backwards a little bit
and that makes me very nervous,
but the progress is a real progress.
Look at this stage, I mean I've been on,
I've been in the civil rights,
civil liberties movement most of my life.
I've never, never before sat on a stage
with three black peers.
When I started, it wouldn't have happened,
they weren't there.
They're now here, and
the world is changing.
It, and so, you can help it change.
And I'll just end in what
may be on a discordant note.
And that's that, there
are things that unite us
as well as things that divide us.
We're different in race,
we're different in religion,
we're different in
ideology, we're different,
but the things that unite
us, the economic issues
that unite us, that make it possible
for powerful people in the
society to play the weak off
against each other, by
hoping that they will compete
for who the worst victim is,
and who the champion victim is,
and how much time should be spent on that.
Every single time we fall for that,
we add another 50 years to the problem.
One of the things we must remember
is that what binds most
minorities together
is economic oppression.
And the economic
oppression will not go away
unless we think about
policies that unite us
in a common good, rather
than just getting into silos,
and trying to advance our own silos.
- Thank you to this panel.
(audience laughs)
(audience applauds)
This is the beginning
of the school year, and,
and I hope you'll think
that this is just the
beginning of a conversation.
Of course these issues didn't
begin with Charlottesville
as everyone has recognized,
and they won't end any time soon,
but I hope that our community
continue to take them up
in all of the ways that've
been described tonight,
so again, thank you all for being here,
and thanks to our panelists.
(audience applauds)
