Ryan: Well, good afternoon everyone. Welcome to The Washington Post. I’m Fred Ryan, publisher. I’d like to thank all of you who are joining us here in our Washington Post Live Center as well as those that are watching on our various digital platforms. We rely on the First Amendment to guarantee freedoms of expression that are the foundation of our democracy, and a model for democracies across the world.
And today’s program comes at a particularly important time in our nation’s history. Rapidly evolving social norms, heightened political tensions, increased cultural sensitivities are amplified by unprecedented advances in digital technology and the emergence of new platforms. These forces may challenge and perhaps define a new era for the boundaries of the protections of religion, speech, assembly and petition that have long been afforded us by our Constitution. Today’s program also comes at a particularly neat time for The Washington Post. We’ve added a new statement to our pages, Democracy Dies in Darkness. Maybe you’ve seen it. I hope you have.
Well, in this spirit, we hope to shine a light on the institutions of our democracy through investigative and accountability reporting and by convening thought-provoking conversations like todays to explore issues that are driving the national conversation. Our executive editor, Marty Baron, will be taking the stage in just a moment, and under Marty’s leadership, our editors and reporters share a mission stated by Eugene Meyer, the publisher of The Washington Post in 1933, who said our goal is to, “Tell the truth as nearly as the truth may be ascertained.” Well, this requires uncovering facts that others would like to keep hidden, and never shying away from holding the powerful accountable. This relentless pursuit of the truth by The Washington Post and other news organizations has led to conversations on press freedoms in our country, and I believe a new appreciation of the essential role of a free press in our democracy.
Well, I’d like to thank the Knight Foundation for sponsoring today’s program, and for their ongoing support of journalism, the arts, and other forms of expression that will be discussed and debated on our stage today. We’re excited to be joined by such an interesting group of thought leaders, scholars and advocates this afternoon for conversations that promise to provoke, inform and inspire. And speaking of someone who provokes and informs and inspires us almost every day, it’s now my pleasure to introduce the executive editor of The Washington Post, Marty Baron. [APPLAUSE]
Baron: Thank you, Fred, and thank you to everyone for coming. I think the subject for today is of universal and urgent interest. That interest cuts across the political spectrum and across age groups and religion, and across all segments of our society. And today’s subject is fundamental to who we are as Americans. In my view, when we ask what makes the United States truly exceptional, the answer lies in the First Amendment and the rights it gives us to freedom of expression, including a free and independent press, the right to petition government about our grievances, the right to freely assemble to express our views, and the right to express our religious beliefs.
But what are the boundaries of free speech and a free press and free expression overall? And how secure are those rights in today’s political and social environment? We have a president who has benefitted immensely from free expression and has capitalized on new ways to share his views with millions of people via social media. And yet we have major elements of the press that see this very president as someone who might use his powers to put their freedom in peril based on menacing language, outright threats, and reports that he might want to see some journalists jailed.
On college campuses, there is vigorous debate about what constitutes the greatest danger; speech that is seen as hostile or demeaning or threatening to others, or the calls to shut down speech that is unpopular or provocative, or that some deem to be beyond the limits of civil and responsible discourse. Religious groups see threats to another form of expression; their own ability to live lives according to their own deeply held beliefs. Yet others see something else in the arguments by those same religious groups; an excuse to practice discrimination and to defy laws that are meant to apply to everyone without exception.
The First Amendment gives us all the right to freely debate, and so today I’m sure we will. The Washington Post is proud to host with the sponsorship of the Knight Foundation a forum on what it truly means to be a country founded on the idea of free expression. Thank you. [APPLAUSE]
Digital Democracy: Media, Politics and Speech in the Digital Era:
Sullivan: Good afternoon. I’m Margaret Sullivan, the media columnist for The Washington Post. I’m happy to be hosting the first segment of our program. The subject is Media, Politics and Speech in the Digital Era. Joining me on stage to kick off our discussion, Floyd Abrams, senior counsel at Cahill Gordon. Mr. Abrams is an expert in First Amendment and media litigation. His new book titled The Soul of the First Amendment was released in April. Jameel Jaffer is the executive director of Columbia University’s Knight First Amendment Institute, which seeks to preserve First Amendment rights in the digital age. Mr. Jaffer previously served as the deputy legal director of the ACLU and its Center for Democracy. Ross LeJeunesse, global head of international relations for Google. Mr. LeJeunesse oversees Google’s efforts to advance a free and open internet space around the world.
Thank you all for joining us. Before we begin, I’d like to remind our audience in the room and those watching online that you can tweet questions to us using the hashtag #postlive, or leave them in the comments section of our Facebook Live stream. If I find them, I will pose some of them to our panelists, assuming we have time. So let’s get started. I’d just like to set the stage a little bit by saying that just one year ago, things were quite different in many ways in this realm. Gawker was still publishing; Donald Trump was not yet the Republican nominee for president. Chelsea Manning was still serving a 35-year prison term for her massive leaks of sensitive government documents. Facebook Live had not yet been used to capture the immediate aftermath of Philando Castile’s shooting by a Minnesota police officer. So we live in a different world now, changed by technology and politics. So I’d like to start with Floyd. Your book is called The Soul of the First Amendment. How worried are you and why about the state of the First Amendment at this moment?
Abrams: Some months ago, I made the mistake of saying to a journalist that I thought that we might be in for the worst time since John Adams sought to and then got Congress to adopt the Sedition Act of 1798. Looking back on it, I think that’s so far, an overstatement, but I am concerned about it. I’m concerned about it both in light of the daily denigration of the press by the president and the impact that I believe that has had on public opinion about the press, even at its best. And I’m concerned in a few areas in particular, the potential use of the Espionage Act, the potential effort to get journalists to reveal their sources, areas such as that. It’s still early and we really just don’t know where we’ll be next year at that time. But that’s my starting point.
Sullivan: Jameel, let’s turn to the political. Your Knight Center has written to the White House very recently about President Trump’s blocking Twitter users, making the case if I understand it correctly, that this is a First Amendment transgression. Would you explain and tell us how successful you think this can be and how you might follow it up?
Jaffer: Sure. Well, there’s a case that was decided yesterday by the Supreme Court called Packingham, which is among other things a recognition of the importance that social media now plays in our public debates, public discourse. A lot of things that used to take place in town halls or on the sidewalks now take place on social media. Those kinds of conversations now take place on social media. And the question of how the First Amendment ought to be applied in that context is an increasingly important one. I think it’s fair to see President Trump as a kind of social media president in the same way that JFK was the TV president and FDR was the radio president. Trump’s use of social media raises the same kinds of fundamental questions about the way that the First Amendment ought to work in this new realm.
And the argument we’re making is that President Trump’s Twitter account is a kind of public forum; people can respond to the president’s tweets, people can engage one another about the president’s tweets. The president uses his Twitter account for official purposes; to announce for example who he intends to nominate as FBI director or to engage with foreign governments or foreign leaders. He uses it all the time in an official way. And the president is certainly entitled to a personal Twitter account if he wants one. He could have a closed account, invite only his friends or family to join the account. But if a government official throws open an environment for expression, uses the environment in the way that President Trump is using this one, I think it’s the bedrock principle of First Amendment jurisprudence that the government can’t then exclude people from that forum on the basis of their viewpoints.
So I don’t think that there’s any room for debate about the legal principles here. These are principles that have been established for 50, 70 years. But the application of those principles in this new context is obviously something new. I think it’s really important. Social media really does have the significance that the Supreme Court said it did yesterday. And I suspect that there’ll be many other cases involving the way that the First Amendment should apply to social media over the next few years.
You asked what we intend to do. Well, the hope obviously was that President Trump was going to reverse the blocking of his critics. He hasn’t done that yet.
Sullivan: The minute he got your letter.
Jaffer: The minute he got our letter. He may yet do that. If he doesn’t, we are an institute that is set up for litigation and litigation is certainly an option.
Sullivan: Very good. Ross, one thing that didn’t quite make my list but we were talking about in the green room was that the term fake news wasn’t much in the conversation a year ago. It certainly is now. Can you tell me how Google is handling this and what your responsibilities are in this area?
LaJeunesse: Sure. Thanks very much. Thanks for having me. Fake news is one of those terms which has become so loaded that I think it’s important to first define what it is we’re talking about explicitly.
Sullivan: I’ve stopped using it myself, but it’s a shorthand.
LaJeunesse: Right. I honestly think it’s a term that has fallen from the weight of its own overuse and obliqueness for lack of a better word. But we do know and feel that as Google, we have a responsibility and an awareness that many of our products and platforms are used for free expression purposes and for the exchange of ideas. And we take that responsibility pretty seriously. When it comes to the issue of fake news generally, there was a decision that we would do more to identify specific sites, the only purpose of which was to advance untruths was an initial take on it.
It’s a difficult issue because we don’t live in a Manichean society where everything is completely clear in black and white. At what point does an argument about facts turn into a debate about philosophy and about interpretation? So we’ve been fairly thoughtful or tried to be very thoughtful about how we approach that issue. But another very important element for us is that we want people to be using our search engine for example as a way of finding the information they want and to the extent they were feeling overwhelmed or overloaded by advertisers or like I said, by sites whose only purpose was to peddle blatantly false facts. Margaret Sullivan and Ross LaJeunesse are married and living in Houston.
Sullivan: There you go. That’s not true.
LaJeunesse: That’s not true.
Abrams: More fake news.
LaJeunesse: So it is a difficult issue, but that’s the first step we’ve tried to take in addressing it. It’s been particularly interesting to see politicians try to use that nomenclature as a way of basically shutting down critics and journalists. But that is a much more difficult issue. The last thing I wanted to say is we’re a huge believer in counter speech, this idea which I think is at the heart of the United States as a free society; that the way you answer speech you don’t agree with or you don’t like is more speech. You don’t shut down the speech you don’t like. When you focus on counter speech, that’s how the truth eventually comes out.
Sullivan: And let me stay with you for a moment. Let’s talk about Google and privacy concerns. A write for Salon way back in 2014, which was a different era altogether, described Google’s corporate ethos as all date it can grab is Google’s for the taking. Privacy groups have asked U.S. regulators to review changes that Google has made to its privacy policies, allowing more thorough profiles of users to be built. How can consumers feel comfortable at a time when this kind of thing is going on, and what kinds of measures need to be taken?
LaJeunesse: Sure. Our approach to data is an acknowledgement first that one of the reasons, one of the key reasons that people use and enjoy our services is because they do use data to make them work better. That said, we certainly don’t view a user’s data as something we own. We’ve been very clear from the start that a user owns his or her own data.
So our approach has been this; if you want to use Google’s service anonymously or not signed in as a user, you are free to do that. They’re not going to work as well, quite frankly. If you’re searching on maps and you’re not signed in as a user and you’re searching pizza, you might get the Wikipedia entry for pizza and its origins or any number of responses that generally aren’t helpful. This is the example that I use because when I’m signed in and I’m using maps or Google search and I’m walking down 14th Street and I’m searching pizza, the services then know, oh, chances are Ross is looking for a place to eat pizza. Let’s serve up those results first.
But I digress a little bit. The first element is you don’t have to be signed in or give us any data if you use our services. If you do sign in and are using our services, our approach has been transparency, control and the ability to walk away. So we have very clear language about the data that we collect on our users. I acknowledge that the vast majority of our users never look at it and don’t understand it. Privacy policies are very complicated and the reason they’re complicated, as much as we’d like to simplify them, is because privacy regulators often dictate the exact requirements and the language that we have to use. And many of the times that we’ve come to disagreement is because we are trying to simplify the privacy language and data protection authorities around the world won’t allow us to do so.
But we do provide that transparency, and in fact we have a dashboard if you are a signed in user where you can go and you can see exactly—precisely that data that’s being collected and how we’re using it. And then we give you control. You can say, “No, I don’t want you to collect that data. No, I don’t want those types of services or ads to be served to me. No, I don’t like the fact that you might know that I’m often searching in this geographic area because that makes me uncomfortable,” you can get rid of that. So that’s the control element.
And then the final thing that we’ve done is we’ve spent a lot of engineering time to make it incredibly useful to walk away and take your data with you. Basically, I think it’s two clicks when you go to that dashboard. Like Google is creeping me out, I don’t want to use this anymore. I want to go somewhere else. A couple clicks, we’ve packaged that data for you and it’s an export function. You can take it with you.
Sullivan: See if you can get along without us; right?
LaJeunesse: Well, I don’t want to—that sounds far too flippant because we survive on the trust of our users, honestly. And that’s a key driver for us. When users start to feel—oh, they know too much about me, I’m not comfortable. I don’t want to do this anymore. Then we’ve lost their trust and they do go somewhere else. So that’s the approach that we take.
Sullivan: Staying in the world of technology, Jameel, your whole center was really set up because we live in such a different era now. And the First Amendment and speech issues have changed so much at a time when millions of sensitive documents can be distributed across the world in an instant. How does that change the way we think about free speech today? And what are the kinds of issues that you deal with?
Jaffer: Yeah, well, I think that some of the most significant threats to free speech today don’t take the form that we’re accustomed to. They don’t take the form of a government official saying, “You can’t publish that piece of information.” Instead, what you have is increasingly pervasive government surveillance, increasingly pervasive surveillance by private entities as well. And that kind of surveillance has a less direct but nonetheless real effect on what people are willing to say or publish, who they’re willing to associate with. That’s a very hard thing to get a handle on. It’s a hard thing to measure. It’s not even clear how has the tools to measure it except in a very narrow context.
That doesn’t mean it’s not real. I think even now, if you ask a 14-year-old kid what he or she is willing to search for online, you may find that this kid is going to hesitate before searching for information about politically sensitive issues or information on medical conditions or sexual information. People hesitate. And they hesitate because they know somebody is watching or somebody could be watching. And it’s very difficult to measure that kind of hesitation, but over time, those hesitations, the small hesitations change the way that we relate to one another and change the way we relate to the government. So I think of government surveillance and private surveillance as a serious threat to free speech that we’re only beginning to get our hands around right now.
You mentioned that new technology allows leakers to disseminate huge volumes of information very, very quickly, and that’s true. New technology also allows the government to track those people, to identify the people who are leaking the information much more easily; to identify the reporters who are talking to people who think of themselves as whistle-blowers, that often are whistle-blowers.
Sullivan: We have a recent case of that when reality—
LaJeunesse: Right, Reality Winner is a recent case of that. You may think that in many cases whistle-blowers or self-styled whistle-blowers aren’t in fact whistle-blowers. But most people recognize that in some circumstances, it’s a good thing that people who work for the government disclose information that the government more generally doesn’t want disclosed. And if you think that there are circumstances in which it’s a good thing, then you should think about the effect that all of this new technology in the hands of government investigators is going to have on the willingness and ability of those government employees to release information when it ought to be released.
So I think that is a very serious threat to free speech that people don’t always think of as a threat to free speech. It’s a result of the availability of new technology, the inexpensiveness of new technology. There’s a case that the Supreme Court just granted cert on a few days on called Carpenter, which involves the right of the government to access stored location information, so to find out where you’ve been over time by looking at your cell phone data. And people think of this as a privacy case, and it is arguably the most important privacy case that the court has taken in a generation.
But it’s also a very significant First Amendment case, even if the First Amendment is never mentioned. It’s a very important case relating to the power of the government to obtain information about First Amendment activity. Who you met with, who you spoke to, where you were, all of that has immediate bearing on your First Amendment rights. So I think that this is true more generally, that some of the most important First Amendment cases over the next generation will be at the intersection of the First Amendment and privacy, the First Amendment and the Fourth Amendment.
Sullivan: Floyd, since you are the person whose name come to mind when people hear the words First Amendment attorney in our country, what do you think the founders would have—how well would they think the First Amendment holds up in our digital age? And is it equipped to hold up in this age?
Abrams: First, I think the founders would be stunned at the breadth of First Amendment protection as it exists today.
Sullivan: More than they intended?
Abrams: Because they couldn’t foresee the future, they couldn’t intend it one way or the other, is the problem. And I think that trying to think back to what we know about what they thought, it’s—it wasn’t many years ago when what you do for a living would have been unthinkable. So when you talk about the 18th century and what would they have thought, I mean what they gave us was a very broadly written document. A document opposed by people like Alexander Hamilton, other great leaders of the country who didn’t want a bill of rights, who didn’t think we needed one.
I mean the more the new technology comes into play, the more we need the First Amendment, not the less, both to protect it and to distinguish I would say the role of the government from the role of private entities as to which the First Amendment doesn’t apply. I mean they have First Amendment protection, they are First Amendment players, but they’re not the government. And the First Amendment limits of course only the government. So it’s really difficult to think, except in this one way at least about what the framers would have thought. I think they would have wanted a very broad reading, a very broad reading of the rights, and they wouldn’t have known what the responsibilities would be. But the rights of the Googles of the world to gather information and disseminate it as they thought best, leaving of course all the hard issues for the future.
Sullivan: Floyd, staying with you for a moment, does free speech mean extending a hand to the most offensive speech out there?
Abrams: I wouldn’t stay extending a hand. Free speech means barring the government from limiting most communication of one sort or another. And included in the most in America and hence free speech, hence First Amendment, is outrageous, offensive, more than off-putting racist speech, which every other Western democratic country would deem criminal. I mean I’ve cited in my book statements of Donald Trump when he ran for president. What he said about Muslims and Mexicans was very controversial. In Europe, it would have been a crime because of their hate speech laws. And a good deal of what occurs and what is said in a political context, a social context and the like here would not be protected speech in Canada or England. I’m not talking about Russia, now. I’m talking about great democratic countries that care about free expression but don’t have anything like the level of legal protection for it that we have.
Sullivan: Where do you think the line should be drawn?
Abrams: I think the line ought to be drawn at least for us, and I do distinguish us from countries that have gone through very different histories. I don’t criticize Germany for making it illegal to deny the Holocaust or India to crack down on certain language which has caused communal violence in the past. But here, I think the bounds ought to be as sweepingly broad. And yesterday’s opinions by the way by the Supreme Court illustrate that; all but unanimous opinions of the court in areas where the public might well come out the other way.
Whether we can keep a convicted sex offender from going online in areas where children can go online held unconstitutional by the court, in a sweepingly broad opinion dealing with the nature of the new communication media that we have in this country and the need to protect it. So I would keep it very broad. Sure, we have exceptions; incitement to criminal conduct. There are some things of course we define as not speech, even though they’re words. Spying is illegal everywhere, here too.
Libel is not protected here. We give more protection for speech against libel laws here than anywhere in the world, but we have libel law. We have privacy law. But we limit them. We cabin them all because of the First Amendment and because it’s our sense that we’re not prepared to risk that level of government involvement and ultimately government censorship which could otherwise overcome us.
Sullivan: Jameel, how do you take on that question? Where if at all should a line be drawn?
Jaffer: I think I ultimately come out where Floyd comes out. I don’t find it an easy question at all. I grew up in Canada. I think Canada has a very healthy democracy and it draws a line somewhere different. So it doesn’t seem obvious to me that the sky is going to fall if we draw the line somewhere differently. I also feel like Floyd does, that other countries have made understandable judgments about where to draw their lines based on their own histories.
But it’s not like we don’t have our history. We have our own history here, and we ought to learn from our history in the same way that those countries have learned from their histories. So I’ve never been somebody to whom it was obvious that we should protect hate speech to the extent that we do protect it. To me, the best argument for protecting it is that the alternatives seem worse. I’m not enthusiastic about giving the government the authority to decide which views are sufficiently hateful and which ones aren’t. I think that those judgments would have been made differently 20 years ago than they would be made today. And they might be made differently 20 years from now than they are today.
But I think that it’s dangerous to—I don’t mean to suggest that Floyd was doing this, but it’s dangerous not to recognize the cost of the line that we draw. These words are not costless. The words really do cause real harms. They make it more likely that people will get hurt in the real world. And people do get hurt in the real world because of the words that we use. So we shouldn’t, I don’t think that we should take for granted that the line that we’ve drawn is the right line. I don’t think that we should think that speech is free in this particular sense.
This is not again a response to anything that Floyd said. But ultimately, because I don’t know what the alternative is, I don’t know what palatable alternative might be out there, I’m more comfortable with the line that we’ve drawn, that the Supreme Court has drawn, than I am with any other that I can think of.
Sullivan: Now, I’ll ask you the same question.
LaJeunesse: One thing we need to consider is that if we were to move to a model where hate speech is allowed for example, you’re not doing anything to address the underlying animosity at issue. I’m an openly gay man, and I would rather know if someone hates me because of my sexual orientation than to not know. And especially if that person is a government official with the power of the state behind him or her. I want to know that so that I can act accordingly, take whatever actions I feel I need to take to protect myself and my community.
I’ve had this conversation with civil society in parts of Europe, and we’ve had a pretty healthy debate over that very issue. And the view there is that there’s a sense of a public forum which must be kept sacrosanct, and that it’s sullied when certain words are spoken. And I understand that and I agree that it’s not my place to judge a different country’s system given their own history and their own beliefs. But as an American and as someone who was raised in this country and in this environment, that’s always been my view, that I’d rather know if someone is hateful because at least then there’s an opportunity to engage and try and change hearts and minds, even if you’re not going to be successful at that. So that’s one element to this that I think we need to consider.
The other thing is there’s really excellent work by this woman, she’s a professor at American University, Susan Benesch, and her project is about not hate speech but dangerous speech. What is the speech, the words, the coda that predictably indicate that someone is going to take the next step into violent acts, some form of acting on those beliefs? And it’s really interesting work; it informs a lot of how we view at Google our approach to our own platforms. But that’s a different set of considerations than what we were just describing. Most hate speech does not lead to violence or acts. So perhaps another reason to be very cautious in taking a different approach than what we’ve taken—[OVERLAPPING]
Abrams: And I can add too that I think there’s almost a strategic reason, at least for us, to continue down the road that we’re on. I mean when you think back to Weimar, Germany, they had hate speech laws then. They tried Nazis for engaging in hate speech. Before the Nazis took power, Goering was tried on that charge in the Weimar Republic, and it got them more publicity and it made them better known, and it didn’t limit the speech. And I think that is one of the lessons of history.
Sullivan: So it’s better to know and to have it out there.
Abrams: Yeah. And denounce it.
Abrams: And there’s the counter speech too, what you were talking about.
Jaffer: I think that’s a really important point, that it forces us to articulate our disagreement with those views, and that effort at explaining why those views are offensive is an effort that has a payoff of many diff kinds. Bu tone of the payoffs is to sort of galvanize the forces of resistance to those ideas. I think you’ve seen a little bit of that even over the last nine months. I think that’s a very important function that the First Amendment serves, sort of indirectly, by putting the burden on ordinary citizens to make the judgement for themselves of what speech is valuable and what speech should be beyond the pale. For all of the problems that come with the First Amendment, that’s a very important benefit of that principle.
Sullivan: Because you’re on a university campus and there will be other people speaking at this event more specifically about this, but how well do you think young people understand and subscribe to these kinds of principles that we’re talking about? Is there a good solid understanding, or is there a tendency to want to protect and back away from free speech?
Abrams: The polling data is bad and depressing. Dismal. And—
Sullivan: Tell us about that.
Abrams: Well, when you look at the data, 40%, I’m trying to think about the right year [ph]. But 40% of entering college students in one very recent year having said on the one hand they’re all for the First Amendment, then say that oh, they agree with the proposition that people on campus shouldn’t say things which make other people feel bad, and that colleges ought to do something to prevent or punish when that sort of thing occurs. I mean it seems to me for some time that we lost a lot in this country when we stopped teaching civics in junior high school. And awful lot of people, a lot of good, wonderful young people reach college without having touched the U.S. Constitution on the way.
Sullivan: Jameel, where are you on that?
Jaffer: I guess I see the same incidents that everybody else sees, the highly publicized incidents in Middlebury, at a few other colleges, Berkeley, and it’s plain that in those cases, there are students who were unwilling to listen to ideas that made them uncomfortable, reacted in precisely the wrong ways to controversial or offensive speech. And I think those are incidents in which something went wrong. Whether there is some sort of epidemic of repression going on across the country, I guess I’m not willing to say that.
My own very limited experience at Columbia is a very positive one. My sense is that the students are very open to hearing ideas that they disagree with, to engaging with ideas that they disagree with, and with offensive ideas. Columbia may not be representative. I don’t know. And my experience at Columbia may not be representative. But my experience thus far has been very positive. I also do think that you need to disentangle a few different things here, and it may well be true that students are less enthusiastic about the First Amendment than they used to be in a way that’s problematic. I think it is also true that students are—maybe for the first time, students at American universities are really grappling with the cost of some of this speech. And I think anyone who is going to defend the—
Sullivan: What do you mean when you say the cost?
Jaffer: The way that the speech has consequences in the real world. So when President Trump is saying on national TV that Mexicans—when he’s denigrating Mexicans or Muslims or whatever the group is, there are real costs to the real world. There’s violence in the real world that at the margins people are more likely to carry out because of speech like that.
And so I think that if you’re going to defend free speech, and I want to defend free speech and at the end of the day, I think the right answer is to protect all of the speech. But if you’re going to take that position, you need to grapple with the costs of the speech. And you don’t want to be obvious to the very real effects that speech has in the real world.
Sullivan: What does the grappling look like?
Jaffer: Well, so part of it is acknowledging it, just acknowledging that the speech isn’t, again, isn’t costless; that speech has effects in the real world. That’s why we protect it, because it can be powerful. That’s why it’s worth protecting. But for precisely the same reasons it’s worth protecting, it can be dangerous. And that doesn’t mean that we should suppress it. But it’s something that those of us who advocate for broad protection have to at the very least acknowledge and I think incorporate into our advocacy for broad protection of free speech.
LaJeunesse: I wanted to build on Floyd’s point about citizenship. I personally agree with him. And I actually have been thinking a lot about digital citizenship. What does it mean to be a citizen in a digitally enabled world? And we’re doing a lot of that work at Google, but it’s—we’re going to schools all around the country teaching the basics. But when I think about the lessons that I learned growing up in rural Maine, don’t take candy from strangers, look both ways before you cross the road, some basic rules of survival.
And I think about the world that we’re going to be moving into and how underlying all of it is technology and communications, it’s really a digital world. And we’re just not doing enough to teach kids how to navigate that world. Don’t believe everything you read. What does phishing look like? There’s a lot of crap out there that isn’t true. How to deal with fake news. And I think we really need to tackle this issue because if we don’t, we’re not only going to have kids who don’t know the Constitution, they’re not going to know really the basics of making their way in this world that is going to be incomprehensible to them.
Like I said, we’re doing a lot but a lot of it can be done at home. Like my sister with her kids, you don’t take the laptop into your room by yourself. It’s monitored. The time they’re on screens is limited. There are some basic things that I’d like to see schools do a little bit more in providing a—
Abrams: You don’t think it’s enough for someone to say I read it on the internet?
Sullivan: Not quite enough, no.
Sullivan: Great. Unfortunately, that’s all the time we have for today. I’d like to thank Floyd Abrams, Jameel Jaffer and Ross LeJeunesse for joining me for this discussion. Up next, I’d like to welcome my colleague Nick Anderson to the stage. He’ll be moderating our next panel on Free Speech on College Campuses, which we’ve just touched on a bit, but they’ll get into in a deeper way. So thank you very much.
Abrams: Thank you. [APPLAUSE]
Setting the Agenda: The First Amendment on College Campuses:
Anderson: Hello. My name is Nick Anderson. I write about higher education here for The Washington Post. And we’re here today to lead a discussion about freedom of expression and free speech and the First Amendment on college campuses, and the role that universities and colleges play as forums or venues for expression and some of the debate about that role that’s arisen in the last couple of years. We’ve had a very intriguing period on college campuses of upheaval and ferment and protest, and protest about protests.
And so with me to explore some of these questions are Christina Paxson. She is the president of Brown University. She is the 19th president of Brown and is an economist by training. She also has been president of Brown for the past five years, and she’s seen a lot of protests in her time there. And to her left is Robert Zimmer. He is the president of the University of Chicago. He’s a mathematician by trade; also spent some time at Brown before coming to Chicago. Was provost at Brown. And he is the 13th president of the University of Chicago, and he has been president there for 11 years.
And the two of them have staked out some interesting viewpoints about free expression and safe spaces, and we’re going to dive into that in a second. But I want to just remind the audience that if folks out there are following us, that the way to ask a question is to tweet it. You can post a question to us using the hashtag #freetostate. So we will be monitoring that hashtag and hopefully, during our discussion here I will be able to grab some of those questions and pose them to our two presidents. Now, I’m going to kick off by talking about something that’s happening on Capitol Hill today. We just noticed that the Senate Judiciary Committee held a hearing on this issue and the title of the hearing that I read was “Free Speech 101: The Assault on the First Amendment on College Campuses.” Now, the First Amendment, of course, applies to public universities and these are two private universities, so we’re going to put that caveat out there.
But there is a viewpoint, I think, expressed by the title of that hearing: “The Assault on the First Amendment on College Campuses.” And I wondered if I could just ask each of you to give me your take on whether this is an exaggeration, is this hyperbole? Why is this even being raised as a question? Is the First Amendment or freedom of expression under assault? Why are we here today talking about this? Why don’t we start with you, President Paxson?
Paxson: So, thank you. It’s not hyperbole and I think there is a serious issue here. If you look at how much university presidents are writing and talking about this issue, we wouldn’t be doing it if there wasn’t a cause for concern. There is really good polling data that shows that students much more than in the past will say that they think that it’s okay for universities to restrict expression on campus. That it’s okay to not like controversial speakers. And for Brown, for Chicago, for most other reputable—probably all other reputable universities—we have very strong policies, whether we’re public or private, saying that we have to protect academic freedom, which includes freedom of expression.
It’s central to what we do. You can’t advance knowledge if you don’t have an environment in which people can express and debate ideas. So we need to pay attention to this.
Anderson: President Zimmer?
Zimmer: Well, I completely agree. I think there is a very serious problem and I think it’s widespread. And I think the thing one needs to bear in mind about it goes back to your introductory comments about the role of universities and if you are actually considering the nature of education that universities should be aspiring to provide, it demands an environment in which everyone is mutually challenging each other. It is simply impossible to have an education, which students are gaining the types of skills they need in terms of understanding argument, being able to advocate and many other skills that we’ve all talked about. It’s impossible to do that in an environment in which one is not open to ongoing challenge, argumentation, discourse, and debate.
So that’s the fundamental issue. You just can’t get by without it. Now, over a long history, there are ongoing challenges to that issue. This is not a new issue. It’s an ongoing issue and usually, when people think about people not being free to speak, they’re always thinking about people that they disagree with. There are very few people who will say, “You know what? I think we should restrict speech.” And some of the people I agree with and who are really forceful advocates for what I think are among the people that we shouldn’t have. I’ve never actually heard anybody make that argument. So what that indicates is that what people are really doing is saying, “I don’t want to hear what people that I seriously disagree with have to say or that I think are offensive have to say.
And this is the ongoing problem that you have to have and it’s simply impossible to have an environment in which one segment of the university community doesn’t like this type of speech. They’ll say, “Well, maybe that’s okay.” And then another segment says, “Well, I don’t like that kind of speech.” And what do you say to them?
Anderson: So President Zimmer, I’d like to ask you and President Paxson about something that the University of Chicago’s dean of students wrote last year. It was rather provocative. He wrote to incoming students that, quote “We do not support so-called trigger warnings. We do not cancel invited speakers because their topics might prove controversial and we do not condone the creation of intellectual safe spaces where individuals can retreat from ideas and perspectives at odds with their own.” Now, the reason people zeroed in on this is that your dean of students was going right after trigger warnings and safe spaces and I wondered if you can tell us why.
Why did your deputy on this issue feel compelled to go after those concepts? Was there something problematic about them?
Zimmer: Well, first, when everyone talks about trigger warnings and safe spaces, one needs to recognize that the words are being used by different people to cover a whole multitude of phenomenon. So they’ve become problematic simply because usually, people start arguing about them without actually talking about what they mean specifically.
Anderson: So we have a definition problem?
Zimmer: You have—
Paxson: We do.
Zimmer: You have very real definition problems. The reasons that these issues come up is that the nature of the balance of what is being done in certain places in saying that people need to be protected from speech has, in some people’s view, and including mine, gotten way out of whack and that you are fundamentally taking a notion like trigger warnings, which started for dealing with post-traumatic stress syndrome, and I don’t think anybody is commenting upon the professional expertise that people who are trying to treat post-traumatic stress syndrome. But then the word segways into a whole bunch of other areas where it is very questionable that it’s appropriate to have policies that actually apply, that people are supposed to provide these warnings.
Anderson: President Paxson?
Paxson: Well, the trigger warning thing is a very good case in point about the definitions and the need to plan these things precisely. If you ask most faculty, “Do you use trigger warnings?” They say no and then if you say, “Would you ever occasionally give students a head’s up if the reading for the next week has some disturbing material?” And then answer is, “Yeah, I might do that.” A good example, we have a professor who I was speaking to who teaches about the Holocaust. Well, there’s some tough going there. And so she’ll routinely say, “This is coming up next week.” Now, under the tenants of academic freedom, she has every right to do that.
So our view on trigger warnings, if that’s what you want to call them, is we give a lot of discretion to faculty to teach the classes the way that they think is most appropriate that’s going to educate their students the best.
Zimmer: Let me add that I totally agree with that. There’s one kind of misunderstanding about that letter is that faculty do what they want in their class. So if somebody wants to say something like that, that’s totally within their jurisdiction.
Anderson: So you might support so-called trigger warnings in some circumstances?
Zimmer: What I’m saying is that faculty in their class do what they want. What I’m also saying is that having a university policy that says to faculty they must consider these types of issues under these types of circumstances and they must make certain kinds of representations and statements; that’s totally off base, as far as I’m concerned. And so this is, again, part of the way where one needs to understand definitionally exactly, what it is you’re talking about.
Paxson: Right, and I think the issue of safe spaces. You also mentioned it. That’s exactly the same issue. We had what I thought was a kind of funny experience. My head of communications got a call last summer asking—from a reporter asking if we had a safe space in every building. And we were like, “What? What is this supposed to mean? That we have padded cells that are idea-free zones?” [LAUGHTER] And it was kind of funny but it helped me realize that when we talk about safe spaces—and frankly, most people on campus have stopped using that term because it doesn’t mean anything. It’s just thrown around as sort of an insult to campuses or to students without having any clear meaning.
Anderson: So the criticism of safe spaces comes from a point of view that says that somehow colleges and universities are coddling their students, right? That they’re protecting them from ideas too much and I wondered, do you think, either of you, that students themselves are afraid of uncomfortable ideas. Do you think that they want this protection?
Paxson: I would love to hear what Bob has to say about this. We may disagree. When I look at Brown students—it’s hard to characterize students. There are 6,000 of them. I don’t see students who are acting for protection. I just don’t. I see students who are very concerned about a set of issues in the world right now. They’re concerned about racism. They’re concerned about equity. They’re concerned about politics. Any number of things. They’re not shying away from hard issues. So their tactics for trying to get what they want sometimes aren’t where we want to go. Shutting down speakers is not right. But I don’t see students asking for protection because they’re scared or they feel frail or fragile.
Zimmer: I’m less sanguine on that point. So for example, after my editorial in the Wall Street Journal that brought this whole issue up, I received a number of notes from students at other universities saying that they wanted to say such things but were advised by their fellows that they would be ostracized for saying such things. I hear this from students around the country all the time. I hear it from faculty all the time that in fact, they are nervous about what they have to say and—
Anderson: Are they students or faculty from particular points of view? Are they conservative points of view?
Zimmer: It depends on where you are and I actually don’t think the point of this issue is where—there’s going to be sometimes where you’re going to get pressure from the self-identified left and sometimes where you’re going to get pressured from the self-identified right. This is not an issue where there’s some narrow focus of one group or another. At one particular campus and at one particular time, you may find that you’re getting one particular type of pressure. At another campus at the same time or the same campus at another time, you may get the pressure in the other way. And I think this is a very important point. It’s too easy to turn this into a political issue, which it fundamentally is not, and it goes exactly to this point that I made before. That people often do not want to hear people with profoundly different views.
And frankly, I think it’s incumbent upon universities to be cultivating an environment in which this is acceptable and important and where people see it’s critical to the own quality of their own education that that happened. I will say that the ambient environment of demonization—again, in both directions of people holding opposite views doesn’t help the environment on university campuses. But I think it’s incumbent particularly upon universities to work very hard to foster this view and it has to be purposeful because it’s not natural to people.
Anderson: So we have a couple of questions from the Twitter-verse. I’m going to toss one out here from Helena. “During the ‘60s and ‘70s, colleges were considered beacons of free speech, good and bad. When was the turning point in the climate and were there any specific turning points in the last five or 10 years that you would point to?”
Paxson: I think we had a bit of a tendency to glorify the ‘60s. [LAUGHTER] And if you actually go back and you read the paper, there were violent campus protests. Actually, the Chicago Tribune in 1969 protested itself by taking a day off of writing about student protests. Right? And so it was not exactly a free speech, all ideas are equal zone. So I look back even farther in history and university campuses have always been places where new ideas come forward. They have been places that reflect all of the difficult issues that we see on campuses. In the 1950s, we were grappling with McCarthyism. In the ‘60s, it was civil rights, it was women’s rights. Now we’re dealing with a different set of issues. So don’t get me wrong. I’m not sanguine about what’s happening now. And I do think that at each of these historical moments, we have to support and honor the fact that our students and our faculty—they don’t take the status quo for granted. They’re pushing boundaries. That’s their job. But we also have to make sure that they do that in the context where they listen to other viewpoints and where they don’t go off the rails.
But be a little careful of glorifying the ’60s.
Anderson: So I’m going to act President Zimmer a question from Tyler: “What is your view on hecklers and their veto power employed by some activists on campus? Should protests be distinguished from harassment?”
Zimmer: Yeah, well, this is actually a very important point. So first of all, protest is an absolutely legitimate form of free expression. So any attempt to say that protest needs to be limited or controlled because of just not liking protestors is just itself another example of constraining speech. So protest itself is absolutely part of what universities should expect and should embrace. It’s a form of speech itself. Now, what you cannot do and what is not acceptable is to arrogate the right of free speech to yourself to say, “I can speak but that person can’t.” The people in the audience can listen to me, but not to that person.
So the heckling and disruption is arrogating to yourself the right of free speech and eliminating it for other people and that’s simply not acceptable. And that’s a very clear distinction. Protest is great if that’s what you want to do. We support it, absolutely. The minute you start taking away somebody else’s right of speech, that’s a problem. So disruption is a problem.
Anderson: President Paxson, you confronted this issue a few years ago when New York Police Commissioner Ray Kelly came to speak and there was what might be called a “shout-down” episode there. Can you talk to us a little bit about that and what you learned from that episode?
Paxson: Sure, so this was an episode that was about three-and-a-half years ago. In the recent spate of shout-downs, it was probably one of the first and maybe more mild, in a way. So maybe we were lucky. I don’t know. We had it first. And to me, quite honestly, I wasn’t expecting it. I was a relatively new president. It hadn’t happened at Brown for a while. And clearly, a violation of Brown’s policies. So we handled it the way we handle violations of policies. We have student conduct proceedings. We follow them. And I think we learned a lot from that. I think we learned a lot just about the mechanics of event management. About how you make sure that you position the event, where you host it, who is allowed in the room. In the Brown event, it was a combination of students and members from the community; people from outside of Brown.
And that can be a problem, as we’ve seen at Middlebury and at Berkley, where people who come in who don’t really care about our rules and I think in that sort of instance, we have the right to restrict to ticket events. So just things like that. The other more important point though was that I realized that this core value of academic freedom, which I had always taken it for granted, but then I’m an academic so it’s something I think about a lot. And what I realized was that our students coming in don’t understand it. They don’t appreciate it, and why should they? They haven’t learned it. And so from that point on, I started talking and writing much more regularly about not only that you shouldn’t disrupt events, but why?
Why is it so essential not just to a democracy, but also to a successful university? So those were good lessons.
Anderson: So let’s talk about safety and freedom of expression here for a minute. Because this arose in Berkley where there was much discussion about sort of how to ensure that there weren’t violent clashes if and when Ann Coulter would speak at Berkley and this issue of safety pops up, I think, again and again. Colleges sometimes ask groups for money to pay for the extra police costs and security costs. What’s the right role for colleges to play in safety and in funding safety to ensure that speech can occur?
Zimmer: Well, I can give you a very concrete example of something that happened after the Charlie Hebdo incident, which is a woman who worked there came to Chicago, was invited by a group of students to speak. It was the first appearance that this woman from Charlie Hebdo was going to make after what happened. And we needed a lot of security. Well, if a particular school wants to hold an event that is going to require extra security, we ask the school to pay for it. It’s usually not a lot. They can usually afford to do it. This was a student group and I got a call the night before the event because the security precautions kept going up as word kept going out and I got a call from a faculty member the night before, saying, “We can’t pay for it.” It’s a student group, they tried to raise money, and they can’t do it. And I said, “Okay, we’ll pay for it.” And we did.
Anderson: That was a singular situation?
Zimmer: Well, I wouldn’t say—I’m not sure what was particularly singular about it. It had singular qualities but I think there’s something to be learned from it in general, which is that it becomes very problematic if every time there’s some slight security issue, that that becomes a reason for canceling it. It can become a convenience. It can become an excuse. It becomes an easy way. Now, if you want to go to the other extreme, obviously, one can easily make up examples where the universities simply do not even come close to having the resources to provide anything remotely like a safe environment. And then you’re in an emergency situation, which becomes quite different. But as with a lot of these issues, they’re not totally abstract and the question is how are these things being used in a real way? When you really look at the concrete situations, is this something that is being essentially yielding to a type of behavior, a mindset, an attitude where free expression goes way down the list of things that are important or is it real and serious and a true emergency? And I don’t deny that there are situations of the latter. But I just think that it’s very important that universities and colleges take this free expression issue as definitional for who they are and what a university is, just as Chris was describing. Why is it important? That’s not a theological principle. It’s how are we going to do a good job at what our mission is?
We’re supposed to be educating students. We’re supposed to be encouraging research. How do you do that? Free expression is part of that and so that being focused on that priority has to become a guiding principle rather than, Well, yeah, we care about it, but gee, we’ve got all of these other things we care about too.”
Anderson: So I want to ask a little bit more about the safety question and from a slightly different angle. Sometimes people are concerned that campuses are getting hijacked by outsiders. They’re kind of pouring into express their viewpoints and I know that you’re private campuses, not public, so there’s a slightly different set of issues there. But to what extent are universities responsible to sort of be forums for free expression from any, which way that’s coming onto campus? Or to what extent can they just sort of shut that off of campus and say, “Go somewhere else.”
Paxson: Well, as you said, the issues for privates and publics are somewhat different and we allow anybody to come onto campus to speak if they’re invited by a member of our community. And that’s a good principle and I try to keep events open to the public. I think to the extent we can do that, that’s great. In cases of safety or security, I think it’s appropriate to restrict attendance. There is this concern that campuses are becoming these battlegrounds for alt-left and alt-right groups and what do you do? Again, every situation, you have to look at on its own merits and you have to think about how can I keep my students safe while, as Bob said, maintaining the central idea that allowing people to speak is important.
If you let outside groups shut things down, you’re going to have a lot of things shut down.
Anderson: But do you err on the side of letting the outside groups come in the hopes that perhaps that itself is an educating experience for the students?
Paxson: Well, again, it’s really hard to answer that without being in a specific circumstance. Can you talk to the groups in advance? Do you know who they are? It depends on the specifics. It’s very hard to generalize.
Anderson: Okay. I’d like to ask one more question. I think there’s a general view out there that sometimes people who are supporters of President Trump are not welcome on certain campuses and their viewpoints are not welcome on certain campuses and they don’t feel comfortable expressing it. Now, you said that you don’t want to politicize this, but how would you answer that quickly to folks who have that concern?
Zimmer: I think it’s a concern. I think if you look around the country, you see a number of incidents of these things being expressed and I think it is a concern. I think it’s very unfortunate.
Anderson: President Paxson, what have you observed?
Paxson: Look, it’s no secret that college students tend to be more liberal than not. There was a UCLA poll that was done a year ago, 20% of new college freshmen identify themselves as being conservative or very conservative. So we have to do things to encourage students who are in the minority to feel comfortable speaking. That’s really important. One thing we discovered after the election was while our students may have been primarily not in the Trump camp, a lot of our staff were and we have to think about how we can create a community of faculty, students, and staff where everybody feels like they’re valued and respected and that they don’t have to hoe [ph] a certain political line. So I agree with Bob. I think that that’s something we do have to watch out for.
Anderson: Well, thank you very much. That’s about all the time we have on this issue today on college campuses. I want to thank President Paxson and President Zimmer for coming to speak with us and everyone in the room, thank you for watching and those online, thank you for watching. And at this time, I would like to welcome my colleagues, Sally Quinn and E.J. Dionne to the stage to moderate our next discussion, which is on religious liberty. [APPLAUSE]
Religious Liberty: Freedom of – and from – Religion:
Quinn: Thank you.
Quinn: Hi, everybody. I’m the founding editor of On Faith.
Dionne: And E.J. Dionne. I’m a columnist here at the Post. I’m also with Georgetown and the Brookings Institution.
Quinn: So we’ve got a fabulous panel today. I just told them not to throw spitballs at each other. [LAUGHS] Before we get at least halfway through the panel. With us to talk about religious expression and the First Amendment are Dr. Stephen Prothero, chair of the Department of Religion at Boston University and the authorities of numerous books on the subject of religion, including his bestselling religious literacy. And Steve is also the mastermind of the new religion exhibit at the Museum of American History, which opens on June 28 and you all have got to go see it. It’s fabulous. Wajahat Ali is a journalist, writer, lawyer, playwright, and most recently, a host contributor at the Huffington Post and a contributing opinion writer for the New York Times, where he writes essays about religion, family life, and politics, and this Sunday, he had the most beautiful Father’s Day piece in the New York Times about saying “I love you” in the Muslim culture.
Dr. Russell Moore is president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the moral and public policy agency of the nation’s largest Protestant denomination. Dr. Moore has been in the news recently for taking on the alt-right against racism and winning at the Southern Baptist Convention annual meeting. And he has made headlines last year when he called evangelical leaders who supported Trump “a scandal and a disgrace.” And so we now call him “slugger”. [LAUGHTER] So I’m going to start out the question—
Dionne: And I just want to say, first of all, we have encouraged our panelists to either dark or light humor, whichever way they want to go in a very difficult discussion and I just want to remind listeners and watchers to tweet your questions to us using the hashtag #FreetheState or leave them in the comment section on Facebook Live. We’ll pose a few of your questions during our conversation. They will pop up on this little device in front of me. Go ahead, Sally.
Quinn: Okay, so I’m going to start out by asking all three of you the same question and I’m interested to see whether you get the same answers. So what does religious freedom really mean to you? What is religious freedom actually and what does pluralism mean as applied to religious expression? So Steve, do you want to start?
Prothero: Thank you, Sally. I think my first answer is religious freedom is something most of my liberal friends are no longer interested in. It’s kind of a relic from the ancient past, from the founders. And I find that as a supporter of religious liberty, I find that troubling that in the times in which we find ourselves now that the spirit of the culture wars has sort of kicked over into politics that doesn’t really have anything to do with religion or morality as we thought of the culture wars questions, that being your home ground. As more and more politics has become about war and about sort of military metaphors, the procedural understanding of our republic where we would safeguard these various liberties in the First Amendment has started to go away and we evaluate things like religious liberty very much on the basis of what does this do with Indiana, where they’re trying to undercut LGBTQ rights with religious exceptions?
Well, we need to fight against religious liberty as opposed to saying, “Well, here’s a place where religious liberty might lead to an outcome that we don’t support, but we know down the road, it would be useful.” So I think my main sense of religious liberty now is it’s kind of an endangered species.
Quinn: It’s an endangered species. Russell?
Moore: I think religious liberty is answering the question of whether or not the state is God. And so I come from a tradition where the Colonial era, founding era Baptists were willing to stand up for religious freedom for everybody, not just for themselves because they knew what it was to be persecuted, what it meant to be maligned and marginalized and what it meant to have to pay a fee in order to get a license to preach. And they said the issue isn’t how much money we pay. The issue is who has the authority to ask for it? And so I think religious liberty is saying there is a limit to the state’s power and the human conscience is not subject to the state’s power.
And when you’re talking about religious liberties, one of the reasons why I will say to my non-religious friends, “Religious liberty ought to matter to you as well whether you have any religious convictions at all. Because a state that could pave over a religious conscience can do anything.” And so that’s what I think religious liberty is about [ph].
Ali: So I’ll answer with a story. First and foremost, I appreciate you guys allowing a modern Muslim on the stage. Apparently, we’re an endangered species. There are six of us left in existence, so I am the bearded circumcised unicorn of this panel. [LAUGHTER] Thank you. Thank you. Some people are like, “Is he really moderate?” You won’t know. [LAUGHTER] And I’m going to—I’m going to answer your question with religious liberty and what it means to me through a story, very quickly. Right now, it’s the month of Ramadan. I’m fasting so I apologize for my Ramadan breath. I might kill Russell right now and I’m living in America, born and raised in the United States of America where I follow an Islamic calendar, which is different from the Gregorian calendar. It’s 11 days shorter and I’m going to go to a mosque later on to open my fast at sunset, which is a constitutionally protected house of worship; or at least it was. But according to some people, Islam is not a religion, but is a preeminent, totalitarian threat to America, where Muslims follow Sharia, a legal military political doctrine that seeks to supplant the Constitution with Islamic law and make your children wear hijab and eat falafel. But I’m going to go to this mosque and in the mosque, I might find some people—a woman who wears a hijab, a woman who doesn’t wear a hijab.
Maybe it will be the woman, Samantha Elauf, who two years ago tried to apply for the job at Abercrombie & Fitch and was denied and the Supreme Court in an 8-1 ruling said that Abercrombie and & Fitch actually did not accommodate her religious practices. They ruled in her favor. She might be there at the mosque. A man with a half-inch beard who was a prisoner might be at the mosque as well and maybe Holt vs. Hobbs, a Supreme Court case, 9-0 written by Alito, which said that the prison violated the free exercise of his religious beliefs by him keeping his half-inch beard. There will be hipsters. There will be immigrants. There will be old people. Maybe there will be some refugees from Yemen and Libya and Somalia and Sudan and all of these freaky countries.
It’s going to be Maghrib at sunset. We’re going to be starving. We’re going to eat. We’re going to eat Halal meat. Yes, Halal meat. We’re going to eat Halal Guys and Halal Guys actually fed a lot of people in DC and then took their truck and fed us and a lot of people who are scared of Muslims loved their Halal meats. So reconcile that. [LAUGHTER] And then we’re going to pray to God; Allah, yes, in Arabic in Virginia. And after we pray, we’re going to have a big tasty cake, maybe made by gay people for gay people. So it will be Muslim gay cake. [LAUGHTER] And then finally, since it’s the last five days of Ramadan, we’re going to try to figure out when to celebrate Eid [ph], and if you put 10 Muslims in a room, you’ll get 11 answers to when Eid is and if you’re in New York and you go to a public school, some of these kids will be lucky enough to take school holiday off because they accommodate Eid. So that’s what religious liberty means to me as an American Muslim in 2017 America. [APPLAUSE]
M: That sounds like fun. Can I come? [LAUGHTER]
Ali: You all can come. The food is tasty.
Dionne: That’s why I love America. What a wonderful answer. I want to press you, Steve, on this notion that liberals and seculars have given up on religious liberty and I want to sort of ask the rest of the panel to talk about this. I don’t think they’ve given up on religious liberty. I think they have given up on the definition of religious liberty that’s been imposed on it by others. For example, if you are LGBTQ, what you hear when you hear religious liberty are impositions on their rights to get married or for that matter, on their rights to hire the florist or the baker that they want. So from their point of view, this is actually the opposite of liberty and that that’s what’s begun to alienate people from—and I agree with you, religious liberty should interest everyone. So why are you only talking about one side of this culture war? And to both of you, I’d like to ask the other question, which is we now—and we talked about this before the session. It used to be primarily that we thought of religious liberty as protecting religious minorities. And suddenly, you have Christians, the majority in the country saying, “No, it’s our religious liberty being impinged upon.” How does that work? What does that mean historically? Steve, if you could take the first part of that and I’d like to see where you guys are going.
Prothero: I would sort of answer them together from my perspective in the sense that I think what’s going on is that there’s been an assertion on the right; religious right and otherwise, of this war on Christmas language. Right? Donald Trump saying, “I’m going to finally stand up for Christians because nobody is standing up for Christians.” And the sort of kind of Nietzschean transvaluation [ph] of values here where the purpose of the First Amendment, religious liberty protection, isn’t to protect religious minorities. It’s to protect the religious majority that’s being besieged. And that’s what you’re referring to as the kind of imposition of an alternative conservative reading of the religious liberties clauses of the First Amendment and I think the left then is reacting against that.
Where I would like to see the left react is to say, “No, that’s a misunderstanding of our religious liberty and that we need to assert a more traditional one that goes back to Thomas Jefferson’s letter to the Baptists and to the Baptists themselves and to the founding rather than seeing, rightly in my view, certain conservative Republicans using the First Amendment for their purposes. Which they are, I agree with you. But saying, “Look, okay, fine, you’re making that argument there, but we’re not just concerned about the use of this by the Christian right. We’re concerned about the Amish. We’re concerned about Santeria practitioners. We’re concerned about Muslims. And so I think there’s a kind of shortsightedness and a sort of historical illiteracy, at least among many of my liberal friends, where all they’re seeing is that push from the right and the redefinition of our religious liberty from the right rather than seeing this long history of the usage of this by both sides to protect religious liberties of all Americans.
Moore: I think as it relates to religious liberty in the culture war, the left has been the aggressor in recent years. So if we look at situations ranging from Catholic adoption agencies in Massachusetts not able to carry out to their mission because they hold the Catholic doctrine. Or nuns having a mandate to purchase contraception.
M: That’s not what it is.
M: They have to sign a note saying we don’t want to purchase contraception. That’s not purchasing contraception.
M: Well, if it activates the mechanism that does—
M: That gets them out of having to buy contraception. Anyways, that’s a long argument.
Quinn: That’s for another panel.
Moore: So I think that even down to the definition of the Religious Freedom Restoration Act. So the argument that comes, “Well, you all are redefining or you’re reapplying religious liberty.” That doesn’t work if you’re talking about the very same law that the ACLU and other progressive groups supported in 1993. It was signed into law by Bill Clinton. There have been examples of the exact same text, RFRA [ph], coming up in states and being categorized as “religious liberty” in scare quotes. That’s a real problem here. When even talking about religious liberty at all, it immediately causes this reaction saying, “Well, that’s discriminatory and that’s bigotry.” It’s just not.
Dionne: Could I press you one point on this? And I’ve had this dialogue with friends who are in the LGBTQ community and they say, “Look when we were in the minority, we were told we had to live with the rules of the majority, which essentially made our whole lifestyle illegal. Suddenly, both of the courts have changed, but public opinion has changed.” Now, the majority is on our side and it’s only now that religious folks are starting to say, “Wait a minute. You have to protect minority rights.” And they asked the question back to religious conservatives, “Where were you when our minority rights were in danger?” What do you say to that person?
Moore: Well, I would take issue with your premise there.
Dionne: I thought you might.
Moore: Even if I granted it, what I would say is does that mean then that you want to have turn around majoritarianism in a way that would violate other people’s rights. Again, I don’t think that’s what’s happened here, but even if it did, the last thing that we want is liberty that’s defined by whoever has the most votes at the moment.
Quinn: Steve, I want to get back to the left sort of basically advocating their interests or their involvement in religious liberty because that should be a left position. But I don’t know what you mean by “left” and I don’t know what you mean by actually abandoning it and I’m interested in what you all think, too. In a way, it’s a little bit like the left sort of getting rid of the American flag. It used to be that only Republicans wore American flags and so Democrats didn’t wear them because they didn’t want to be identified as Republicans. And so I get a sense that you’re talking a little bit like that, like they have sort of co-opted or hijacked the religious right. They’ve hijacked religion as an issue and so we’re just going to back off. But that just seems too passive in a way. Russell, how do you feel about that? Do you feel that the left has sort of backed off and that it’s all in your court now?
Moore: No, I think the left has been an aggressor here on religious liberty and I think the reason for that, for the most part, is a lack of empathy for what religious conviction actually is. So when I’m having a conversation with secular progressive friends, I often find that they just can’t imagine what it would be like to be a person who really does believe I’m going to stand in judgment one day and give an account for my conscience. And so the fact that you have these two very different worlds in American life has contributed to the problem, in my view.
Prothero: And I think the context is really important where we are an increasingly divided country, right? Where we increasingly see members of the other party as un-American or even less than human, right? And so in that context, it becomes hard to have that sort of empathetic, “Okay, look, I know this religious liberty ruling is going to go against my politics in this moment, but in another moment, it’s going to be very important to me to have that principle so I’m going to have it.” We’ve become shortsighted in that. We don’t see these protections as American protections because we don’t think of ourselves as Americans as much. We think of ourselves as partisans of the Democratic Party or partisans of the Republican Party and this is precisely the warning that was given in George Washington’s farewell address; a warning about the mischief of the spirit of party, of people who are going to feel more identified with their party than with their country or for that matter, in many cases, with their religion, right? Whereas you’ve argued, Russell, increasingly, some people are forgetting principles of Christianity because they’re more committed to being Republicans than they are to being Christians and I think it’s in that context that religious liberty looks like whatever use you last heard it.
Russell, you’re hearing the left using it in a certain way. I’m hearing the right using it in a certain way. Here we are in Indiana. We need to use religious liberty in order to provide protections against LGBTQ rights or with the president, “Christians are under siege. I am going to protect your religious liberty.” And this is a new way of thinking about religious liberty and I think that my friends on the left—and you asked who they are. They’re my friends on Twitter and Facebook, in my little bubble there with my folks on the coast who are in universities and are all of the bad liberal people.
Quinn: Nobody in Middle America?
M: No, so real beings. [LAUGHTER]
Prothero: Just those fake people in California, which is whatever percent of the country. And so among those folks, when I stand up and I say, “No, we need to protect religious liberty in this particular case, even of conservative Christians.” They get back to me and say, “Well, you’re this horrible person because how can you say that because that’s not the correct liberal democratic thing to be saying in this moment.
Dionne: Just looking at this from the point of view of an American Muslim, and I think the—
M: I didn’t know you were Muslim.
M: You’re a Muslim?
Dionne: I’m asking.
Dionne: Well, you gave me an opening to ask the question that I wanted to.
Quinn: He’s Catholic. He’s Catholic.
Dionne: I’m Catholic. And it strikes me that if you look at our history, there is a remarkable similarity between where American Muslims are now and where Catholics were when they started coming in in large numbers in the 1840s. That Catholics were seen as loyal to a foreign power. In this case, the pope. They were seen as deeply authoritarian. People would point to certain old papal teachings and it took a long time, but eventually, Catholics and the Klan was still around in big numbers in the 1920s and how Smith couldn’t get elected president. It seemed to me until recent years, American Muslims were making progress at a fairly rapid clip. If you look at politics out in Loudoun County, Virginia, the Muslim community there is a very important part of the civic and political structure out there. What does this all look like when you think about American history and the role of today’s American Muslims in that story? What sense do you make of it?
Ali: Yeah, I could give critical pushback to both sides, from the left and the right. It’s ironic because if you look at American history and you look at Thomas Jefferson, 11 years before he wrote the Declaration of Independence, he actually ordered his first Koran, which came to him from England, and he actually read it, unlike some other elected leaders, he didn’t need big pictures. What? Too soon? My bad. [LAUGHTER] And he read it and 11 years later, he wrote the Declaration of Independence, very much using religious liberty as a protective shield for the Mohammedans—we were called Mohammedans back in the day. Muslims, Mohammedans, hakuna matata—Pagans, Jews, and Christians, right.
So, that was the intention and the framework. Religious liberties, freedoms for all, protection makes America great again.
Prothero: And he was even accused of being a secret Muslim in the election of 1800.
Ali: Yeah, and—
Prothero: It wasn’t Obama, who was the first president to be—
Ali: And Obama is a Muslim, by the way. Thank you for voting for him. Secret’s out. But, look. You said about Catholics, we see parallels, right. Certain parallels exist. American Freedom and Catholic Power was a best-selling book in 1949. That book, if you literally read everything he said about Catholics, you just replace Catholic with Muslim. It is almost the exact same talking points from the 2012 and 2016 presidential elections.
In 1959, when that book was re-released, when a young man by the name of JFK was ascending, it became a best-selling book again, warning about the rise of the Catholic threat. What’s the difference, I would say, is the following, and I think this is what’s causing a lot of the panic on the right, is Muslims, unlike Catholics and Jews, will never be absorbed into whiteness. We are the most religiously diverse communities in America; 30% African America, 25% South Asia, 20% Arab, and the rest miscellaneous.
And so, whether or not we will be integrated or assimilated, I think one of the major fault lines here is race. And also, another major fault line, and it’s happening in Europe right now, in France, in UK, in Netherlands, for example, in the last six months, is the conversation about Islam. Whether or not our religious liberties and freedoms extend enough to include the muhajiba woman, who is fasting in the mosque; whether or not we restrict or contract or expand. And from the right wing, what we see is the use and abuse of religious liberty, not as a shield, but as a sword against Muslims, LGBT, and women.
From the left, for reasons that Stephen has already mentioned, and I wrote about this last month in The New York Times, Muslims are stuck, because from a religious point of view, we are actually empathetic with Christians, right. Take a religion seriously, follow the prophets, traditional values, you know, we’ll let LGBT do what they do but if you ask them whether or not LGBT marriage—gay marriage is a sin, most will say yes—abortion, you do what you have to do, but if you ask me if it’s sin, we’ll say yes.
We’re actually aligned with you. Oh, guess what? You don’t want us. Okay, let’s go to the left. Left is with us, we’re progressive on healthcare, on affordable wages, on welfare programs, yes. But because of the polarization, the civilizational test, or if you will, the civilizational capacity for my inclusion is whether or not you believe in God or don’t believe in God. So, why do you believe in God, and why do you believe in a text, and why do you believe in a prophet? In order to be seen as liberal and left, you have to be what? Secular. And you have to abandon these outdated values.
So, Muslims are almost stuck in the middle, where we’re like the unwanted stepchild, who kind of just wants in, and wants to bring in our falafel and halal meat to the barbeque, but the Christians don’t want us, even though they’re for religious liberties, but not for our religious liberties. And the left kind of wants us, but doesn’t want us if we’re too Muslim-y. So, where do we fit in? And it’s an interesting paradox right now of where do we belong, and whether or not—the last thing I’ll say is a lot of Muslims are now really deciding this, is the Democrats can’t take our vote for granted, just because we’re the outlier, and being used and abused by the right. And the right can’t take our vote for granted just because they’re going to use family values and God. You have to earn it.
Quinn: Okay, that brings me to what role should religion play in politics, and we were talking in the green room about how there used to be a time when Jimmy Carter and Bill Clinton were basically carrying bibles around and talking about it. And then it sort of—George Bush Sr. didn’t talk about it, and the George W. did, and then John Kerry didn’t, and now it seems that Donald Trump was basically appealing to the evangelicals, which I still don’t understand, Russell, and maybe you can explain that to me. And—when it seems to me that his religion, if he has any, which I don’t know what it is, except perhaps the prosperity gospel.
M: Tell us how you really feel, Sal [ph].
F: No, no.
M: That’s a real thing. It’s a real thing.
Quinn: That’s a real thing, no. And Paula White was the one who gave the invocation at his inauguration, and she’s the queen of prosperity gospel. But I mean, should religion play a role in politics? Does it, and if so, why? Or if not, why not?
Moore: Well, I think most of the evangelicals who supported Donald Trump weren’t’ doing so because they received him as a religious figure, or as a religious mascot. It’s because they were terrified of what would happen with four years of a Hillary Clinton presidency after they’d seen things such as Hosanna-Tabor decision about whether or not churches should be able to hire their own ministers. And the solicitor general of the Obama administration arguing against that. Nine to nothing Supreme Court decision.
You have the solicitor general of the Obama administration suggesting that maybe tax exemption could be taken away from Christian schools that hold the Christian beliefs about marriage. So, there was a great deal of concern about what could possibly happen, and so I think a lot of the people who supported Donald Trump did so the way a friend of mine did, when he said, “I’m not voting for one person, I’m voting for hundreds of people, and I don’t know necessarily what’s going to happen in this presidency, but I know what’s going to happen in a Hillary Clinton presidency, in terms of Supreme Court nominations and judicial nominations, and I don’t want that.”
I think that was the mindset that is there for a lot of people. And so, beyond that, I really think for me, I’m not looking for a political leader who is using religion as a way to manipulate the masses, and I think that’s a temptation for politicians, is to take religion and to use it as a—almost a focus group testing idea. I think that ultimately evacuates religion of its meaning, and so I don’t necessarily want a political leader to be resonant with me in terms of all of my beliefs. What I do want is a political leader who is able to respect the fact that many of us have different beliefs in this society, and that we have the liberty and freedom to do that.
So, the Baptists were able to make an alliance with Thomas Jefferson, even though they would never allow Thomas Jefferson to teach Sunday school in any of our churches, because they said, “He doesn’t get who Jesus is, but he gets what religious freedom is.”
Prothero: I think a big part of the allure, it gets a little confused because we associate a culture warrior like Trump with the abortion questions or the homosexuality question, which is where the culture wars have been for the last couple decades. But in a way, he’s returning us to the traditional culture war question, which as I read it, in my work on the history of the culture wars, really has to do with the kind of inclusion/exclusion paradigm.
So, when you apply that to the religion space, it’s is this a Christian country? Or is this a diverse, pluralistically, multi-religious society? And I think that on that question, Trump is clear that this is a Christian nation, whether or not he fits the bill. This is a Christian nation, where people like my friend Wajahad [ph] here are, in some sense, foreigners to that national project. And so, when you have in our past the exclusion voice saying, “Catholics are unamerican; Mormons are unamerican; Muslims are unamerican,” for the same three reasons, because they are not properly Christian, because they are immoral, because they are threats to the republic, because they’re going to vote the way their imam tells them to vote, or their pope tells them to vote, or their husband tells them to vote, with a husband who has 12 wives and 13 votes in Mormonism.
So, I think that, to me, that is an explainer, not only of Trumpism, and its success, but also of our contemporary impasse, that that’s a very old debate we’re having. Is this a Christian nation, or is it not? And the winners in this election were those who said that it isn’t—I mean, that it is a Christian nation.
Dionne: Go ahead.
Ali: If religion is used as a sword to privilege and entrench a majoritarian rule at the expense of the rights and dignities and freedoms of the minorities, then it will be deeply problematic for the American project, moving forward. And based exactly on what Stephen said, I think that encapsulates the existential fear and crisis of many Americans, that the ascent or even the existence of Muslims, or the hijabs there in the audience is somehow coming at the expense of my being, security, and privilege.
And America is synonymous with white and Christian, and oh my God, the rest of these miscellaneous are rising. My privilege is being lost; they’re taking away my seat at the table; zero-sum game. And at that point, if religion is used as a sword and not a shield, that’s when we really need to step up for religious liberties and freedoms for all.
Dionne: And that’s where I want to ask Russell more, because as you probably know, I admired your witness during this campaign. We don’t agree on everything, but you sort of warned a group of Baptist pastors, for example, if you lose an election, you can live to fight another day and move on. But if you lose an election while giving up your very soul, then you have really lost it all. And you were very critical of Donald Trump, and just one piece of data that I think should be troubling within the evangelical community, and I know you remember this.
PRI asked a survey question, do you think an elected official who commits an immoral act in their private life can still behave ethically and fulfill their duties in public or professional life? Most groups change a little, but white evangelicals change radically. It used to be only 30% said a politician who committed an immoral act could fulfill his public duties. In 2016, 72% said yes, meaning that white evangelicals were essentially conforming their view on a question to their preference in a presidential election, not the other way around. How do you view the future of your movement after this struggle that you’ve been in, and after the struggle of this campaign?
Moore: Well, what I was concerned about and worried about was redefining the gospel in order to include politicians under the rubric of that gospel. That’s the concern I’ve had for 25 years, as it applies to numerous politicians and numerous parties. What I think was happening here, for most people who are out there in the pews, is a sense of I have these two candidates. I have to go in one of these two directions, and I’m going to choose the one that I think will do the least harm to the country, or to religious liberty, and so forth.
So, I really think when you get to the grassroots level, you don’t have people who are saying, “Let’s just redefine what our religion is in order to include politicians.” I think you have people who said, “These are the options that we have in front of us.”
Dionne: But that was a pretty radical redefinition of a moral view.
Moore: Yes. And I think that that tells us something about the sort of polarization that we have in American life right now, where you just don’t have, as Stephen mentioned a few minutes ago, people tend to say, “What’s my tribe? Who are the people who are with me? And I’m going to line up with the 100%.” So, you don’t have very many progressives who will say, “Look, I disagree with conservative evangelicals, but let’s defend their ability to believe the things that they believe.” And you don’t have many conservative evangelicals who will say, “I think Islam is wrong, and I think that Muslims should come to faith in Jesus Christ, but I don’t want a government powerful enough to zone their mosques out of existence.”
Moore: But that’s what we need.
Ali: We believe in Jesus by the way.
Quinn: We’re almost out of time, so I just want to ask one quick question. Do we feel optimistic about the idea of religious liberty in this country, as we’re almost out of time?
Ali: I have two babies. I have to feel optimistic. I say that very seriously. I’ve got a three-year old, about to turn three, and I have a one-year old about to turn one. Brown-skinned with ethnic multi-syllable names, Nusaib [ph] and Ibrahim [ph], and I cannot afford apathy or to be jaded, or to be cynical, or to stand on the sidelines and just throw it all in. I think the faith commands optimism. There’s a great hadith saying of the prophet Muhammed, which my friend Willow Wilson [ph] reminded me of, that says even if you see the day of judgment coming, plant a seed. I’ll repeat that: even if you see a day of judgment coming, plant a seed.
And for many ethnics and minorities, one of the horsemen looks like a man with orange skin and tiny fingers, but none the less, you—sorry. Too soon? My bad. But the final thing is, you invest, and you fight not only for the American dream, but you fight for American freedoms. And the irony is, Muslims living in America exercising their First Amendment freedoms is what’s making Islam and Muslims and America great again. I say that without hyperbole, and I go back to my first story.
And so, that’s how you fight. You get up every day, you exercise your religious freedoms, you have the audacity of equality, you don’t ask for double standards, you ask for equal standards, and you take the Constitution to the hilt, and you use it as a shield to cover and protect everyone—Christians, Pagans, and Muslims.
Moore: I’m a short-term pessimist, a long-term optimist. Americans have always been able to figure out how to live together with different religious views, and I think we’ll figure this out, too.
Quinn: To you.
Prothero: I mean, one conclusion of my research on the culture wars has been that even though many of them are started on the right, they’re typically won on the left, with more and more inclusion. We now see Catholics can be Americans, Mormons can be Americans, and though we are in the midst of a culture war about Muslims, I think we will conclude the same, and we’ll—that Muslims can be good Americans, even you.
Ali: Even me. There’s hope. [LAUGHTER]
Dionne: And I’m with him, actually. I’m with you, Russell; I think short term, there’s a struggle; long-term religious liberty keeps winning, and that’s a good thing.
Quinn: And I agree with that. And I’m really sorry we have to end this, because we could go on a lot longer. This is a great panel. Thank you all for being here, and I want to welcome next our columnist Chuck Lane, who will be in conversation with the one and only Ann Coulter. So, thank you very much.
Free Speech: On Offense:
Lane: Well, hello. I couldn’t think of whether to say good evening or something like that, but I’ll just say hello. I’m Chuck Lane. I’m a columnist and editorial writer for The Post, and I’ll be taking you through the last half-hour or so of today’s events. Together with our two panelists, I’m tempted to say they need no introduction, but I’ll give them one, anyway. To my left, not ideologically, but in terms of—
Coulter: You never know.
Lane: Where’s she sitting is Ann Coulter, conservative commentator, author, and I think it’s fair to say, provocateur. Or, let’s just put it this way, someone who makes her living off free speech. And to—even farther to the left, again, not necessarily ideologically, is Nadine Strossen, who I would say has made her living defending free speech. She’s formerly the president of the American Civil Liberties Union, and was the first female to hold that position. And remains a professor of law at the New York Law School, at a small town to the north of here. So, welcome to both of these pretty interesting guests, and I think we’ll just jump right in.
Our subject is, I think, the issues raised by free speech that’s provocative, free speech that’s offensive, speech that’s right up at the edge of what we do protect or might protect, or maybe shouldn’t protect. And I thought I would ask, starting with you, Ann, I mean, something I’ve often wondered observing your career, is do you think civility is a good thing? I’m quite serious. Do you—
Coulter: I think those are fighting words right there.
Lane: Yeah, do you think there’s an independent value in the kind of—in muting one’s opinions, from time to time, in deference to what other people might consider standards or sensitivities or so forth? That’s not to say that you would necessarily trim or control the substance, but I’m very curious, because obviously you’re someone who is forever being criticized for lacking civility. What’s your answer to that question?
Coulter: I think that’s mostly said by people who don’t read me and don’t listen to me. I don’t think I do every breach any civility terms, and what I’ve seen in the last week on television about, oh, how we have to calm our rhetoric or it will set off a Bernie Sanders supporter, I mean, this nonsense about how lion’s head, or crooked Hillary—oh, it’s fighting words. No, I would say if you’re really looking at something that’s going to set people off, calling Trump and Trump supporters and conservatives akin to Hitler, Nazis, racists, white supremacists, that’s not only uncivil, it’s quite dehumanizing.
All of the things that I get accused of saying, A, I didn’t say at all, or B, it was part of a joke, and come on, give me a break. It is not uncivil, so yeah, I mean, I don’t think my career shows much incivility, but I’ll step out and say for some people—I mean, Milo—not Milo, by the way. You mispronounced his name—is very funny, and he’s making serious points. He’s a lot more outrageous than I am, but some—a lot of the headlines that Breitbart was attacked for, for example, they were almost all Milo opinions, or rather, articles—almost all of them.
And okay, it was an outrageous title, but then you read the article, and he was making serious points. And what? Are we supposed to—we have to write like David Hackett Souter to be civil? We can’t write like Scalia?
Lane: Nadine, you were actually good friends with the late Justice Scalia. I’m not sure you would put him quite in the same category as Milo Yiannopoulos.
Strossen: Can I say something about civility, because—
Lane: I want you to say something about civility, but can I just ask it to you this way? You—as I said before, you’ve done a lot of defending of people who have fought to be uncivil.
Strossen: Yeah, that’s true.
Lane: And I’m sure there were times when the folks you were defending, or the ACLU was defending, really you kind of had a little qualm about it. And so, based on that experience, how do you think about the question?
Strossen: Well, I actually—I hesitate to say never, but so far, and I challenge somebody to break the record, have never had a qualm about defending an expression, an opinion, verbiage, because to me, it is never the particular speaker that’s at issue; it’s never the particular word or idea that’s at issue. I always am aware of the underlying principle, because I know—I know actual cases where for every person who says X, I am in effect defending the right of somebody else in another part of the country to say not X.
Now, in terms of civility, I have to laugh because when I was elected ACLU president, the pull quote on my biography in The New York Times was, “I want to emphasize the American in American Civil Liberties Union.” And this was a time when we were accused of being unpatriotic for defending people accused of terrorism and all kinds of other nasty things. And my husband, who had attended many ACLU meetings where we are shouting and haranguing and harassing, looked at that, and he said, “I wish you would defend the Civil in the American Civil Liberties Union.”
Lane: Well, you know, it’s—you guys are, both of you, I think, in luck, because just yesterday, the Supreme Court, in the course of defending the right of an Asian-American rock band to use a common slur of Asian Americans as its own name of its own band as a trademark, issued some pretty strong language in favor of free speech, generally. And I’ll just give you a brief, brief quote. “The proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.” That was the opinion by Justice Alito. And then Justice Kennedy sort of added, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.” And Nadine, I want to ask you, I mean, those are very common arguments offered for this sort of utility of free speech. Is it—are those—is that really true?
Strossen: It is actually really true.
Lane: Or are we kind of in a race to the bottom, as some people think?
Strossen: When, you know, I think each one of us is offended by something we disagree with, as has been said throughout the day. So, by definition, anybody who is challenging the status quo, anybody who is protesting things as they are, anybody who is advocating law reform, social justice reform throughout history, has been accused of offensive speech, and dangerous speech. You know, go back and look at the abolitionists who were censored; go back and look at the civil rights demonstrators who were censored.
Why didn’t Martin Luther King write his famous letter from a Birmingham jail? And you look at the laws that were raised against him and other civil rights protestors; they were accused of offending the community values, they were accused of endangering the welfare of the republic. Things as they are, that was certainly true for the suffragist movement, for the women’s rights movement, the reproductive freedom movement, Margaret Sanger spent a lot of time in prison. Obviously true for the LGBT rights movement; they are advocating their sexuality. Even coming out of the closet and self-identifying was seen as offensive.
So, as Justice John Marshall Harlan—I’m honored to have a chaired professorship named after him, and he was a great First Amendment justice, a conservative Republican, by the way. He said, “One man’s vulgarity is another man’s lyric.” And I would say, one person’s offensive speech is somebody else’s challenging the status quo, rocking the boat speech.
Lane: So, Ann, picking up on that, do you feel extra validated in the sense that Nadine just suggested, when people react the way they do sometimes to the things you say? Does that give you the sense like, wow, I must really be on the right track?
Coulter: No, I think the college campuses have gone insane, and it is so far outside the realm of normal discourse. I mean, when you have Bill Maher, Elizabeth Warren, the ACLU, I assume, Barack Obama reaching out to denounce Berkeley for shutting down my speech, I mean, my shocking, challenging the status quo speech was essentially going to be the laws on the books on immigration; we should enforce them. And that is apparently worthy of riots.
I do think we have a big problem. I mean, the law is quite good. I would also say about this slant’s decision, and this is the Republican position on not just free speech but civil rights law, I do think African Americans are in a special category. Rehnquist always said that. I think once you say, “You can’t say the n-word,” and I don’t think white people should say the n-word; I’m talking about civility now, not the law. I think that is a special, separate category. You have the history of slavery, of Jim Crow, that’s its own category. But do not start saying to me illegal alien is the same as the n-word. Slant is the same as the n-word. No, nothing is the same as the n-word, and I just think it confuses the issue when we start pretending everything is the n-word. That is how people shut down speech. And I think as to go back to your first question, as a matter of civility, not as a matter of law—
Strossen: And there are also two different types of expression that you’re talking about, Ann. One is a face to face insult, or insulting people by using a derogatory term. The other is an idea that people dislike, and that’s a whole different kettle of fish, right. And one of the things that really disturbs me is how the h-word—hate, which is being overused, and abused, we are hearing the term hate-speech and even hate-crime for policy positions that people dislike.
Lane: Well, sometimes it’s more than a mere policy.
Strossen: No, but very often, seriously, people who take certain positions on immigration, who take certain positions on gay marriage, who take certain positions on abortion, even on voting, and I just wrote a book about this, and there was actually a professor somewhere in California, not Berkeley, who actually said that voting for Trump was a hate crime. And she took pains to say, “I meant that literally.” And there are just—there are many examples like that, and what scares me is that it’s not just rhetoric, right.
There are consequences, because if something is a crime, and somebody else said the whole election was terrorism, well, we punish terrorists. We outlaw them, and I think that is the analogy that’s being made, is that there are certain ideas that are considered tantamount to violence, and therefore, just as we outlaw and punish violence, we have to outlaw and punish those ideas, or take vigilante justice—
Coulter: Right, or shoot them.
Strossen: Into our own hands.
Lane: Well, so, Ann, have you ever gone too far? I mean that seriously. Have you ever thought back, and you don’t have to say specifically, but have you ever thought back on something you’ve said—
Coulter: I don’t think so. I don’t think so. I mean, all of the things that I’m—I mean, look at the things that get lifted up, and you said, blah blah blah. I run through them, and for a long time, there was a list going around, and finally, John Cloud wrote the Time Magazine cover story on me, and he went through them all, and I said, “Yeah, I didn’t say that. I didn’t say that.” And he ordered all the original tapes from TV to see that I didn’t say any of that. They were all lies.
Since then, it’s been jokes that as if they were translated into German by a computer, then retranslated through Swedish, and finally it comes out as English. You know, it bears no resemblance. If you look at what I actually said, oh, come on. Give me a break, I’m making a point, and often making a point with a joke, but since those are the ones that are raised to me, I can’t think of any that I wouldn’t have said. I’ll defend any of them that you can remember right now, and tell you what the real thing was I said.
Strossen: And humor is a big part of this, and satire. And so, when you talk about offense and civility, one thing that really does go by the wayside, if we’re so careful with our words, is humor and satire. We have a lot of people who are taking everything extremely literally. I mean—
Lane: Well, let me ask you—
Strossen: I was going to give an example, and then I self-censored, so.
Lane: And I’m so glad you did, because if you felt like censoring it, it must have really been bad.
Strossen: Everybody is titillated now.
Lane: Just today, and on this humor thing, just today, you tweeted, Ann—it may have been yesterday, apropos of this case in Fairfax County, Virginia, where a young Muslim woman was killed, and the police are investigating it as a case of road rage, and apparently the—a person of interest in the case may have been here illegally.
Lane: He was. Your tweet was, when dreamers kill Muslims, what do the media say about that, or something like that.
Coulter: Does the media report it?
Lane: Does the media report it? Now, of course, we don’t know that he—
Coulter: A tree falls in the forest.
Lane: That he’s necessarily a dreamer, though he might be here illegal. And my question to you is, how much of that is a joke? How much of that is satire? How much of that is deliberate provocation? Or in your view, how much of it is just like a statement of fact? Because it isn’t really established that he’s a dreamer yet, and so my question to you is, is that something you’ve said that we should take kind of as a joke?
Coulter: No, I would say that’s dead-on serious. I’d like to know how the The Washington Post is reporting that. I would like to know if that’s going to get big coverage, because I promise you, if it was a white male Trump voter, oh, everybody in this audience would have heard about it. They’ve moved the Russia investigation aside for it, but ha-ha, it’s an illegal 17-year old from El Salvador.
Lane: So, how do—
Coulter: So, that was a serious question. Now, I will admit, and I’ve let this practice go, when I tweet out my dreamer of the week, like the one who raped the woman in the Hamptons last week, dreamer of the week is a joke.
Lane: And I guess my question is, Ann, part of the problem I think your audience has is maybe you should put like a little asterisk or something that say, this one is a joke.
Lane: Because—well, because—
Coulter: It makes the point, and makes the point. I don’t care if it gives you a little smile or not.
Lane: The reason I ask that is because after the fact, you can always say it was just a joke.
Coulter: I don’t, though. I mean, unless it’s a really obvious joke, I mean, most—a lot of these we’re taking from CPAC, and you know, people can dispute humor, but when I have 7,000 people in the room and they all start laughing, that’s funny, Chuck. Those are funny. Other than that dreamer of the week, I don’t care if you get a little smile. I want it to advertise a story that I’m pretty sure The Washington Post isn’t covering.
Lane: Now, Nadine, I want to ask you from your perspective, as a civil libertarian, as the quotes I read from the Supreme Court decision suggest, there’s a certain sort of—there’s a way in which we, I think, kind of have grown accustomed to justifying a very strong pro-free speech position, in utilitarian terms. It works. It improves debate, and so on. Suppose that weren’t true. Suppose it didn’t improve debate. Would you still be for it? Is this an end in itself?
Strossen: I couldn’t say it better than Justice Brandeis said at the beginning of the—early in the 20th century, and I’m only going to paraphrase him, but he basically said that we revere freedom of speech, both as an end in and of itself, and for its instrumental value. And I agree with both of those points. In terms of its inherent value, it’s inherently important to each of us as an individual to be able to express ourselves as an inherent aspect of autonomy.
Justice Kennedy said that freedom of speech is the beginning of freedom of thought, and that’s got to be the beginning of individual liberty and autonomy, and self-definition. It’s also inherently important in a democratic republic, such as we have. How can we, the people, exercise our power as the governors, and hold accountable to us those we elect to represent and serve us, unless we have complete, robust freedom of speech. And that includes being able to say hateful and spiteful and ornery things about politicians, and I don’t think that we need to have an asterisk saying, “Oh, this is said with a wink, or this is said seriously.”
There is also an instrumental value, and I fully agree with Justice Douglas, who said for many other justices, in defending the right of a fascist who was being attacked by Antifa, which we’re seeing again, including in Berkeley, and he was extremely to the left himself, so these were people who were completely against his own political ideology. But he said, “Free speech may best serve its high purpose when it is outrageous, and when it arouses people to anger.” Because that may motivate them; it may galvanize them to either change the status quo, to argue against those they disagree with, but it’s part of being an individual, and it’s part of being a member of a democratic republic.
Lane: Well, you know, Ann, I want to ask you the following: there are some democratic countries where that last sentence of Nadine’s is not held to be true.
Lane: So, a very good example with which I’m passing familiar is Germany, where they had very strict rules banning the display of Nazi symbols. They have rules that put under surveillance organizations that are thought to be anti-democratic in nature, and so on, and so on. And those rules, I think, were actually installed somewhat with the encouragement of the United States government, after World War II, in part—not in part, entirely because their interpretation of their history was that when you allowed utter freedom to the worst kinds of demagogues, you get a disaster. So, do you think Germany is right to have those laws, Ann?
Coulter: It’s not just Germany; it’s most of western Europe, including England, that fought Hitler, which seems kind of crazy to me. I mean, for America, I’m glad we have a First Amendment. It’s even crazier than that; there was a guy in England who was recently charged not for public drunkenness. He came out—a college student, came out of a bar, saw a cop on a horse, and said, “Excuse me, sir. Do you know your horse is gay?” And he was charged with committing a hate crime for saying that.
Lane: I asked you about Germany, and I have a reason for that, so I want your—
Coulter: Well, okay, but England has the same laws. Most of western Europe does. We don’t and I’m glad we don’t, but if I were in one of those countries that does not have a First Amendment, I’m wondering how long are we going to—will we ever get over reliving the glories of the second World War? How about applying that to Muslim extremist speech today, when you have in Paris and London these attacks by extremists Muslims. I mean, if they have no problem with saying you can’t deny the Holocaust, I’m really not worried about their being another Holocaust.
I am worried about another terrorist attack that we seem to be getting every three weeks. But weirdly, they don’t want to apply that.
Lane: Well, at least in Germany, as far as I understand recent history, they have applied the anti-Holocaust denial and other rules to certain preachers and—
Coulter: No, I want the—that’s not it. I want social media, where the praising ISIS might be a little tip-off.
Strossen: But so-called extremists and anti-terrorist speech is also over-severely punished in those countries, as well. I want to answer the question about Germany—
Coulter: Not enough.
Strossen: And Holocaust—oh, so you—there’s some free speech you don’t protect. We’ll get to that.
Coulter: No, I’m saying in countries, if you’re going to say you can’t deny the Holocaust, how about you can’t fly a ISIS flag.
Strossen: You can’t have a double standard. And I agree. Once you start to make exceptions about certain messages are verboten, to use the German examples, then it’s very—you’re going down a slippery slope, because you know, you and I and everybody in the audience is going to have the speech that we consider to be the most dangerous. But there is so much misunderstanding about what went on in the Weimar republic leading up to Nazism.
I have to tell you, I am the daughter of a Holocaust survivor. The man who headed the ACLU during the infamous, or famous Skokie case, whichever way you look at it, which is kind of—epitomizes the American viewpoint that we will defend to the death your right to say even ideas that are antithetical. Certainly, Nazi speech was antithetical to the ACLU. Aryeh Neier, who was the executive director of the ACLU at the time was himself a Holocaust survivor. His entire family except for his immediate family was wiped out, and he has said that if I believed I hate the Nazis more than I love free speech, more than I hate censorship; if I believed that censoring Nazi hate speech would have defeated Nazism, I would be all in favor of it.
And he then goes through an instrumental strategic analysis. I mean, as somebody else made the point earlier today, Weimar Germany, when Hitler rose to power, had hate speech laws and enforced them. The leading Jewish organizations of the day said the laws were enforced fairly, leading Nazis and publishers of racist, anti-Semitic publications were repeatedly, dozens of times, prosecuted and put in prison. And guess what? That became a big platform for them to propagate their ideas. Now, the big difference there, and what happened in this country, is that actual racist, anti-Semitic, political violence was not punished.
So, the Nazis could get away with murder, literally. They beat up and assaulted and killed Jews and other minorities and their opponents. And the analogy would have been as if in this country, we didn’t prosecute those who were committing murder and violence against civil rights demonstrators. So, there is, to me, an absolute distinction between outlawing and punishing violent conduct, including the kind of violent conduct we saw in Berkeley, quite frankly, because it’s to the same effect—stopping people from speaking freely, and debating freely.
Lane: Well, I should have known I would get an extremely erudite answer from you on that, but I want to press the point in a slightly different way, which is I think in our time, we speak about the First Amendment, and its values, and the very expansive of it that’s reflected in the recent Supreme Court doctrine that we’re all familiar with. We kind of take that for granted, without really reflecting on how historically relatively new that is. That is to say, that in, you know, within the relatively recent past in this country, there was a lot of censorship. There was a lot of official repression of speech, and on the other side, there was a lot of official racism, and official oppression of minority groups that was absolutely written into the law, and the victims of that were not protected.
In other words, our history is not a sort of clean on either side of this ledger as we often like to think, and Ann, I think that’s a good question for you, because I think an assumption you have, it seems to me, listening to you, is that this has always been the American way, right? That this very, very expansive, anything goes kind of view of free speech. And doesn’t it give you some pause to reflect on how in the past, actually, the view you’re upholding probably wasn’t actually upheld in pure of a form as it once was?
Coulter: No, in fact, I probably would not be as much of an extreme free speech supporter as the ACLU, in some ways. In some ways, I might be more of a free speech supporter.
Strossen: I’d like to hear those.
Lane: I’m moderating this panel.
Strossen: I’m sorry.
Lane: But I would, too.
Coulter: I think you guys support of the abortion clinic protest—
Strossen: Yes, oh, usually we do.
Coulter: Ann wins.
Strossen: No, no. But that’s to say there’s debate and free speech within an organization.
Lane: Okay, answer the question. We only have four minutes.
Coulter: I think there are others. I mean, there are a few ways I would do things differently. There is one—I think the obvious one, any conservative will say, “I am against incorporating all of the amendments, except the ones that do not place limits on Congress, but oh, well, that ship has sailed.” But I would like to have 50 little experiments to see, for example, you know, what things can be—what limits you can have, and—while still maintaining civility.
But, oh, well, I lost the incorporation debate. The other place where I think I would be less free speech protecting than the ACLU and a lot of free speech purists is—and I forget who this, I used to be a lawyer, but I haven’t been for a long time, and I haven’t read a Supreme Court case in a long time. I think it was Bork [ph], you will correct me, but I do think it’s true that there are different types of free speech. There is core free speech, and as you get farther and farther away from the core, you may have less protection, and the place where I would have the least protection are things that aren’t speech.
They’re expressive acts, like a parade, like the Nazis marching in Skokie. I mean, if it’s a rule that’s going to be applied generally or—I mean, there, I would be a lot more open to restrictions when there’s a good argument on the other side, than when it is someone speaking, than when it is someone writing, and particularly when it is someone speaking and writing on public policy issues. I think that is at the core, and there ought to be—or we ought to consider more restrictions the more we get to, you know, a pile of poop being modern art.
Strossen: Well, you know, what’s so interesting is that the civil rights movement really flourished because—I mean, for many reasons, but a key component was Supreme Court decisions that upheld not only equal rights, but freedom of speech. And it’s very striking, if you look at the classic landmark free speech opinions, including those which upheld the right to burn flags, and demonstrate, and kneel in, and sit in, and pray in. And of course, the famous New York Times vs. Sullivan libel case, all of these cases arose from the civil rights movement.
And why was that true? It was because their messages were the ones that were being censored, because they were seen as offensive and dangerous and violent. And before that, in the McCarthy era and the Cold War era, because communism was so feared and hated, that’s when we got these terrible free speech decisions, upholding the government’s power to censor. It happened during the red scare, as well, and in fact, Harry Calvin, a great professor at the University of Chicago, accusing the justices maybe of being a little bit results-oriented, said, “The blacks won back for us the free speech rights that the reds lost for us.” That the court was so sympathetic to civil rights movement, and recognized that the lifeblood of any protest movement, including that one, was freedom of speech. So, the two became mutually reinforcing as they advanced to far beyond where they had been earlier.
Lane: You know, Nadine, I’m going to put this to you, and well, I’m just going to go for it. You know, I totally get that the same First Amendment protects Ann and Milo and anybody else you want to name—
Coulter: Martin Luther King.
Lane: And Martin Luther King—the same first—
Lane: But do we want to say—do we want to conclude from that that there’s a moral equivalence between Ann and Martin Luther King? Or is it just the issue that we’re talking about of the constitutional rights that they both—
Strossen: Yeah, you know, and this came up in an earlier panel. I believe very strongly that those of us who defend a broad view of freedom of speech have a moral responsibility to condemn, criticize, denounce, refute ideas that we disagree with, even though we are defending your right to express them. In fact, the ACLU had a policy going back to its founding when we were defending extremists and other anti-civil libertarian [ph] speakers. In the very same policy, it said, “And you have a responsibility to go out there and counter-demonstrate against them after you’ve defended their right to demonstrate.”
And I think what’s so interesting about American society is even though we don’t have the hate speech laws, which are censoring so much mainstream political speech, or anything that is not liked by the power elite, that goes against the prevailing orthodoxy—very scary examples. In fact, in the United States, there is—and you may not like this, but as a factual matter, civil society is censuring speech, not censoring it. But condemning it, denouncing it, exercising so much social pressure that it, you know, a lot doesn’t get said, or if it gets said, it gets denounced. And that, you know, you may feel that there’s too much of a chilling effect, but I think we should not kid ourselves that just because the government isn’t suppressing speech that you can get away with saying anything here.
Coulter: I agree.
Lane: All right, so, we’re almost out of time, but I want to ask my final question to you, Ann, which is something like this. It seems like a lot of what really bothers you, and a lot of what gives a lot of energy to the things you say, out on the trail, is the perceived double standard that you feel like things you say get condemned when the equivalent is not condemned by all right-thinking people. So, if the people who are against you, so to speak, were smart, how would they be responding to you? What would be the most effective way for them to counter what you’re doing?
Coulter: Well, I’m not sure—
Lane: And go ahead and give it away.
Coulter: Tell an audience of Washington Post people the most effective way to counter me, but—well.
Lane: Because Nadine’s assumption is more speech.
Strossen: And that trying to shut you down is just going to amplify your audience.
Lane: Right, let’s assume they’re not going to shut you down.
Coulter: No, I got to tell you, I think you guys are doing the exact right thing by totally ignoring me and pretending I don’t exist, and trying to prevent me from giving college speeches. I think that’s the right approach. And one final thing, I don’t think you’re the moral equivalent of Martin Luther King, either.
Lane: I knew that going in. Well, thank you—
Coulter: I don’t know why that was set up, but—
Lane: Thank you both very much for a pretty good panel, and thank you to the audience for sitting politely and indulging us with great civility.
Strossen: For sitting civilly.
Lane: And again, I guess that’s the end for today, Marty?
Strossen: That’s all, folks?
Lane: Oh, there’s a little more to come. They’re going to come with a giant cane, like night at the Apollo and take us—
Coulter: No audience questions.
Strossen: Should we get up?
Lane: There was nothing on Twitter. I can’t believe it. Okay, well, thank you very much.
Strossen: Thank you.