On Tuesday, June 19, The Washington Post brought together journalists, technology experts, scholars and other thought leaders to explore the challenges and opportunities created by robust free speech guarantees in a diverse and modern democracy. (Kristoffer Tripplaar/Kristoffer Tripplaar)

Opening Remarks:

Coratti:            Hello, everyone.  I know some people are still coming in.  We will get seats for everybody.  My name is Kris Coratti.  I am vice president of communications and events at The Washington Post.  Thank you all for joining us on this very rainy afternoon for our second annual Free to State event.  The intention for this program is to explore more than just the idea of the First Amendment; we want to look at its practical applications, and the questions it raises about how we access information, how we communicate with each other, and its impacts on the overall health of our democracy.

Today our speakers will be tackling some very important First Amendment issues: the end of net neutrality rules; the debate over free expression on college campuses; the evolving definition of political correctness; and the boundaries of political satire, to name a few.

Before we begin, I would like to thank our presenting sponsor, the John S. and James L. Knight Foundation, as well as our supporting sponsors, the Charles Koch Foundation, the Freedom Forum Institute, and the University of Virginia, for helping make this event possible.

The idea for hosting an event centered on the First Amendment came from a place where a lot of great ideas originate at The Washington Post, our Executive Editor, Marty Baron.  [APPLAUSE]

Baron:             Thank you, Kris, that was very nice.  And thank you all for coming.  We are, I am sure, headed into a lively conversation about an issue that always seems to be at the boiling point.  Certainly today, free expression is on the front burner, with the gas turned up to high.  As a society, we argue for the value of free expression, even as we worry about its risks.  Big questions are with us always, it seems.

When does the demand for civility and tolerance become suppression of speech?  What do we really mean by hate speech?  What are we really saying when we accuse others of being politically correct?  If we prohibit hurtful speech, are we condoning censorship?

And then there is the inescapable role of today’s technology.  Is it promoting the sort of free expression our nation’s founders envisioned, or is it allowing the right of free expression to serve as a cover for the dissemination of deliberate falsehoods and crackpot conspiracy theories, with the aim of manipulating the electorate?

Arguing on behalf of the First Amendment, James Madison famously said, “The right of freely examining public characters and measures and the free communication amount the people has ever been justly deemed the only effectual guardian of every other right.”  And yet it’s worth remembering that this country’s full embrace of the First Amendment, and, in fact, its full embrace of what we came to call the Bill of Rights, is a relatively recent phenomenon, which may explain why we’re still arguing about it, trying to figure out what it means and how we feel about it.

It did not take long after the first ten amendments to the Constitution were ratified on December 15, 1791, for Congress to demonstrate its disregard and disrespect for free expression.  In 1978, it passed the Alien and Sedition Act, which made criticizing the president or congress or other high government officials a crime in many instances.  As First Amendment scholar Floyd Abrams has written, that repressive law, adopted by the John Adams administration, led to the jailing of 20 newspaper editors and was the single greatest frontal attack on freedom of speech in the nation’s history.

There have been many other attacks, most notably, the Sedition and Espionage Acts under President Woodrow Wilson, and the McCarthy era with its militia search for enemies.  In fact, the entire set of ten amendments we now call the Bill of Rights did not make a strong impression on Americans for decades.  Indiana University law professor Gerard Magliocca notes in his recent book, The Heart of the Constitution, that while the United States joyfully celebrated the centennials of the Declaration of Independence and the Constitution, it did nothing to mark 100 years of the Bill of Rights.

Not until 1941, on the 150th anniversary of those rights, during the presidency of Franklin Delano Roosevelt, and in the first days of war with Imperial Japan and Nazi Germany, did this country celebrate what the president called a Declaration of Human Rights, which has influenced the thinking of all mankind.

Finally and thankfully, we began to see the Bill of Rights, including and perhaps especially the First Amendment, as central to what makes the United States genuinely exceptional.  Witnessing the horror of the Third Reich, this country came to truly value its foundational principle of free expression for all, and I must add, it came to expect the press that does its work with vigorous independence from government.  FDR once declared that representative democracy will never tolerate suppression of true news at the behest of government.

Supreme Court Justice Robert H. Jackson wrote in 1945, on behalf of the First Amendment, “Every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”  Two years earlier, in 1943, it was Jackson, with the nation at war and totalitarian regimes in mind, who wrote a ringing endorsement of free expression that helped frame how we understand it today.  “Those who begin coercive elimination of dissent,” he wrote, “soon find themselves exterminating dissenters.”  And he added, “The First Amendment of the Constitution was designed to avoid these ends by avoiding these beginnings.

Justice Jackson’s stirring words, in my view, serve as a perfect introduction to our conversation here today.  I look forward to some spirited free expression about free expression in the hours ahead, and I thank you again for coming.  [APPLAUSE.]

Free to State: The First Amendment and the law:

Marcus:           Hello.  Welcome.  I’m Ruth Marcus, deputy editorial page editor and columnist for The Washington Post.  Thank you all for being here.  We’re focusing today in how First Amendment issues are playing out on college campuses, in the courts, and as you saw, maybe even sometimes on the football field.  You can join the conversation in the room and online by tweeting questions using the hashtag #FreeToState.

Our guests include two advocates for free speech, Susan Herman, President of the American Civil Liberties Union, and Suzanne Nossel, Chief Executive of the nonprofit PEN American.  But we’re going to begin today with the third highest-ranking leader of the Justice Department, Acting Associate Attorney General Jesse Panuccio.  He oversees many things: the antitrust division, the civil division, the civil rights division, the environmental and natural resources division, and more.  So, thank you very much to all of you for coming.

General Panuccio, we are going to get, I promise you to all the deliciously interesting—not just about cakes on deliciousness—First Amendment issues, but I want to start with something else that is under your purview as the head of the overseer of the civil division, and that’s in the news today, which is the family separation policy that the administration has implemented.

There was a decision last week from actually a federal judge appointed by George W. Bush in a lawsuit brought by the American Civil Liberties Union challenging the family separation policy, and here is what the judge had to say: “These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child.  Such conduct if true, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.”  As the overseer of the civil division, it’s going to fall to you to defend the government’s policy in court.

What is the defense for the policy?  And are you comfortable defending it?

Panuccio:         So, thank you, first of all.  It’s a pleasure to be here; I appreciate The Washington Post and all the sponsors having us to talk about the First Amendment, which I know we’re going to get to.  But you have to ask.  That is a matter, as you say, that’s in active litigation, and two of the parties are on stage, so as is typical of something that we’re a party to in active litigation, still reviewing that decision and formulating briefs, I’m going to let our briefs do the talking on it and leave it there.

Marcus:           Well, are you comfortable defending the policy?

Panuccio:         Well, we will—we’re defending in court now and will continue to defend it, yes.

Marcus:           Right.  We will keep an eye on that, and meanwhile we’ll keep an eye on the First Amendment.  You just intervened, a kind of unusual but part of a series of interventions that the Justice Department has done involving litigation on campus free speech—not a normal issue for the Justice Department.  Tell us—the latest intervention involved the University of Michigan.  Tell us why of all the array of important legal issues in all the federal courts in the country, it makes sense for the Justice Department to devote its resources to this issue.

Panuccio:         Well, that’s a great question.  We’re doing many things at once, of course, but this is the First Amendment; it’s our first freedom in the Constitution, and you heard at the beginning there was an opening clip there, that speech from the Attorney General, where he said he thinks there is a crisis on the American campus of respect for First Amendment values, and you’ve seen many, many clips in the news of not only speakers getting shouted down, but instances with professors and students, and so he felt, and we all feel at the department, that not only our bully pulpit at the department to talk about First Amendment values, but in appropriate cases where we think a public state-run university has a policy or a practice that is not consistent with the First Amendment, to go into court and state that view.  And many times it’s important the civil rights division files statements of interest in many different kinds of cases dealing with civil rights.  The First Amendment is such a right, and so we think lending our voice to that matters quite a bit.

Marcus:           So, some people would look at your intervention and say, “Ah-ha, you’re concerned about free speech when it’s conservatives who are being shouted down.”  Give us your response to that.

Panuccio:         I reject that.

Marcus:           I’m so shocked.

Panuccio:         Some of these instances—I mean, look, let’s be honest about what’s going on, on campus.  Conservative voices typically are not a majority voice on campuses.  Some of these instances involve conservative voices, but not always.  I mean, if you look at the Michigan case, what we filed our statement of interest there is about a policy.  That policy applies to everybody, and that policy said your speech can be punished if it is offensive, and the way they define—or biased—and the way they said the most important indication of bias is how you feel, how the listener feels.

So, anyone—if it’s conservative speech and a liberal is offended, they might say, well that’s bias, or vice versa.  So, it is not true that these cases involve students or speakers of only one political stripe, and we’ll get involved in any case where we think the First Amendment is implicated and violated.

Marcus:           I know it’s not necessarily a First Amendment issue, because with the NFL it’s a private party that’s implementing its own rules about protests on football fields.  But, the president of the United States, who is a government official, has spoken out very vociferously against football players who either choose to kneel or choose to absent themselves as the NFL new policy will allow.

You said pretty recently there’s now this idea on college campuses that if you hear speech that’s offensive to you, you can’t deal with it in any other way than by shutting it down.  That’s not a very good lesson to be teaching, and it’s not the lesson of our First Amendment.  The president has said if the football players don’t like the pledge and don’t like the national anthem, maybe they should just leave the country.  Why is he sending—explain to us how he is sending a message to football players on their protests that’s consistent with the First Amendment.

Panuccio:         Well, let me try to address two parts of that.  So, college campuses, first of all, when we file these statements of interest, they are in cases where they are state-run universities, where you have government actors who the First Amendment implies.  On private campuses, although we may not think it’s a good pedagogical method to shut down speech or only allow one viewpoint, you could certainly imagine a campus or a religious school, for example, that wants to teach certain doctrine, and so they funnel speech.  And they’re allowed to do that as private actors.  Public actors are not.  Now, the NFL, as you said—

Marcus:           But wouldn’t—can I just interrupt you for one second there?

Panuccio:         Sure.

Marcus:           Wouldn’t your position also apply to private universities that accept federal funding?

Panuccio:         Well, it depends what conditions there are in the federal funding, so that might be a question of the specific funds that are at issue.  But, large, state actors, the First Amendment applies.

Marcus:           Of course.

Panuccio:         So those are the most basic cases.  When you get into funding it really depends what conditions are on the funding.  But, to go back to your earlier question, the NFL and the players are private entities, and so they can engage in a debate.  The owners and the players can have a debate, and as for the president of the United States or any other government official, they have a bully pulpit; they are allowed to as politicians and as leaders of the country express a view, and let’s face it—these protests, the kneeling, it is about public issues.  And so, the whole point is to engage in a debate over those issues.

Marcus:           On the one hand, the government expresses enormous solicitude for free speech through the intervention that you did; on the other hand, the president doesn’t seem to have such solicitude for free speech in his tolerance or lack thereof of the NFL players.

Panuccio:         I think he’s engaging in the debate.  That’s what’s going on here, is there is a debate about what it is like to—whether you should stand for the flag; whether you shouldn’t; whether that’s an appropriate place; what message are you sending.  And so there’s a message and a counter message, and that’s the whole point of the First Amendment, is we have a robust exchange of ideas, and sometimes they’re joined very sharply, but that’s what we want in this country.

Marcus:           Suzanne, you looked like you wanted to jump in there.

Nossel:            Yeah, sure.  Hard not to.  You know, I think it would be one thing if this was just a matter of political speech, but I think the president has made clear through his relationships with the owners that he wants to see players benched and punished.  He’s called them sons of bitches.  I mean, this is from the president of the United States, so I think the fact that we’ve seen players who have been punished, whose careers perhaps have been ruined as a result of the president’s threats and rhetoric and intervention to punish speech is alarming.  To me it’s one step removed, but it certainly implicates the First Amendment, when the president goes after protected acts of political speech, which these unquestionably are.

There have also been cases on campus, for example in Kennesaw State the cheerleaders who took a knee, and then were taken off the field.  That’s a public university.  So, I’d be interested in seeing the Justice Department intervene in support of those cheerleaders’ rights.  I think some of the points you’ve made in your briefs where you have intervened are very valid, and they’re genuine concerns about free speech on campus, but it’s extremely important that the Justice Department show an even-handed approach, and intervene equally in cases coming from the suppression of speech from the right and the left, and that’s not what we see so far.

I think there’s another element that has to be brought in here, which is the broader climate of civil rights enforcement and what we see on campus.  The campus population already is where the rest of the United States population is going; there’s no single racial or ethnic majority population among American students.  We see an increasingly demographically diverse student population; they’re asking for new kinds of changes and demands on campus, new respect for whether it’s nomenclature pronouns, how LGBT and transgender students are treated, further progress in racial equality on campus.

And I think it’s extremely important that the Justice Department be active in its role in enforcing an equal educational environment, if it’s one—if it’s free speech, but a pull back on civil rights protections and enforcement, I think we’re going to reinforce the idea that the First Amendment’s not for everybody.  We already hear that in our work on campus free speech.  Students who are alienated from the First Amendment, who say First Amendment wasn’t written for me.  The only time they see it is invoked is to protect speech that offends and targets them.

I think there’s a very real risk we run that the First Amendment comes to be seen as associated with a particular political agenda, and it’s crucially important that you defend a campus that is open both to all ideas and to all people.

Herman:          So, if I could agree with a lot of what Suzanne was saying, I’d also like to broaden the conversation, since we’re the first panel on the First Amendment.  I think there’s a widespread misunderstanding and lack of appreciation for the First Amendment on all sides of the political spectrum.  First of all, as Jesse was saying, a lot of people are not aware that the NFL cannot violate the First Amendment because it’s not a governmental actor.  On the other hand, a public university does violate the First Amendment if they punish students as they have for—student athletes for taking the knee during the Star-Spangled Banner, or if they punish conservative students.  We agree with that.

The ACLU’s bedrock principal is we are content neutral about speech, and we believe that universities should be, as well.  Another place where there’s been a tremendous amount of punishment of student political expression is on Israeli boycotts.  There have been quite a number of schools that have prohibited activities of whatever, so it seems to me—I agree with Suzanne that I would hope that the government would be neutral, content neutral about defending everyone’s right to speech.

I also want to follow up on this idea of—the whole idea that there’s a zero-sum game between speech and equality, which is just not true.  The ACLU wholeheartedly defends both.  We think students have a right under federal civil rights laws not to be bullied and harassed, and we also believe that people should have the right to express their political views.  And there are a lot of ways in which those two things, I think, support each other.  And the idea that so many students think in a recent poll, college students said that they prefer equality to liberty.

Now, you can mock that as political correctness and say it’s just about words, but what I think it is, I think it’s coming from a very deep place of empathy, that students understand that if a small—the University of Michigan has a population of African American student, 5%, and I think students understand that if you have a climate of racial slurs and et cetera, that that’s uncomfortable, and we have to find ways, instead of having people each in their own echo chamber talking about my conservative speech and my right and my equality—we have to get people talking to each other.

And it seems to me the primary job of schools right now should be not to censor and eliminate and prohibit people from talking about a subject, but to get people to talk to each other, and to have people who may have a right to make a racist joke understand why it’s not a good idea, and to make students who want not to have a conservative speaker on campus understand that it’s a much better idea to have them on campus and to think through their arguments and where they disagree.

Marcus:           There’s a lot to respond to there.  But can you imagine a world in which the Sessions Justice Department, the President Trump Justice Department goes to a public university and says you can’t discipline your students, your football players, your cheerleaders for taking a knee?

Panuccio:         I can imagine a world in which the Justice Department stands up for the First Amendment regardless of political philosophy or the particular viewpoint that is being expressed.  Now, every factual situation is different, so if you’re on a team on a squad, is that that you have to look at whether it’s a public forum, and all of those things, and that’s why we analyze each case.  But as we’ve said since we started this initiative, we will get involved in any case where we think the First Amendment is being violated.

And I will tell you, if you look at our Michigan filing, just to respond to what was just said, it absolutely is true.  Schools have requirements under law and also just as good stewards of their campus to make sure that they have anti-harassment anti-bullying policies.  But there is well-trodden legal ground about when that deals with true harassment, or it goes over into chilling protected speech, and you know, I’ll give you credit.  If you look at the ACLU’s website, they have a page—I looked at it last night—on campus speech.  It lays this out very well, about the difference between creating an appropriate learning environment for students, while also allowing the robust free exchange of ideas, and there is a balance there, but it’s one we’ve traditionally been able to strike on campuses, but one that seems in recent years to be waning, unfortunately.

Nossel:            Well, I think there’s something else that’s got a commentary, which is, you know, one of the reasons I think the balance is tipping is that we have seen a significant upsurge in white supremacist activity on campus, in the instance of hate speech and hate crimes on campus, and I think that’s because, or at least in substantial part because of this kind of enabling environment for hatred that we see in the current administration, with the Muslim ban, with the attacks on transgender troops in the military, now what’s happening at the border, immigrant children, DACA students feeling particularly vulnerable and targeted and expose.

And so, that has head to sort of a paradox in a sense because it’s led to this upsurge in hateful speech on campus and the sense of a more substantiated victimization, and you could say a couple of years ago this was a kind of coddling of students, but the environment has become significantly more both physically dangerous and treacherous for certain students, certainly DACA students.  And so that has strengthened these calls to curtail speech, which we oppose.  But the work of opposing them has become more difficult because of this enabling environment for hate speech.  And I think that’s something that the administration has to take on.

Herman:          If I could go beyond campus for a minute, it seems to me that the whole idea of safe spaces is something that is part of our partisan atmosphere today.  We have such a hyper-partisan atmosphere that I think students are afraid of ideas that they don’t agree with, they don’t know what to do with them.  So, let me give you an example that has nothing to do with the federal government, but in D.C., since that’s where we are, the ACLU has a lawsuit against the Transit Authority for literally banning the First Amendment.

We wanted to take out an ad running the language of the First Amendment; it was something that we had displayed in Times Square, and it’s the text of the First Amendment in English, in Spanish, and Arabic.  And underneath it says, “The Constitution is for everyone.”  And the Transit Authority refused to allow us to put up that ad because their policy is that you’re not allowed to post ads that are intended to influence public debate.  Now, what is not intended to influence public debate?

So, following up on that, that lawsuit was pending when the ACLU last week had an enormous membership conference in Washington, D.C., and the MTA would not run our ad for the conference.  The only text on that was, “You belong here,” a total innocuous ad.  They finally ended up allowing us to put it at bus shelters.

Marcus:           I saw it in the bus shelter.

Herman:          Yeah, on the bus shelter, but not in the subway.  Okay?  And so that to me, that’s like the safe space.  Everyone is afraid of everyone else’s ideas, and I think we have to learn to talk to each other to figure out what fundamental values we still have in common.

Marcus:           So, this is a terrible segue, I’m going to admit it, but—

Herman:          You’re entitled.

Marcus:           On the question of talking to each other, one question has to do with our work as journalists, and the surveillance that’s gone on, and the potential prosecution that’s looming of our work as journalists, and as the government goes after leakers the surveillance that has occurred of a colleague of ours at The New York Times, whether it was when she was at The New York Times or earlier things.

How do you, in the robust defense of the First Amendment, how do you think about how the government should deal with surveillance of subpoenas for other information seeking of journalists’ work?  And I know you also, Suzanne, has some interest in the question of Ali Watkins.

Panuccio:         Well, I’ll say two things about that just to preface this.  One, ongoing criminal case is not on my side of the house in terms of what I manage; and two, obviously, I can’t talk about any pending prosecution.  I can say more generally, when you’re thinking about the intersection of First Amendment and criminal law, or any provision of the Bill of Rights and criminal law, of course, the Bill of Rights is not a refuge from criminal law, and so a properly-enacted, upheld constitutional criminal law is still applicable, even if it implicates something like speech, or any of the other protected rights, and so finding that balance is always something the Justice Department strives to do, and has policies in place to do that.

Nossel:            I think we’re at a very dangerous moment, in terms of press freedom in this country.  We have out of the White House a relentless drumbeat of verbal attacks on the press; we have a deliberate effort to discredit credible news sources like The Washington Post that I think at some level we’d all agree, are engaged in the business of serious news, to conflate fake, genuine, and fraudulent news, to amplify lies that are published and shared on social media, and to threaten the press in very concrete ways.

And so, I think everything the administration does has to be seen in that context.  To me, it’s unprecedented.  It’s clear, it’s distorting public discourse.  There are many people who cannot sort fact from fiction, and it’s a very dangerous moment, I think, in terms of the role of truth in our society.

In that context, we now have this case with this very far-reaching examination of a journalist’s personal—the metadata of her personal communications going back to her time as an undergraduate, and that’s got to have a chilling effect.  We all know that includes encrypted communications, we think.  So, how can any journalist now go about their work, not worrying about the possibility that they, too, if they’re in contact with sensitive sources, maybe unbeknownst to them, the subject of a similar kind of investigation, where their metadata and communications are being seized and examined?

So, I think it’s very worrying.  I mean, it’s a complicated case; it’s not a clean case by any means, and I think the news organizations are responding appropriately in light of that.  But I think as citizens who depend on media outlets for our information and our ability to play our role as citizens, I think this is worrying.

Herman:          And I think that’s another place, too, where I think people don’t appreciate the First Amendment as much as they used to.  Marty Baron quoted James Madison, so I’ll quote Thomas Jefferson, who once said, “If I had to choose between a government without a free press or a free press without a government, I would not hesitate to choose the latter.”

So, I think you undermine the media by calling it all fake news and getting people not to pay attention to journalistic standards and where people are, in fact, checking the truth.  I think it’s not just about the First Amendment; I think it’s about whether or not we’re going to have an effective democracy.

Marcus:           So, another bad segue way—I’m going to segue way to another part of the First Amendment, which is the religion clauses.  We just had this fascinating, perhaps not the last ruling, in the Masterpiece Cakeshop case.  I’m wondering where you see this conversation going now.  And I’m also going to ask the question in a little bit more of a challenging way.  The other day the Attorney General was citing the apostle Paul on the command to obey the laws of government, because God has ordained the government for his purposes.  Orderly laws and lawful processes are good in themselves.

Why doesn’t it make sense, then, for a baker to obey the laws of the State of Colorado that he should serve same-sex couples equally with straight couples?

Panuccio:         Well, there’s a lot to that question.  You know, to step back a little bit in that case, I guess to answer the last part of it, the question is what is the law?  Under the supremacy clause, if you have a First Amendment right to do something and a state law—that’s what we’re talking about on college campuses is state law contravenes that.  Of course, it is not the law; the First Amendment is the law.  So I think that answers that piece of it.

More generally, in that case it was ultimately decided on religion clause grounds and not on speech grounds.  The Justice Department filed a brief that addressed the speech issue, and in two of the concurring opinions, I believe Justice Gorsuch and Justice Thomas both addressed that, and what I really boils down to in that particular speech question, and what kind of First Amendment scrutiny is triggered, is what is expressive activity?  Do you view the baking of a cake or a custom cake as expressive activity?  And those can be very difficult questions.

There have been many famous and noteworthy cases over the years where nonverbal action has been held to be expressive conduct.  The ACLU’s been involved in many of those cases over the years, and so those are hard and difficult questions, as we balance things like public accommodation laws with the right to speak, and what is expressive activity.

Herman:          Can I disagree with your characterization of the case?  I think it’s perfectly clear what the law is about the First Amendment, and has been since at least 1990, and the law is that religion cannot be an excuse for refusing to comply with an otherwise neutral law, including antidiscrimination laws.  People made religious arguments for why they didn’t have to have racial integration.  People made religious arguments for why they didn’t have to pay women an equal wage.  And Justice Kennedy in his opinion is perfectly clear that he is not questioning those precedents.

What the court did not decide in Masterpiece Cakeshop is they did not decide that there is a First Amendment right of expression claim on the part of the baker.  They just really—that was just not in the case, and I think that that’s very telling.  What Justice Kennedy did decide—and this seems to me to be very typical of his previous jurisprudence—was that you can’t have animus against people for their religion any more than for their sexuality or anything else.

And so, what troubled him was the fact that it just very particular to the facts of this case, that several people on the—at least one—on the Colorado Commission of Human Rights, Civil Rights, made insulting remarks about religion, and that it seemed to be a kind of ad hominem—not personally, but there was animus behind that decision, and what Justice Kennedy says is, it’s not appropriate for any form of government to have animus against anybody, whether it’s that they’re gay or that they’re religious.

So, it seems to me that Masterpiece Cakeshop completely upholds our position that the Colorado Civil Rights Commission would have the right to make the same decision in another case.  The other thing about the case was that Justice Kennedy situated the case in a time before Colorado recognized same-sex marriage, and so there might have been some ambiguity at that time.  There no longer is.

So, while I think Masterpiece Cakeshop is a great disappointment for the ACLU’s clients, David Mullins and Charlie Craig, because they were not vindicated, we think that the case is perfectly clear about what First Amendment law is, and that where the court is going on that.

Marcus:           We’re getting a little bit short on time here.  I’m going to do one Twitter question, and then the final question.  Caitlin on Twitter asks—and it’s an important question—does the potential for substantial disruption, particularly violence from protesters, change what speech is protected on campus?  How should we think about that?  Kind of lightning roundish.

Panuccio:         Go first if you think it’s a—

Nossel:            You know, I really don’t think it does.  I think it’s very important.  I mean, people kind of can misconstrue the concept of incitement.  You know, incitement to imminent violence is one of the categories of speech that can be restricted under our law; but incitement means me encouraging them to go and commit an act of violence; it isn’t me saying something so provocative that Jesse wants to punch me in the nose.

Panuccio:         Not yet.

Nossel:            And so, even if it—so, I think that it is—if speech is still protected, even if it might elicit a violent reaction, this is one of the things that’s come under debate, because universities have to spend a lot of money at times to secure events by highly-controversial speakers.  And our view is, they need to spend the money.  The best thing is to have the person come; you can send a message about how the substance of their speech may be inimical to the values of the university and it can be important for the university leadership to speak out.  But it’s better to let a Richard Spencer or a Milo Yiannopoulos, if they insist on coming to campus, they have a valid invitation, often from a student group—it’s better to let them come, have their moment, let the protest proceed, but without disrupting their speech.  And then they don’t get the validation.  They can’t sue.  They don’t get to grandstand.  And the moment passes.

And I think that’s actually where we are now, and a number of universities, including the University of Florida, have approached it in that way, and I think some of the kind of venom has begun to come out of that particular issue.  So, my view is clear that the potential for violence is not grounds for shutting down speech.  You know, there can become a threshold where an event cannot be secured, absolutely cannot be secured, with the most serious precautions possible, and that might be a different instance, but that’s very rare.

Marcus:           And are you worried from your end about shutting down speech of protestors and chilling them?  Because you’ve talked a little bit about the hecklers’ veto and the risks there.

Panuccio:         Yeah.  So, the hecklers’ veto is another—in one of our briefs we talk about this.  If a school allows, say, a violent protest to shut down speech, that can be problematic, and it can become violative of the First Amendment.  But, peaceful protests or a protest that doesn’t become a crime, it doesn’t go to violence, is valid exercise of speech, and so you have to allow spaces for that protest.

The question is whether the protestors ought to be allowed, if they didn’t like the four of us on stage here today, if everybody got up and simply shut us down, that would become a problem if it was on a university and that were allowed.  So, there’s always a balance there, but I mean, I think generally the answer to speech you don’t like is more speech, and if it does become violent, though, of course we have a much greater problem.

Marcus:           But they’re going to shut us down pretty soon, so let’s squeeze in one last question, which is, you’re the acting number three official at the Justice Department.  I covered the Justice Department many years ago.  It would be fun to be back covering it today because we have the phenomenon of an Attorney General who is regularly rebuked, reviled, criticized on Twitter and elsewhere by the president of the United States.

First of all, what’s that like, working at the Justice Department [LAUGHTER], and second of all, if something happens are you ready to step in as Attorney General?  Ha that come up at all?

Panuccio:         So, Ruth, there’s 35 seconds left.  I bet you I can filibuster right to the end of this thing if you—

Marcus:           I bet you could but—

Panuccio:         I am a lawyer, after all.

Nossel:            Me, too.

Herman:          Pending litigation.  [LAUGHTER]

Panuccio:         Look.  I’ll just say this.  It’s the honor of a lifetime to be able to work at the Justice Department.  Many lawyers would tell you that it is something they want to do and many people in either administration—the administrations of either party try to do that.  So, I’m proud to be there.  I enjoy working for the Attorney General.  We go about our business every day; we’re accomplishing a lot of good things.

Marcus:           How’s he holding up?

Panuccio:         I think he’s doing great, and you see him in the news every day and he’s doing well, but we’re going to keep on working on the important matters.  From my perspective, the things I oversee, the divisions I oversee do a lot of things that don’t make the news every day, buy tar nonetheless important.  Campus speech is just one of many, and I’m proud to be doing it.

Marcus:           All right.  Well, thank you, all three of you, for coming here.  We really appreciate it, and we are actually within our time, and so I’m moving to my notes of the end.

Thank you to all the guests; thank you to Washington Post Live, and I hope it was as fun for you all as it was for us.

Panuccio:         Thank you.

Herman:          Thank you, Ruth.

Nossel:            Thanks, Ruth.  Thank you for your moderation.


Free to State: One-on-One with Cambridge Analytica whistleblower Christopher Wylie:

Timberg:          Hello, I’m Craig Timberg.  I’m the national technology reporter at The Washington Post and here is Christopher Wylie.  He was the research director for Cambridge Analytica.  I think you all are familiar with the story he helped bring to light a few months ago about the ways in which Facebook data was obtained and a lot of other data was obtained and used to help influence the outcome of elections and a lot of other things as well.  And so before we get started, I want to remind everyone that you can tweet questions using the hashtag #FreeToState with no spaces.  Anyway, let’s start with kind of a general question since we’re here to talk about the First Amendment.  Chris, what you talked about involved privacy, it involved political manipulation, it involved our democracy, arguably.  What’s the connection here with the First Amendment from your point of view?

Wylie:              Well, the first thing that I would say is that privacy is the foundation of freedom, right?  Because privacy is what allows us to decide how we are and how we want to develop our personality in different contexts.  Who do we want to be in our family?  Who do we want to be with our friends?  Who do we want to be at work, in public?  Privacy is the tool that allows you decide who you are in different context and without privacy, we don’t have freedom, including freedom of speech.  And when you look at sort of the notion of the First Amendment—and I say this as a non-American, as a Canadian, as an outsider.  So I’ll just caveat everything that I say.

But when you look at what was envisioned when you have a country being set up as a democracy and having free speech is at the center of that.  It’s the public forum and it’s debate and when you look at what’s happened with Cambridge Analytica or social media and we take a step back and go, “How was democracy envisioned back when the Bill of Rights was being drafted?”  You have a candidate, they stand up, they say what they think, and you have an audience, you have a community in a town square.  Everybody hears the same thing and that’s really important because what I’m saying as a candidate is then open to scrutiny.  People in the community can call me out if I lie, if I tell something that’s untrue, it’s open to debate, it’s open to a candidate from another party who is opposing me to call me out on something, and that’s actually a really important facet of democracy is this notion of the public forum and a common experience of what I am saying as a candidate or somebody who is trying to convince you of something.

When you look at what’s happened in social media, it allows me as a candidate to erode the public forum because I now can go to each and every one of you in the audience and whisper in your ear something, right?  And you don’t know what I’m telling this person versus that person versus that person.  And there’s no way to scrutinize that but I’m also doing it after having followed you around for weeks on end, seeing what you like, what you eat, where you go, who do you associate with, what do you talk about?  And so as a candidate, all of a sudden, you are now able to speak individually to each person and whisper into their ear.  And when we look at sort of how was the First Amendment imagined or how was free speech sort of imagined back in the day, that was not physically possible to do.

The sort of intersection between data and technology and how speech is now sort of being engaged in our democracy.  The question that we have to answer is if there is no ability for journalists or opposition candidates or even civil society to scrutinize what is being said in our democracy, where the effect of that is that people start to engage with an election with a different understanding of what is real.  Are we eroding the foundation of our democracy itself?

Timberg:          It sounds like you’re saying that sometimes there can be either maybe too much speech in a sense or speech that’s too narrowly delivered to really make it feel a functional part of a democracy.

Wylie:              The point about free speech is it’s protecting your ability to say stuff in public.  But the difference is that if you are a campaign or if you are a business or what have you, that is saying things to each individual person, you have a message that’s all being delivered in private and if that is not open to scrutiny—if people can’t scrutinize because they don’t know that it’s happening, that’s where you create these sort of cognitive monocultures that exist in the United States and elsewhere because there’s nothing that prevents it from happening in the first place because it’s all hidden.

Timberg:          So Chris, you and I met a few months ago back in London after the first few stories about the Cambridge Analytica stuff.

Wylie:              Yeah.

Timberg:          And since then, you’ve become very popular with law enforcement and regulators around the world.  [LAUGHTER] Can you tell us in general, and I realize there may be some things you’re not allowed to cover in this space, but talk to us in general about what are authorities interested in understanding about Cambridge Analytica and what happened there?

Wylie:              So it depends on the jurisdiction.  So for example, in the UK, where there is the Data Protection Act, which is a specific piece of legislation to do with how data and personal information can be handled.  That is the lens that regulators are looking at it.  In the United States, there is no data protection act so when you look at what different regulators and the police are looking at, there’s different aspects of the law here that may have been engaged, whether it’s foreign corrupt practices, whether it is frauds, whether it is various pieces of consumer legislation or consumer protection legislation, or indeed, when you’re looking at Facebook, the FTC, and the consent decree that Facebook agreed to and whether they are compliant with that.

So there’s a lot of different agencies and a lot of different regulators in the United States that are looking at it from different perspectives.  But the interesting thing that I’ve found having dealt now with both American and European regulators is that it’s a lot simpler in Europe because there is data protection legislation.

Timberg:          Right, there’s bright laws that one could cross.

Wylie:              There’s just very clear statutes.  Whereas here, it’s messy.  It’s like there’s something that feels wrong, but it’s more complicated here because there is no federal privacy law.  There’s no federal data protection law.  And that’s actually something that I’ve talked quite a bit about with various members of Congress and Senators here is that it’s interesting that you have the one Western developed country that it does not have national privacy legislation.

Timberg:          Right, and so as we walked in on the video screen behind us, they showed Steve Bannon, the former head of Breitbart News, the former White House official, the former head of President Trump’s campaign.  I gather you knew Steve Bannon in his Cambridge Analytica incarnation.

Wylie:              Yeah.

Timberg:          He was vice president.  You were a relatively senior official in that company.  Tell me about Steve Bannon’s role in Cambridge Analytica and what it did and to what extent he knew about the things it was doing, including the collection of Facebook data.

Wylie:              Well, he knew about everything that was going on in the company because everything had to be authorized by him.  It was him and Rebekah Mercer together who approved how money was spent, what projects were focused on and what they weren’t.  And also, he was one of the people who after—you have to remember, when I joined SCL, this was before even Alexander Nix met Steve Bannon.  Cambridge Analytica wasn’t even a glimmer in our eyes yet.  We weren’t doing alt-right research.  We weren’t doing alt-right projects.  That all came when Steve Bannon took over.  So Cambridge Analytica because of Steve Bannon.  He even picked the name.  It very much was his vision of a company in what he wanted to do.  The problem for Steve was that with Breitbart, it wasn’t expanding into the mainstream in a way that he wanted.

And when you think about a culture war, you need an arsenal of weapons to fight a culture war and so the notion of using a foreign military contractor that specializes in information operations and psychological warfare for the military really appealed to them because he could then use that company to build informational weapons.

Timberg:          And let me just clarify this for a second.  So there was an underlying company, SCL Group.

Wylie:              Yeah.

Timberg:          Based in London, that did psychological operations around—

Wylie:              For the military, including for the Department of Defense here.

Timberg:          Including our own U.S. government, the British government.

Wylie:              Yeah.

Timberg:          And out of that is born Cambridge Analytica when Rebekah Mercer and her father invest millions of dollars.  Cambridge Analytica becomes essentially an American brand of the SCL Project?

Wylie:              It acquired the intellectual property of SCL, put that into a new company in America called “Cambridge Analytica,” and then licensed back the same IP to SCL and then had an agreement where all contracts had to then go to SCL.  Cambridge Analytica didn’t have any staff, right?  Cambridge Analytica was a concept.  It was a brand, it was an American thing because it would look optically bad.  This was one of the things that I would later learn is that they were concerned that the optics of using a foreign military contractor in American elections would not play well.

Timberg:          What were they thinking?  [LAUGHTER] So it was an idea that was based and had an office in Manhattan.  Am I right?

Wylie:              Yeah, they eventually set up an office.

Timberg:          Incorporated in Delaware.

Wylie:              Yeah.

Timberg:          And the vice president was?

Wylie:              Steve Bannon.

Timberg:          And the president was?

Wylie:              Rebekah Mercer.

Timberg:          And the most important financial backer was?

Wylie:              Robert Mercer.

Timberg:          So this is certainly like a substantial American footprint in the end, but all of the work was being done where?

Wylie:              In London.  There is almost no Americans working in the company because when the IP got acquired, we weren’t working in the United States.  And they were warned repeatedly by lawyers, by Rudy Giuliani’s law firm sent a memo to Steve Bannon saying, “Hey, you can’t have foreign agents operating in an election.  You can’t do that.”  And they completely disregarded that and just kept going.  I remember having conversations with them going, “You need to create an American team to be compliant.”

Timberg:          So if you’re in London and they’re in New York or Washington or wherever, how were you interacting with Steve Bannon or Rebekah Mercer? 

Wylie:              Steve would come to London all the time because he was also setting up Breitbart UK.  So he had a lot of projects on the go in London and so he would be there frequently.  But conference calls and whatnot.

Timberg:          And what was he like?

Wylie:              It’s funny because I remember two different Steve Bannon’s.  So one was before he took over and I actually quite enjoy talking to him because one of the first conversations I had with him was on the intersectional nature of identity because he was quite interested in that and he was really interested in culture because the Breitbart doctrine is that politics flows from culture, downstream from culture, so if you want to change politics, you have to change culture.  And one of the things I said is like, “Well, but you can’t define what culture is.  You haven’t told me what culture is and until you define it, you can’t measure it.  And if you can’t measure it, you don’t know what you’re doing.  You’re just stabbing in the dark.”  And so one of the things that I said is I said, “Well, if you look at the words and language that we use to describe different cultures and the words and language that we use to describe ourselves as people, often they’re the same adjectives, right?”  So if you just indulge in some stereotyping for a second, what are Italians like?  Maybe they’re more passionate.  Maybe they’re more neurotic, they’re louder.

What are Germans like?  Sorry if I’m offending people.  They might be organized, more dutiful, and when you look at that from a data scientist’s perspective, actually, what you’re probably describing is just a curve and you’re describing that where the mean is on this curve is slightly higher or lower on certain traits or certain characteristics of people.  And so the building blocks of culture maybe are people and their personalities and that in the aggregate, that is what creates culture.  That it is an aggregation of our commonly shared characteristics.  And so if you wanted to measure culture and you wanted to change culture, you first would need to measure people and once you create a measurement of people that correspond to culture, when you want to move this curve one way or the other, you can literally create a list of people that you need to move that one standard deviation out and then that becomes your target universe.

And so he found that really interesting.  He also liked the idea that we were working on military projects and he was the one that convinced Bob to buy into it.

Timberg:          And did Cambridge Analytica engage in any voter suppression efforts as far as you know?

Wylie:              Well, I am aware of various projects where voter suppression in the behavioral sense, so not voter caging or literally removing people off of lists but identifying behavioral characteristics in certain target groups.  Mostly as I understand it, African-Americans and finding things that will demotivate them to turn out.

Timberg:          What kinds of things?

Wylie:              So making politics sounding confusing or boring or finding things that somebody really cares about and repositioning that.  Essentially making people hate politics or find it confusing.  But it depends on what sort of target group you were looking at because different people have different sort of motivators or rather, demotivators.  But there was definitely memos and documentation that talked about quote-unquote “voter disengagement” as a priority for certain projects.

Timberg:          For what clients?

Wylie:              Various PACs that Bob Mercer funded.  And it’s interesting because a company called “UpGuard,” which is a data security firm found a misconfiguration in some of the Ripon software.

Timberg:          Ripon is a project originally targeting American Republican candidates.

Wylie:              Yeah, so this was the software that took the data and then pushed out ads online and one of the things that they actually found recently was there was a section of software code that actually was labeled “the voter disengagement module.”  So it was like suppression was built into some of the software that they were actually building for Republican clients.

Timberg:          So let’s talk about Facebook for a second.  Lots of people love Facebook.  See pictures of their friends’ babies and their trips so they keep in touch with folks maybe they haven’t seen for years.  Did Facebook do something wrong here?

Wylie:              Oh, boy.  [LAUGHTER] I don’t even know where to begin.  So first of all, I think Facebook hasn’t been wholly candid with what it knew when and how much did it tolerate the projects that were happening because it actually approved the terms and conditions of the application.  So before the data harvesting began, Facebook was notified with the new set of terms and conditions that said, “This data is going to be pulled.  This is how it’s going to be pulled and it’s going to commercialized, transferred, and sold.”

Timberg:          So this happened before on 87 million people.

Wylie:              This happened before and they approved it.  Now, the CTO of Facebook at the British Parliament a couple of weeks ago said that they may not have read the terms and conditions before they approved it.  [LAUGHTER]

Timberg:          That would be like all of us, though.  We always do that.

Wylie:              The irony of a company that says, “Oh, well.  You’ve got these users that sign these terms and conditions so they agree for us to do whatever we want with their data don’t even read terms and conditions of applications that then take that data also.  There’s an aspect of Facebook’s business model that doesn’t involve privacy.  You have to remember when you’re taking data off of Facebook, whether it is legitimately or illegitimately, that data often is just used to optimize Facebook advertising.  Which is what happened with Cambridge Analytica.  So I suspect that Facebook turned the other way when it was happening because they make money off of it.

This is why when you think about even the very layout of Facebook, the likes page, right?  When was the last time you ever went on the like’s page?  When have you ever own likes or somebody else’s likes?  Probably pretty rarely.  When have you scrolled down all of the likes?  Probably pretty rarely.  So you’ve got all of these features that make it really easy to scrape profiles that have no actual utility for users.  So Facebook has designed their entire platform to just make data very easily available.

Timberg:          But do we give them—[OVERLAPPING]

Wylie:              That’s not to say that they’re doing it intentionally so that people—

Timberg:          Yeah, but we’re giving it to them, right?  How are they actually wrongly if we’re just giving them all this data.  Shouldn’t they use it however they want?

Wylie:              No, because that’s like saying I should be able to build a building with no fire exists because it ruins the concept of my aesthetic.  [LAUGHTER] And so long as I put terms and conditions outside of the building that says, “You might burn alive.”  It’s up to those people.  If they burn alive, so be it.  The thing that’s really important for people to understand is we—so in modern society, what job can you get where you refuse to use the internet, right?  It is the new electricity.

So when people sign up to terms and conditions.  It’s a false choice because it’s saying, “If you don’t want to get electrocuted, don’t use any electricity and go be a hermit in the mountains somewhere.”  It’s not a real choice.  And so it’s not even, “What is Facebook doing wrong or what they’re doing right?  Or, should people just leave Facebook?”  But if you leave Facebook, you’re still on Google.  You’re still using Twitter.  You’re still using Uber.  Everything to do with modern society involves the collection and harvesting of data.  And so we should not be thinking about it through the lens of this false consent and terms and conditions.  We should be thinking about it like we do for everything else that’s important in our lives, whether it’s food, medicine, cars, whatever, in terms of safety.

In terms of consumer rights, that you don’t actually have a real choice to use what is effectively a utility on the internet.  So whether or not you agree or don’t agree on these terms and conditions that no one reads, it should be a moot point.  We should be creating as a society a common set of standards that apply universally to whatever technology company it is that says, “This is what you’re allowed to do and what you’re not allowed to do with data full stop.”

Timberg:          Well, this has been fascinating.  I wish we had another hour to dive into all of the many potential solutions to the problems you’ve outlined.  It’s been really interesting.  Thank you, Christopher, for coming in.

Wylie:              Cheers.

Timberg:          Nice to see you again.  Thank you all for listening and I think there’s more awesomeness coming and so please stay tuned while the next group comes out.


Free to State: Let’s talk about ‘political correctness’:

Ellison:            Well, hello, everyone.  Craig promised more awesomeness so here we are to deliver it.  My name is Sarah Ellison and I’m a media reporter with The Washington Post.  We are going to talk about “political correctness” and I want to put that in quotes because we’re going to talk about what the phrase means.  It means different things to different people.  How the concept has been used in our public discourse and the relationship with free speech.  I’d like to introduce my panelists.  In the middle is Melina Abdullah, who is the co-founder of Black Lives Matter Los Angeles, which I just learned was actually the first Black Lives Matter chapter, the only one.  And she’s a professor and chair of Pan-African studies at California State University.  Hari Kondabolu, the comedian and creator of the documentary The Problem with Apu.  And finally, Dylan Marron, a digital creator whose most recent project is a podcast called Conversations with People Who Hate Me.  That’s not what this is going to be so it’s great to have you all here.  I’m really pleased.

Before we get started, I want to remind everyone, the audience here and around the world, people who are tuning in that they can tweet questions for Patrice, Hari, and Dylan using the #FreeToState and I will pose them.  They’ll show up here and I’ll pose them to our guests later in the conversation.

So political correctness.  I want to start with you, Dylan.  What does it mean to you?  What does the phrase mean?

Marron:           What does the phrase “political correctness” mean?  Well, as a child, I knew that whenever I corrected an inappropriate joke from my dad, he would always rag on me for being too politically correct.  And I did not know that this would launch into a bigger national conversation beyond—

Ellison:            Your dinner table?

Marron:           Yeah, exactly.  So to me, political correctness is the determination to be more inclusive and to be more mindful of the potentially harmful things that we’ve maybe unknowingly done to marginalize people, calling attention to representation in film.  Lack of representation in film, calling attention to offensive jokes.  So political correctness to me, which I think has gotten an awful rap.  People think that political correctness is the reason for all wars ever throughout human history.  I disagree but political correctness is the determination for the inclusion of marginalized people throughout culture and language.

Ellison:            Melina?

Abdullah:        Sure, when we think about political correctness, it has this negative connotation, right?  In the way that your president was speaking about it—

Ellison:            Your president.

Abdullah:        Your president was speaking about it really kind of condemns people who are looking for media representations, looking for inclusion and power dynamics as problematic, right?  And it kind of takes justice efforts, equity efforts and it minimizes what we’re actually doing, right?  That’s one approach to political correctness.  At the same time, they are demanding a certain degree of political correctness from those of us who have less power than they do.  So when we think about—

Ellison:            What do you mean by that actually, though?  What are you talking about when you say that?

Abdullah:        So when we think about the birth of Black Lives Matter and we think about the current protest movements, there’s this demand by those who already hold power and who are oppressing many of us who are people of color, who are women, who are queer folks, who are poor, right?  They’re demanding that we demand our rights in fairness and justice in particular ways.  So they have their own politically correct kind of mantra that they’re offering.  They’re saying that we’re wrong when we get on the freeway and make cars slow down, right?  They’re saying that we’re wrong to yell.  I’m thinking about the work that I do on Black Lives Matter and we work very closely with families of those who have been killed by police.

They’re even censoring the way that black people mourn and saying things like, “You have no right to yell.  Just vote someone else in.”  That’s still a demand for political correctness, but in the wrong way.  The absolute wrong way.  So I think that we really need to think about the kind of hierocracy of that and think about political correctness in its traditional sense, the one that they condemn is really a quest for justice and equity.

Ellison:            And so if I can paraphrase some of what you’re saying, it’s silencing some speech, but from the people who they—

Abdullah:        Because they don’t want to hear us, right?  The people who have to yell, right?  What is it?  A riot is the language of the unheard, right?  We have a right to riot because you’re not hearing us when we speak in the way that you dictated that we need to speak.

Ellison:            Hari?

Kondabolu:     At this point, I don’t think political correctness means anything.  It’s been used so many different ways and if language is supposed to be able to give us a sense of a feeling or an idea or create images in our heads, I don’t know what political correctness does anymore.  It’s used depending on your point of view.  Honestly, it’s not so much just the ideas behind it, but just the term itself ends up being a block to the conversation.  You say that and you’re done, right?

The British comedian Stewart Lee called the political correctness “a kind of institutionalized politeness,” which is one way to look at it.  The idea of inclusivity, being a good neighbor, so forth.  It can also be seen simply as sensitivity, right?  You’re being too sensitive.  If you use the word “sensitive” when people are saying you’re being too politically correct, you’re being too sensitive.  You’re inferring both.  They’re just words and ideas.  Yeah, that’s what we talk in, words and ideas.  [LAUGHTER]

That’s what language is.  Oh, don’t pay attention to me.  I’m just speaking to you in a way for you to understand what I’m saying.  But it doesn’t mean anything.

Ellison:            Well, what about the idea if you say, “Well, you can’t offend someone.”  I have two little kids and my five-year-old now says, “Sticks and stones will break my bones, but words can never hurt me.”  Why can’t we offend people?  What does that mean?  What is that question?

Kondabolu:     Offense, first of all, it depends on the person.  I think sometimes we talk about, “That’s offensive.”  Well, to some people, that’s offensive.  I get called very inoffensive by the people who like me, who like my standup.  “I love you because you’re not offensive.”  Well, there’s a lot of older white people that walked out of my show so I think I might be a little offensive, right?  So you can’t define what is and what is not offensive.  I think to me, it’s like, “Is this useful?  Is what you’re saying useful?”  It’s not to say that because it’s not useful you can’t say it.  You can say whatever you want as long as there is no threat or a greater restriction of free speech or damage, right?  If you yell fire in a crowded movie theater, isn’t that the Supreme Court case and that’s where you restrict free speech.  But legally, to me, it’s like all there but is it going to be useful?  Are we going to have a real conversation about this or this just an act of power?

Ellison:            I want to talk a little bit about your documentary, which is The Problem with Apu.  And I don’t know how many people here have seen it or heard of it, but you call out The Simpsons for its racist Indian stereotype in the character of Apu.  A convenience store owner no less.  Some critics fault you for taking issue with a character that came to be in the ‘80s.

Kondabolu:     I wanted to say something earlier, but I was eight when it came out.  [LAUGHTER]

Ellison:            Talk about how representation has changed.  Of course, you can call it out now even though it was created in the ‘80s.  Just talk a little bit about how you came to that and what made you want to make the documentary?

Kondabolu:     Sure, I used to be on a TV show called Totally Biased with W. Kamau Bell.  It was on the FX network and Kamau used to let his correspondence and his writers share their own points of view.  He wanted us to tell our authentic stories.  So Mindy Kaling was getting a new show, which was The Mindy Project.  So I wanted to do a show about the history of South Asian representation since this was clearly a big moment because it was a South Asian woman having her own show.  So when I was going over it, certainly, Apu being the only representation that existed regularly for South Asians for at least a decade in the U.S. growing up.  It was wired to be defined by a cartoon character voiced by a white guy using a crappy Indian accent.  So I decided to put that in but to be honest, I felt there was a little—why do I need to talk when everybody thinks about this stuff already.  I don’t see the issue.

And Kamau had to remind me that, no, you and your community have discussed this to death.  For most Americans, they don’t see any issue with this.  It’s just a cartoon or it’s just television, why do you care?  And as an artist who actually values what’s being put out into the world and see words as having an impact because then why else are we using them?  I decided to talk about that and it was something that has been used in college classrooms as a teaching tool.  So it felt like a documentary to explore it a little bit more thoughtfully was necessary and lucrative.

Ellison:            That’s the most important thing.

Kondabolu:     Not nearly enough.  [LAUGHTER]

Ellison:            I’m still amazed.  I will reference my kids again.  There are these Disney live-action shows where the Indian characterized is always good at math.  And I’m like, “Really?”  This was made in 2017, like last year.  So this wasn’t just something that was—the ’80s, yes, that character was beyond what would be created today.

Kondabolu:     It’s cool that people of color and other marginalized groups are given scraps by the power structure, but the main thing is for the power structure to change itself.  The reason why that character exists is, chances are, it wasn’t diverse writers or creator that made it, right?  How many times do you see an Indian character and their name is Raj.  Apparently, everybody only knows an Indian person named Raj, or use the last name Patel, or something because that’s the one you know.  So the characters when they’re not made authentically, they’re going to echo what the mainstream, which is coded language for white people in America thinks, right?  And that’s where the money is going to.

If you are a network, if you are creating a movie, whatever it is, that’s your consumer base, historically.  It’s changing now because everything has been so spread out.  So when let’s say people of color and women and members of the LGBTQ community get a choice now to say something, it isn’t because of political correctness.  It isn’t because of a sense of diversity and fairness.  it’s that people with money realize that, “If we let this person have a show, there’s a bunch of other people that will give money—”

Ellison:            Will pay for it.  Right.

Kondabolu:     “I didn’t know their community had money.  Well, I want their money, too.”  [LAUGHTER]

Ellison:            Right.  Right.  Dylan, in this question of free speech—and that’s sort of what the whole event is about, but you’ve embraced the idea of engaging with people who are offensive, or—I don’t know—or who hate you, or who are insulting you in some way.

Marron:           Right.

Ellison:            Why do that?  Why is that valuable?

Marron:           So, the way I think of my podcast, is I think of it as the asterisk on the First Amendment.  You are free to say whatever you want.  I am going to ask you why you said it.  And I think that’s what I try and focus on in my show.  I really want to be clear that my show is not a debate show.  If someone calls me a “faggot,” we’re not going to debate about how much of a faggot I am.  [LAUGHTER] Because it’s high.  [LAUGHTER] We are also not going to necessarily debate about whether or not being gay is a sin.  What I am very interested in is asking why someone thinks a certain way.  And that’s something that I don’t see a ton happening in discourse.

And I want to share something interesting, which is that a lot of times when I asks my guests to come on the show, if they accept, they often say, “Yes, I can’t wait to debate you.”  And I stop them right there, and I say, “No, no, no, no.  This is not a debate.”  But it is interesting that the word “debate” is the closest approximation we have for having conversations across difference.

And the reason I don’t use debate on my show and don’t love it is for two reasons.  One, I think debate is gamified conversation.  There is a winner and a loser at the end of it, and I think some issues are so complex that we cannot have a simple winner and loser at the end of a conversation.

And the other, and I don’t mean to be bleak here, but we are living in a very dangerous post-fact world.  And what I mean by that is if we are—now of course, there are facts.  They exist.

Ellison:            I hope.  Or else we’re really in the wrong business.  [LAUGHTER]

Marron:           Yes.  There are facts, but we live in a time when, if I feel a certain way and my guest feels a certain way and it’s the opposite, I can go online and vet everything I’m saying with a whole bunch of sources that I deem to be reputable.  And they can do the same thing.  And that’s a very, very terrifying thing.  I don’t need to tell this room that that’s a terrifying thing.

But that’s why I am trying to kind of interrupt the space by asking why someone thinks a certain way.  Because at least they are experts on themselves, right?  I’m not saying debate isn’t necessary.  I’m not saying we don’t need to have crusaders for truth and for fact.  I’m dealing with truth, but I’m dealing with personal truth.  And that’s how I see my podcast is attempting to disrupt the space of discourse.

Abdullah:        So can I ask you something, though?

Marron:           Yeah.

Abdullah:        So I hear what you’re saying, and we talked backstage about kind of taking opposite approaches.  Like, I absolutely won’t engage with people who hate me.  If you hate me, go hate me somewhere else.  [LAUGHTER]

I wonder why—because especially after this last presidential election, there was a lot of conversation, especially towards us in the activist community who were most in the streets—what are we going to do to win the people who voted for the current president over to our side.  And there was conversation about that, and how are we going to reach out to them.

And my thing is, I’m not.  [LAUGHTER] I’m not.  You are a white supremacist.  You go over there.  And I’m over here.  There is no—I don’t want to reach out to you.  I know what you think of me, and if you have your own personal coming to Jesus or Allah or whatever moment and it changes you, good—go through that process, but I don’t want to be part of it.  Why do you think it’s important—I guess this is me doing you, right?

Marron:           Yup.  [LAUGHTER]

Abdullah:        Why do you think it’s important to dig when the people who hate you, and for the reasons that they hate you, are so problematic for the world?

Marron:           Well, first, I kind of just want to start by saying that I completely affirm the work you do, and I don’t think that—not that you’re saying this, but I don’t think that our work necessarily conflicts with each other.

Abdullah:        Right.

Marron:           I see activism as a mosaic, and I can only hope to be a tile in that mosaic, and everyone has a different way of doing their work.  I don’t necessarily see my work as changing people’s minds.  I also want to just be clear about the title—the reason the title exists that way is that often when you read a negative comment to you on the internet, no matter where it falls on the scale of negativity, it feels like hate.

Abdullah:        Right.

Marron:           I don’t think anyone who I spoke to would ever identify as a white supremacist, and also—

Abdullah:        But they are.  [LAUGHS]

Marron:           But—well, I don’t want to speak for them.

Abdullah:        I mean I’m just saying that there’s a lot of white supremacists who don’t identify as white supremacists, but their behavior is absolutely white supremacy, which makes them a white supremacist.  So I don’t need them to affirm it for me—I know.  Right?

Marron:           Right, well—but—yes.  Not to comment on my guests, but I do think that systems of white supremacy are upheld by people who don’t know that they’re upholding them.  That I think is fair to say.  Again, not speaking for my guests.

But in terms of this whole, we should just be speaking to the people that disagree with us, we should be speaking to the people who hate us, we should be speaking to the people who oppose us, I also am very clear in my podcast that I don’t see it—nor do I see what I’m doing—as a prescription for activism.  I am not saying put down the protest sign and pick up the phone and the world will be a better place.  I am only—

Abdullah:        Or hand them a Pepsi.  [LAUGHTER]

Marron:           Honestly, yeah.  I was inspired by the Pepsi commercial, and I just said, “I’m Kendall.”  [LAUGHTER] No, I—so I hand every one of my guests a Pepsi.  [LAUGHTER] So I just see it as trying to showcase what conversations can look like across difference.  I do not demand that anyone else do it.

But I will say, and this is not tooting my own horn, this is just to say, well, what’s the point of it all?  And the point of it all is, when I get emails from people who are closeted and they say that just hearing the podcast has helped them find ways to talk to their parents, it has helped them start the process of having different conversations in their own life.  The conversations I have, I’m not encouraging everyone to do the same, to reach out to people who wrote them negative things online, but in what other ways do you have contentious conversations in your own life, you know?  So I wouldn’t ever say that my podcast or my approach is in any way meant to kind of one-up other forms of activism.  It is just showing a way of communicating that I don’t think exists in a huge way right now.

Ellison:            So Melina, I want to follow on that.  When you said—I don’t want to misquote you—but did you say that you wouldn’t appear on stage with a member of law enforcement?

Abdullah:        No.  I would not.

Ellison:            You would not.

Abdullah:        No.  And we actually have—

Ellison:            Why is that?

Abdullah:        So just to be frank with you, you know, I believe in reimagining public safety.  I believe that when we talk about how to build a world where we can all live and walk freely, for me, and I think for many others, that’s an absence of police.  Being someone who’s studied the origins of policing, especially in this country, and understanding that the roots of policing are in chattel slavery, and that the origins of policing are in paddy rollers, and they’ve been trained to see me and other black people with targets on our backs, my goal is not to make kinder slave catchers.  What I’d rather do is spend time with people who are serious about engaging in radical imagination, and saying what does freedom look like, and building towards that.

So I’d rather spend my time talking with folks like this and saying, well, the world could be freer if we had livable wage jobs for people, if we had housing for people, if we had mental health resources for people.  We don’t need people roaming through our streets with guns and badges and really seizing upon us, descending upon especially black, brown, and poor communities, and then having a goal of locking us up in cages.  So I don’t want to sit on a panel with law enforcement.  They can all get other jobs.  I live for the day when that [LAUGHS] is gone and they can all be retrained for something else.

Kondabolu:     And I see a value in the reaching out—not so much with regards to police officers and the work you do, but I think for those of us who are either able to reach out, want to reach out—so much of this recent wave of more formal white supremacy, different groups, comes from a sense of alienation and loss and anger, and the internet has always seemed to serve that purpose, regardless of what your politics are, to find other people.  And so there are some people who are far gone.  Like, it’s done.

Abdullah:        Right.  That’s right.

Kondabolu:     It’s done.  But there are people who are just—you know, they are just lost, and they want something, and this is the group they’ve chosen, and—

Abdullah:        What group?  When you say “this is”—

Kondabolu:     Whether it’s—what is it, the Proud Boys or Vanguard, or all these different groups that have—it’s amazing that Nazis get different names, but for us, diversity doesn’t matter, okay.  [LAUGHTER]

Abdullah:        Right.

Kondabolu:     But if you are 18, 19, 20 years old and you go to that, you’re different than a 44-year-old with a job, access, and pushing forward.  To me, I see a difference in, is there even a conversation that can be had?

Abdullah:        Right.  Also, we have to guard our own souls.

Kondabolu:     Sure.

Abdullah:        So I don’t want to sit on a stage with someone or engage in conversation with someone when—you know, and this isn’t to overstate it, but as a black woman and a black mother, every single day is a trauma.  There’s a trauma every single day.  Why am I going to—I don’t need to thrill seek.  I don’t need to engage in some kind of activist version of bungee jumping.  So I don’t need to sit on a stage with a cop, with a white supremacist, with a, you know, heterosexist.  I don’t need to do that, because there’s other things that I can be doing.

I loved what you said backstage, Hari, when we talked about comedy, and you said, “It’s not therapy, it’s therapeutic.”  That’s how I feel about activism.  I want to engage in activism and in organizing in ways that are therapeutic and restorative to my soul, because there’s enough in the world that’s depleting and that attacks us.

Ellison:            I’m watching this count down, and I’m so angry at the clock because I wanted to talk about microaggressions, I want to talk about hate speech.  I feel like microaggressions are this thing that people, similarly to political correctness, they’re like, “Ugh, it’s a microaggression.”  I feel like you guys might have something very interesting to say about that, but—

Kondabolu:     We do.

Ellison:            —I’m going to leave everyone wanting more.  [LAUGHTER] And we’ll continue the conversation backstage.  Thank you all.  That’s the only time we have, and that’s all I need to say.  That’s it.  Thank you so much.

Abdullah:        Thank you.

Ellison:            Come back next year for the next round.


Free to State: What the end of net neutrality means for online speech:

Fung:               Good afternoon.  My name’s Brian Fung.  I’m a technology reporter here at The Washington Post.  I cover telecom and broadband issues.  Today we’ve got a very interesting panel lined up on net neutrality, which is an issue that I’m sure a lot of you have heard about recently.

Got a fantastic panel here lined up.  We’ve got Commissioner Michael O’Rielly, one of the Republican commissioners at the FCC.  Beside him, we’ve got Senator Ed Markey, who has been leading the charge in Congress to reverse the FCC’s decision to repeal the net neutrality rules.  Beside him, we have Jonathan Spalter, who’s the head of U.S. Telecom, which is a trade association representing broadband providers and ISPs.  And finally, we have Rob Atkinson, who’s the president of ITIF, a think tank—spelled out, the Information Technology and Innovation Foundation.

So I thought I’d start out just with a pretty general question talking a little bit about—we’re now a week since the Federal Communications Commission’s net neutrality rules have come off the books officially.  And Commissioner, let me start with you, and Senator, I’ll come to you next.  The repeal of the rules has allowed internet providers now to favor certain types of content over others so long as they disclose that fact.  You know, perhaps a streaming TV service here, a music streaming service there.  What effect will that have on free speech on the internet?

O’Rielly:         Well, first, thank you so much for having me.  I appreciate being here.  And I did catch the last panel.  I want you to know, I don’t hate anybody.  [LAUGHTER] That last panel really—whew, interesting.  But to your point, I think the experience for American consumers on the internet is going to be exactly the same that they had previous to last Monday, previous to the 2015 rules.  It is going to be the same experience.

What you may see are opportunities for companies to establish new practices that will be beneficial to the overall experience.  Whether it’s trying to figure out, you know, paid prioritization—it’s always, paid prioritization, right?  “That’s a ban on paid prioritization.”  Well, we have eliminated that ban, and there’s an opportunity to build consumer-friendly packages that will benefit the overall internet experience.  Is it an opportunity also to be harmful?  Potentially, and that’s what we’ll have to keep forward—[OVERLAPPING]

Fung:               What’s an example of a consumer-friendly business model under this new regime?

O’Rielly:         Sure.  Two that are always cited—the good part is we don’t know that experience yet, but two that are always cited—autonomous cars, remote surgery.  You want that experience—you want to make sure that data goes through ahead of some cat video.  You need to make sure that it goes through when you’re talking about remote surgery.  That’s an experience that has to happen.  And if it requires a financial structure so they can actually make the data go through, then that is something we want to allow to happen.

But we don’t want the anticompetitive side, and that’s why we’ve reestablished and reauthorized—previous rules took away FTC authority.  We have reverted FTC authority as provided under statute to look at those anticompetitive instances.

Fung:               Senator, what’s your take on this?  How could the internet change for consumers and affect the way that speech occurs online?

Markey:           Well, another way of saying net neutrality is nondiscrimination, and that’s essentially been something that’s been built into the personality of the internet right from the beginning.  However, every new merger—AT&T, Time Warner—there’s a whole lineup that’s getting ready to come to this particular justice department, this particular era of politics to see if they can get permission to consolidate, and the more that happens, the companies that carry the information are also the companies that produce the information.

And so that’s a built-in temptation for those companies to start to discriminate against companies, against individuals, against citizens who don’t have big pockets but have a voice and they want to be heard.  And so there’s going to be an increasing temptation on the parts of these companies to create fast lanes for those companies that can pay and discriminate in favor of their own content, and to look at the world of smaller writers, producers, content creators, and just kind of be pushing them away.

And so from my perspective, they now have the legal right to do it.  They’re going to hold until all of the court appeals are finished.  They’re going to hold until we reach the end of this year so they can make sure that in the House of Representatives that net neutrality is not restored, as my Congressional Review Act amendment made possible in the Senate just four weeks ago.  Then they’ll be free, once again, to consolidate and to discriminate.

So that’s my concern.  It goes right to free speech.  It goes right to an individual on the street seeing a policeman acting in a way that’s violating the civil rights of someone, and the local newspaper hasn’t really covered it, the local TV station hasn’t really covered it, the local cable system hasn’t really covered it, but this individual can livestream—they can be a citizen journalist, and something like that can go viral immediately.  We don’t want to be in a world where that person can be discriminated against, where that whole class of people within our society reaches a point where they’re no longer given the same rights, the same opportunities to speak as they have been, historically, under a net neutrality.

Fung:               So Jonathan, how likely is this scenario likely to play out?

Spalter:            Well, I’ve got to say that I’m in absolute violent agreement with Senator Markey, that in fact all broadband providers, absolutely, to their core, are committed to nondiscrimination.  This is not a debate about net neutrality pro or con.  Broadband providers are a hundred percent for an open internet, for nondiscrimination, for net neutrality, full stop.

What this is a debate about is extending this nondiscrimination principle to the idea that Congress needs to establish a national framework that every single American consumer can have the full protections of the open internet, privacy, looking forward to an even more optimistic future for our internet, but that doesn’t merely focus on ISPs, but extends to all parts of the internet ecosystem.

There’s not an internet user alive who, when they think about the internet, only thinks about ISPs.  It’s like a community pool and the lifeguard only looking at the shallow end where ISPs live, where at the deep end you have, in fact, in real time, today, actors that are actually doing some very questionable things.  The idea of national legislation that can solve these problems with certainty and predictability over the long haul is where we need to move towards.

We need to not just raise a ruckus but lift our sights and do the hard work that in fact Senator Markey and Commissioner O’Rielly undertook in ’96, really bravely, courageously pushing a huge legislative log up the hill against all odds to shape a framework that propelled the modern open internet we’re enjoying today.  It’s time to rejoin that work, and all of us are ready to get to work in shaping that next generation of national legislation.  And I hope we can begin that work.

Fung:               So the idea that internet providers as well as websites should operate under a same sort of rubric or framework makes a lot of sense to me conceptually on the privacy side.  When it comes to this principle of nondiscrimination of content, how do you see that working out when you’re trying to apply this to websites such as Google or Facebook?

Spalter:            Sure.  Well, I mentioned the deep end of the pool, and there are companies today that are really actually gaining the headlines for really blocking content and services and application.  Look at what’s transpired between Amazon and Google.  It is not the broadband ISPs that we need to only and uniquely turn our attention, we have to have a more comprehensive view, from the consumer’s perspective, of all of the companies that they interact with online and step up to the challenge of shaping and implementing a next generation of national legislation.

And if Congress doesn’t step up, others are going to step in, and we’re seeing that happen today.  The E.U., the directorate-general of competition has become the de facto privacy regulator in the United States.  We’ve seen over 25 states step in because Congress has been abdicating and equivocating and not moving forward in the work that they need to do.

The most recent piece of legislation in California is drafted by a gentleman named Scott Wiener.  I just moved from California.  He had said that if anything, if his legislation can be a prod for Congress to actually get to the important work that we know can be done, where we’ve seen such great leadership in the past from my co-panelists here, then I’m really certain that we can actually fix this problem to move on to the next generation of American innovation and leadership in internet.

Fung:               Rob, you’ve been doing a lot of work on privacy and GDPR, the European data law.  What kind of similarities do you see between what’s going on in Europe and privacy when it comes to U.S. ISPs and net neutrality?

Atkinson:        Sure.  If I could, though, I want to touch on the net neutrality piece first.

Fung:               Please.

Atkinson:        I think, with all due respect to Senator Markey, the internet actually from the very beginning was designed for differential service.  It was never designed for one application.  The internet is not like telephony when there was one application.  There are multiple applications running on internet protocol.  Some of those applications you fundamentally don’t care if the data packets get there late, like your email.  If your email gets there a tenth of a second late, you probably are happy, because you get less bombardment email.  But if your Skype packets get there a tenth of a second late—when I try to talk to my son who’s away at college and the Skype isn’t working well because there’s network congestion, it really is upsetting and it’s frustrating.  So the internet was never designed that—there’s actually an internet protocol called “DiffServ,” which means differential service.

The key really is, do the carriers who play this important role, the ISPs, have they manipulated that or discriminated against that for anticompetitive or anti-free speech reasons?  And the answer is, yes, they have, once.  And that was a case called Madison River.  A little, teeny teleco co-op that no longer is in business because it got bought by a bigger company, probably one of your members who has committed publicly to net neutrality.  They tried to block Skype early on, and within five days, the FCC shut them down.  And this was all done before net neutrality rules.

So why is there all this brouhaha?  It’s something that’s never, ever happened.  No ISP has ever blocked speech.  So why is there all this brouhaha?  One reason is because they could, and that’s a sort of fear that everybody has, “Well how are we to trust these people?”  Maybe they could.

Then the second reason, though, which is, I think, what really drives the debate—not the “they could” fear, but “We don’t like the existing business model and industry structure, and we want it to be a regulated utility.”  So if you look at the net neutrality debate in the U.S., it’s all about Title II, which is, to get into a lot of details, the old Telecom Act of ‘96 regulating internet as it was regulating telephony, including potentially price regulation and open access so that a carrier has to sell their services—has to provide their equipment to another competitor.

There’s a really easy answer to that, and that’s what Jonathan just talked about.  Pass a bill in Congress—could be a freestanding amendment to the Communications Act, could be a whole-scale revamp of the Communications Act, but that basically and simply says, “ISPs cannot block or degrade legal internet traffic.”  Why don’t we have that bill today?

Fung:               So we’re going to come back to that, but Rob, I wanted—

Atkinson:        The answer, by the way, to be clear, why we don’t have that bill today is the net neutrality advocates do not want that bill.

Fung:               So in a minute, I’m going to ask Senator Markey to address that point, but first I wanted to get your take on the privacy issue.

Atkinson:        So GDPR, in our view, is going to have a—European privacy rule—here’s a good question for you.  Why doesn’t Europe have any real leading internet companies?  The answer is, because it’s impossible to monetize eyeballs in Europe.  Catherine Tucker, who’s a professor at MIT, did a definitive study a few years ago, and she found that ad effectiveness in Europe is between 50% to 60% less effective than ad effectiveness in the U.S.  Because in Europe—I’m a guy, obviously, and so, when I go on a website, they might know that I’m likely a guy who rides his bicycle to work, as I did this morning, so they might put a bike ad up there for me.  They don’t know my name.  They just know that I’m much more likely to click on that ad, therefore there’s great, free internet ad service I’m getting from some small little startup that’s able to make enough money to stay in business.  In Europe you can’t do that, because they’re just going to put an ad up there, and it could be a perfume ad that I would see, and I’m not going to click on a perfume ad.

So GDPR is a major, major drag, and it’s going to make it even worse.  And as we just did on a new report, it’s going to make it really, really hard for the Europeans to be able to use artificial intelligence effectively because they’ve clamped down the use of data.  Even anonymized data is going to be hard to use.  So I think that would be a bad path for us to go down.  We could establish national rules, which we’re in favor of, but they have to be strategic and focused and allow data innovation.

Fung:               Okay, so Senator, we just heard about the difficulty of trying to pass a national net neutrality law and the allegation, I guess, that Democrats are to blame for not coming to—[OVERLAPPING]

Atkinson:        Let’s be clear.  I didn’t say “Democrats.” I did not say Democrats, Brian.  I said hardcore net neutrality advocates who are pushing elected officials to not do a compromise bill.  That’s specifically what I said.

Fung:               So would you agree with that assessment, that hardcore net neutrality advocates are preventing net neutrality legislation from taking fruit?  [LAUGHTER]

Markey:           Well, as you know, 86% of all Americans support net neutrality, so that’s a pretty big hardcore group of people [LAUGHTER] who support the whole concept of nondiscrimination and net neutrality.  But, you know, we just have to rewind one year.  The Obama administration has promulgated net neutrality rules, privacy rules for ISPs.  First thing we come to, the Trump White House, House and Senate controlled by Republicans, they bring out a Congressional Review Act to overturn the privacy rules—just strip them off the books.  Is there a substitute that they’re offering?  Is there a hearing that we’re going to have now, and what’s going to be the replacement?  Of course not.  Then they want to move on to net neutrality.  That’s next.  That has to go.  And so that gets finished in December of 2017.

So the two rules that go to what are the rights of consumers, what are the rights of ordinary people, smaller companies in our country, they’re just taken off the books.  And then those who believe in those things are now told, “Well, now it’s your challenge to go to a Trump administration, a House and Senate controlled by Paul Ryan and Mitch McConnell, and now you should go and get a good bill to protect privacy.  You should go and get a good bill that ensures protection for competition, for consumers, for free speech in America.”

And so I appreciate that argument.  I also believe that they know, on its face, that that’s not going to happen and that the ISPs—and by the way, all the other companies, Google and Facebook and others, they’re not stepping up, saying we need a strong privacy bill of rights.  They’ve been fighting the European rule right from the get-go, and introduced legislation an opt-in standard for privacy, which, I have to admit, I have some difficulty in garnering support from Republicans—always have, and I expect that to continue.

So when I hear these arguments, having been on the Telecommunications Committee—get ready for this—for 42 years, [LAUGHTER] before we had any competition in the marketplace, before we broke it up, before I was the Democratic author of the 1996 Act, at that point in time, the ISPs really weren’t in the content business.  They had no idea what Google, eBay, Amazon, Hulu, YouTube were even going to be.  So they had no stake in discriminating, because their goal was really to have more companies, more individuals try to use their new broadband pipeline.  Not one American in a home had broadband in February of 1996.  So this was all new to those companies, too, and they really continued to see themselves as conduits, not content creators.  But now, increasingly, they see the money’s over here, in content.  They see what is going on.

So you don’t have to be Bob Mueller to figure this out [LAUGHTER], what’s going on.  It’s a pretty simple play to make sure that increasingly they are able to aggregate the power to themselves, limit the privacy protections, but also leave themselves with the question to upstart content providers, “Do I feel lucky?”  Kind of like, you know, Clint Eastwood in Dirty Harry.  You know, do I feel lucky that my company will be able to make it, or am I just going to have to sell out to this bigger entity?

So I hear what they’re saying, but from my perspective, we’re in for a monumental battle on these issues.  And if the Democrats control the House and Senate, we’ll then proceed on these issues, and then we’ll really be able to fare it out, what the real positions are—

O’Rielly:         [LAUGHS]

Markey:           —of all of the participants in this great debate, and I think they’re pretty much going to align the way they’ve always aligned in my long, rich history of conducting hearings—[OVERLAPPING]

Fung:               So Commissioner O’Rielly, contemplating this prospect of yet another twist in this net neutrality saga that’s gone on for years where the FCC changes its mind yet again, how does that sit in your mind?

O’Rielly:         Well, and all due respect to the Senator, I’ve only done these issues for half his time—

M:                    Thank you.

O’Rielly:         —20 years I’ve worked on Capitol Hill.  And so I have talked to a lot of my friends, and they’re not—I haven’t talked to the Speaker or the Majority Leader, but I have talked to the folks at Greg Walden.  I’ve talked to John Thune.  And they’ve begged Democrats to come to the table and negotiate.  They’ve said please, they’ve asked them, and it’s like, no, only when the rules are challenged in court—the last rules are challenged in court and then sustained.  Only if this happens, only if this happens, only this—every single time it happens, that we go through a next hurdle, and then there’s never an opportunity.  And now it’s only if Democrats are in charge of both House and Senate, and you’re like, wow, I’ve got to solve everything.  I’ve got to turn the election, and then we’ll be able to legislate on the issue.  That’s a lot of stuff to ask for.

I will disagree slightly on the privacy issue.  The FCC imposed privacy obligations only on ISPs.  Now, the Senator rightfully has highlighted that many people are left out—many companies are left out of the equation there.  And that’s what we begged—the FCC folks begged and said we have to cover the entire gamut here.  Now, there are different opinion whether you do opt-out, opt-in—I can debate that all day long if people want to have a conversation about privacy, but the idea that can only be one segment of the equation—and if you go back to the Senator’s point as it relates to the cop video, that’s an issue—if you’ve got a cop video that something is really terribly happening, your fight is not with your ISP—why can’t you put that on YouTube?  Your fight is with the platform that exists today, and if they’re not letting you do that, that’s not governed by the FCC or net neutrality rules.  That’s governed by the FTC, and in most instances, not governed at all.

And so we’ve asked—many people have said, maybe you need to be a comprehensive stroke and address everybody, but that means actually getting to the table.  And the Republicans that I know have said, please come to the table, but there’s no one showing up, and I don’t know how to solve that problem.

M:                    [OVERLAPPING]

Markey:           Yeah, I just want to say that we do believe that we’re going to win in court because this rule was finalized at the D.C. Circuit Court of Appeals in 2016, and one year later it was overturned in a Federal Communications Commission three-to-two vote.  So we think that there’s a pretty high likelihood that in court we’re going to win and overturn what the Trump FCC did, and that those net neutrality rules will stay on the books.  So that’s a view which I think is held by many people, and I think it makes sense for us to wait out that whole process.

O’Rielly:         Can’t you do both at the same time?

M:                    Can I just say—

Fung:               Rob was first, and then I’m going to go to Jonathan.

Atkinson:        Well, a few points here, Brian.  One was that now that the content companies are—I mean so the ISPs are getting into content, which makes sense because—you’re not going to like this—I was a cord cutter this weekend.  I no longer have video and phone.  I just have a data pipe.  And more and more people are going to do that.  So yeah, they’re going to get into content.

The real question is, do they have any incentive to do anything weird with that or to give prioritization, to sell prioritization for Netflix?  No.  Most average broadband today is about 20 megabits.  The average stream of a Netflix video or an Amazon Prime video or a Hulu video is 5 megabits.  10 years ago, it made sense to have a debate about whether net neutrality would be applied to video.  Absolutely not anymore.  It will never—it’s not an issue.  They don’t need prioritization, they’re not going to need it in the future.

The second issue is about privacy.  We did a study where we looked at every single major ISP in the United States and identified their privacy policy.  Every single one of them has a very robust, very clear privacy policy that lets any user opt out.  Under the rules with the FTC in authority, if any of those ISPs violated that order, their own voluntary standard, the FTC will go after them with a fairly significant fine, and they’ve done it in the past.

The last point I’ll make is I think we have to be careful what we wish for here.  The idea that we would want somehow sort of search neutrality or Twitter neutrality or YouTube neutrality—these are different than ISPs, I would argue.  I mean how many people like the idea that some of the people on Twitter who were pretty violent racists are no longer on Twitter?  I mean I think that’s probably a good thing.  But if you put in place a strict neutrality rule, Twitter would not be able to manage its own network, its own feeds.  And anybody who wanted to post any kind of trash or the most vile kind of content and speech on those platforms—on YouTube would be another good example; they could do it.

So I really don’t think we want to go down that path.  We might want to go down a path of making sure that they’re responsible, which, so far, they appear to be.  But there’s a reason why platforms manage their content because we have norms in society.

Spalter:            I just would have two points.  And the first is the stakes are truly very, very high.  We have become, as a society, incredibly reliant on, almost existentially reliant on a thriving, growing, dynamic, evolving, and open internet.  And if we really do care about our consumers and their need to know that they are going to have rules of the road going forward, then we have to stop doing this political or legislative arbitrage about waiting for court cases to be won or lost, and we have to ask our legislators to actually stand up and do the hard work of legislating.

I mention this again, it took about five years for the ’96 Act, Telecommunications Act to take form.  It was a lot of work; it was a bipartisan project, and we got it over the finish line.  In fact, the pen that President Clinton signed that act with—and he said when he did that we now have a law that’s ready for the future.  I understand that you have that digital pen in your office, Senator Markey.  Well, it’s time that we re-again develop and create laws that are ready for the future, and we can’t do it through half-measures.  The fatal flaw of the CRA, of Title II, is that it only focuses its attention on one part of this increasingly converging ecosystem that we call the internet.  American consumers expect more of our political process to make sure that we can have these sustainable protections.

And to the point that ISPs somehow are not ready to commit to those rights, well, our member companies at U.S. Telecom have been extremely clear and precise about their commitment to those rights—no blocking, no throttling, no anticompetitive hit prioritization, transparency.  Let’s move forward in a comprehensive way to structure rules through legislation that also encompasses privacy and extends its range to all companies that our consumers interact with across the internet ecosystem.  They’ve expressed these commitments in public, in advertising; and the good news is that we’re beginning to hear new echoes from colleagues at the Internet Association, from us, from Republicans and Democrats that I’m speaking to, that the time is right.  And if not now, when?  And if not us, who?  And it’s time that we actually move forward for comprehensive internet protections extending across net neutrality and privacy for all American—[OVERLAPPING]

Fung:               Senator, could you agree to a net neutrality bill that contain some of those provisions perhaps setting up a separate title in the Communications Act, importing perhaps some of the rules that apply to cable companies with program access and so forth but sort of migrating them over to the internet ecosystem?

Markey:           Again, we’re not done.  I think we have a real shot at having a vote on the House floor.  There are up to 175 members who have now signed onto the discharge petition to force a vote, the same way that they’re doing on the immigration issue over in the House right now.  So this issue is still percolating.  Again, my problem is that, ultimately, I do think that it’s a classic violation of the Administrative Procedures Act, what took place at the Federal Communications Commission.  And I do think that they did act arbitrarily and capriciously, and it is a really good shot at having that decision overturned, that rule overturned.  And so I don’t think that it’s wise to negotiate against yourself.

And on the question of privacy, yeah, ISPs, you know, they put up a privacy code that you can read, but ultimately the only things they’re bound by is what they actually put up there as their privacy rules.  And the only thing that’s enforceable at the Federal Trade Commission—let’s just say theoretically that that’s where it all moved—is if they’re in violation of what they said their privacy rules are, which may be that you have no privacy, that they feel free to sell everything that you’ve got, they feel free to compromise all that information.

What I believe we need in privacy is an enforceable right of every American to sue if your information has been compromised.  I just left a hearing, that’s why this panel was a little bit delayed, on Facebook and Cambridge Analytica.  And it’s very clear to me that Facebook was in violation of their 2011 consent decree in terms of the compromise of the information of individuals.  It’s very clear to me that in the sale of information to a Chinese firm that was on a national security watch-list in terms of their sharing of information with Microsoft and Blackberry and other companies, okay, that Americans need a real bill of rights, a privacy bill of rights.  And it has to be enforceable, and it just can’t be something that is enforced only when the company is in violation of the privacy protections which they want to provide and that’s it, because I don’t think that’s going to wash after the European rules are abided by, by all American companies in Europe.  Americans are going to wonder why 400 million Europeans get those protections and 320 million Americans don’t get those protections.

I think we’re in for a huge debate over the next couple of years on both of these issues, because they go right to the core of the future of our country.  And, by the way, AT&T and Time Warner merger is preview of coming attractions, and these issues are only going to get bigger and bigger as the consolidation of the media industry gets smaller—[OVERLAPPING]

Fung:               Unfortunately, we’re going to leave it there.  We’re out of time, but let’s take it to the green room.  [LAUGHTER] Thank you guys for joining us today.  Please join me in thanking our excellent panelists.  [APPLAUSE] And next up we’ve got our final event of the day which is an interview with Patton Oswalt.

Free to State: Patton Oswalt talks comedy and free speech:

Oswalt:            Oh, my God.  Hi.  [LAUGHTER]


Izadi:               Hi, my name is Elahe Izadi, and I am a pop culture writer for The Washington Post who covers comedy.  And I am joined here today by Emmy and Grammy Award winning comedian Patton Oswalt.

Oswalt:            Hi.  Hi, everybody.  [APPLAUSE]

Izadi:               You may know him from his comedy specials including his most recent, Annihilation and Talking for Clapping, both on Netflix.  He has appeared in dozens of films and TV shows and is very well known for playing Spence on The King of Queens for nine seasons.  He currently stars as Principal Durbin on the NBC comedy A.P. Bio that is produced by Seth Meyers, Mike O’Brien, and Lorne Michaels.  And he is also very active on political issues through his very—

Oswalt:            [MAKES NOISE]

Izadi:               Well, he likes to talk about politics a lot on his social media.  He has a huge social media following where he often offers his candid views on the current administration, pop culture, the states of the country.  So thank you for being here, Patton.

Oswalt:            Thank you.  And, thank you, for the people watching the stream.  Thank you, West Coast shut-ins for watching me right now on your laptops and for all the Twitch steamers out there, I love you guys.  I love you.  Thank you.

Izadi:               So does The Post.

Oswalt:            Oh, good.

Izadi:               So Michelle Wolf, Samantha Bee facing criticism for their material; the recent firing of Rosanne Barr for a racist tweet that she later said was a joke; the fallout for Kathy Griffin following her mock photo with a bloody Trump Mask; it seems that we’re in this moment right now where what comedians are saying and doing is part of headline news and more and more people are discussing what is in and out of bounds for satire.  So, as a comedian, how do you navigate that line?  And is there even a line?

Oswalt:            No, there is not a line anymore; the line just shifts every day.  And when you say that what comedians say and do is fodder for the media, what it actually is—it’s fodder for the media second.  What it first is, it’s scalp hunting by either side of the political spectrum, “Who can we hold up as the latest outrage?”  And then the media follows going, “Oh, this is”—They can smell the clicks, so they go where the clicks are.

So, you know, in terms of when Rosanne got canceled and then Samantha Bee was immediately attacked, that felt like that scene in The Untouchables of, “He puts one of yours in the hospital, you put one of his in the morgue,” like, it’s just this zero-sum game of trophies and, “Oh, look who we got to be knocked out.”  But it’s so not—it just shows how degraded, I guess, the discourse has become because it’s not ultimately a First Amendment issue.  It’s a corporate issue.  If ABC, which is a private corporation, feels like this person that they’ve hired is not representing them the way that they want, then they do have the right, unfortunately, to fire them.  I don’t think people should get fired over especially stuff like Twitter, which Twitter, if people were going to get fired over Twitter there is all kinds of dumb attempts at jokes that I’ve tweeted out, that my friends have tweeted out.  But Rosanne was unfortunately this prize for a big segment of, I guess, whatever the political divide is.

Now, what she had been doing though was—it wasn’t like out of nowhere she suddenly tweeted this.  She had been tweeting racist stuff over and over and over and over again.  So it’s hard to equate her getting fired as if it’s some kind of big tragedy where it’s what business does.  With Samantha Bee, where the next day Trump, the president, was demanding that TBS cancel her show, that’s the head of the government demanding a broadcast network shut someone down.  That’s actual censorship.  That’s actual First Amendment violations, as opposed to a company going, “Uh, maybe not tweet racist stuff.  Uh, you’re fired.”

You know, and then for her to—I mean, the whole thing, it was so—again, it’s people that are already sexist, racist, homophobic are after the fact trying to grandfather in their racism as if they are these First Amendment warriors where it’s like, “No, you’re not a First Amendment Warrior if you just haven’t bothered to evolve your worldview.  Just your viewpoint is archaic and the world is moving on, and you digging in your heels doesn’t make you some kind of trailblazer for free speech.  It just means that you’re fighting to be stagnant.”  You know, dinosaurs that went down in the tar pits were not evolutionary warriors.  They were not seeing, “Oh, it’s getting cold and you’re all going to die.”  So, yeah.

Izadi:               Yeah.  Well, and also, “It’s just a joke,” is often used as an excuse after the fact as kind of veiling speech.

Oswalt:            Oh, my God.  Well, “It’s just a joke,” is always used as an excuse by people who are either not comedians, or fancy themselves comedians but they’re not funny.  So you have someone like a Milo Yiannopoulos who basically ran the Ann Coulter playbook using the voice of Tim Curry from The Rocky Horror Picture Show.  And then would go, “Oh, my God.  It’s just a joke, people.”  It’s like, “No, you actually were saying just unfunny, boilerplate racist stuff.”  There was never a twist or a punch line there.  These idiots always point at Lenny Bruce going on stage and saying the N-word over and over again.  It’s like, yeah, but that was leading to a point.  There was a twist to it that showed you what he’s doing.  You’re just saying racist stuff and then there’s no twist.  And then you’re going, ‘Oh, see.  It’s just First Amendments rights.’”  No.  [NOISE] [LAUGHTER]

Izadi:               So as a comedian then, since so many people now it seems like are watching comedy, consuming comedy, and therefore having opinions about comedy and voicing them, what is the one thing—is there one thing or do you have a pet peeve about the way people who don’t do comedy, the way they talk about it?  What don’t they understand about the craft that comics know in doing it?

Oswalt:            Well, oh my God.  I have so many pet peeves about how people who do not do or at least—I don’t even care if someone doesn’t do comedy.  But comedy, we have yet to see for comedy—we don’t have a Lester Bangs or a Pauline Kael, someone that writes about us that actually knows the history and knows the form.  It’s always someone that kind of pulled the short end, pulled the short stick in the features room, and go, “Oh, I got to go cover the [SIGHS].”  [LAUGHTER] Is that you a lot?  “Ugh”?

Izadi:               Yeah, I guess.  No, that’s me.  I chose to.

Oswalt:            You know, but at least you do comedy though.

Izadi:               Yeah.

Oswalt:            So you’re not—in other words, there’s so many times when I’m being asked questions, and someone will go, “So what can people expect at your show?  What jokes will you be doing?”  It’s like, “Why would I tell you?  No, that’s not—have you ever seen a comedy show?”  Or people that say, “Well, comedians don’t write that stuff.  It just all comes out of books and stuff like that.”  Or when someone who isn’t funny but so clearly wants to be.  So many of the alt-right conservative crowd you can just smell the stench of failed comedian coming off of them.  You know, and so they’ve metastasized showbiz failure into hatred of the left, so they will then, like you said, after the fact go, “Oh, it was just a joke.  I’m sorry you guys don’t get it.”  It’s like, “No, you literally don’t know how.”

Again, look at anything Mike Huckabee tweets out.  You know, that’s a guy that he so wants to be funny.  It’s like there is this whole generation, it’s all the Bruno Kirby character from Good Morning, Vietnam, the guy that’s like, “I know in my heart I’m funny.”  First off, someone who is funny never has to say that; people that are funny go, “Excuse me.  I’m funny too.”  No.  Okay, the fact that you just said that means that you’re not funny because you shouldn’t have—other people should be saying that about you; you should never have to say that.  You know?  So a lot of these people will do that all the time.  You want to know if someone isn’t funny?  Wait to see if they tell you that they’re funny.  And you’re like, “Oh, they’re not funny.”

By the way, just like you’ve seen this before when a comedian tells an audience how edgy and dangerous they are.  “Buckle in, guys.  It’s going to get dark.”  Okay, now I know it’s not going to because you just had to warn us about something that we should be experiencing ourselves, rather than you telling us.

Izadi:               Right.  Well, the flip of some of this too is—and you touched on this as well—that comics have free speech but not freedom from consequence, which is something that comics will say a lot.

Oswalt:            Yeah.

Izadi:               But then there’s also something that Dave Chappelle told me last summer, was that more people—

Oswalt:            “Ooh, I hung out with Dave Chappelle.”

Izadi:               I know right.  [LAUGHTER]

Oswalt:            “I was hanging out with Dave Chappelle.”

Izadi:               I didn’t really hang out with him.  I literally cornered him in an ally during daylight hours in DC and asked him about comedy.

Oswalt:            [LAUGHS]

Izadi:               But he did tell me this, that more people are watching comedy now but their ears are more brittle.

Oswalt:            Oh, wow.  That makes a lot of sense.  Yeah.

Izadi:               But there are people who they love it, they …  So I’m just thinking, is it—

Oswalt:            Can I amend that?

Izadi:               Yeah.

Oswalt:            That’s so true.  And what’s also happening is more people are watching comedy, but the new number of people that are watching it have come up in a media landscape where they are very used to programing being catered to them.  And a lot of times when you go to comedy it’s not catered to anybody, it’s catered to whoever is doing it.  And so since they’re so not used to their agenda being immediately addressed in comedy, then it’s like they’ve never experienced that before of somebody going up, “They didn’t consider this experience that I had.”  Well, that’s what comedy is, because sometimes comedy is an out of control gas tank or crashing into a brick wall.  That’s kind of where the comedy comes from sometimes.  So maybe that’s what it is too.

Izadi:               Right.  Right.  Well, so in a recent GQ interview you talked about comics who blame this idea of PC culture for their decline in popularity.

Oswalt:            Yes.

Izadi:               And actually earlier today there was a conversation in the program about how the concept of political correctness can be used to undermine efforts to support equality in the name of free speech.

Oswalt:            Mm-hmm.

Izadi:               And then there’s also comics like Chris Rock, Jerry Seinfeld who have said they don’t want to perform on college campuses; it’s not a good standup environment.  What do you make of comedians who say they’re not going to go to college campuses?

Oswalt:            I don’t understand that at all.  I mean, there’s always going to be stuff that you do on—again, my early albums contain jokes that I look at now and go, “Oh, boy,” because times change.  Times change and there’s things that you say sometimes, and you just go, “Oh, yeah, I got that wrong.”  Like, even in my last special I do a whole bit where I assume the identity of these two guys.  I say one guy is from the Middle East, one guy is black, and I don’t say that the third guy is white because he’s wearing a cowboy hat and cowboy boots and that is that assumption that he is.  And someone pointed out, like, “Hey, you kind of”— and I was like, “Oh, my God.  I totally missed that I did that.”

Why as a comedian or any kind of artist, why is it now we are in this weird, fake-proud, no-apology culture where, somehow, you’re weak if you go, “Oh, yeah, I got that wrong.”  Like, I don’t know why that’s so fatal to people.  So, you know, that goes along with—and I know Chris Rock and Jerry Seinfeld.

Izadi:               “Oh, I know.”

Oswalt:            I hang out with Chris Rock and Jerry Seinfeld.  [LAUGHTER] I hang out with Jerry a lot.

Izadi:               You actually hang out with them.

Oswalt:            No, no, I hang out with him.  If you go on stage and you do a joke that doesn’t land, just go, “Oh, yeah, that joke sucked,” or, “I didn’t do it right,” or whatever.  I mean, I can’t imagine—I’m just trying to think of a situation where someone’s career could be irrevocably destroyed by having a bad college gig.  I mean, yeah, I’m sure people will—there might be some outrage if you go too far, but that’s what comedy kind of is.  And watch me; next week I’ll be at some college and my career will burn to the ground.  But, you know, whatever.  [LAUGHTER]

Izadi:               I don’t want to jinx you.

Oswalt:            Yeah, yeah, yeah.

Izadi:               Well, you know, that’s interesting though, because on the one hand that is true; you know, you fail in public.  Comedy is this craft where you’re failing in public constantly in order to perfect it.

Oswalt:            Yeah, maybe—go ahead and finish.  I don’t want to—

Izadi:               No.

Oswalt:            Well, I mean, maybe I am being a little bit insensitive, because I am in a profession where in getting good at it you get used to decades of failure and humiliation to the point where you do get a little bit of a thick carapace, if you will.  So, you know, a lot of people that get freaked out by people like—like, I get a lot of trolls on Twitter, but I’m like, “I used to get yelled at by people 10 feet from me,” so someone with an anime avatar and a fake name, that just doesn’t really—it doesn’t land with me anymore because I’m like, “Well, he’s not coming at the stage with an empty bottle.  I’m probably safe.”  You know, so, yeah.

Izadi:               Yeah.  But I also think of this idea too.  I mean, I’m going to use this term, but I’m going to redefine it maybe, of a safe space for a comic.  Where especially if you’re walking out the material and you’re trying to figure out, you need that room in order to fail in public.

Oswalt:            Yeah.

Izadi:               And, yeah, the audience can boo, the guy can come at you with an empty beer bottle, but no one is there recording it.  You know?

Oswalt:            Except now a lot of times they are.

Izadi:               Well, exactly.  So do comics need their own version of a safe space where they can fail in public, face the consequence in the moment but not have it recorded and sent out for the world to see?

Oswalt:            Yeah, I think any artist has the right to decide when what they are working on is finished.  And a lot of times if you’re judging people by what he or she is doing at an open mic, a lot of times you’re seeing very early, rough, unfinished versions of something.  So if someone is writing a novel and you grabbed the first few pages and start reading them and go, “Well, this is”—you know, like, let me finish and refine it.  It’s not done yet.

Although at the same time we are putting ourselves out there as performers to an audience that has come to be entertained on some level or another.  I’m not completely anti audience, but I’m also not completely, “The customer is always right,” when it comes to especially creative stuff, music or comedy or anything like that.  I think it really comes down to whoever is creating it.  I mean, obviously there are some instances of—okay, I’ll give you two for instances.  Michael Richards when he went off on that rant, that was in public and it was using a nuclear bomb on someone that was just talking loud.  And it was so out of line and so crazed.  And I think it came from—I don’t think he really did all that much comedy.  You know, he was a guy that did a lot of TV.  He did some, but he was just used to an audience listening to him whenever he wants, you know, whenever he’s on stage.  And when that did—I think his brain fritzed out and all this ugliness came out.  And that was insanely inappropriate, and he deserved what he got from that.

On the other hand, Daniel Tosh who was at an open mic working out material and he at one point asked the audience, “Hey, what would be a good topic to talk about?”  And someone in the audience went, “Talk about rape.”  And then he started making fun of the guy who said that, going, “Oh, yeah.  That’d be really”—like calling the guy an idiot for doing what he did.  And then someone else got angry at him for talking about it too much and then he—so that is a much more—

Izadi:               And that moment went viral.  She blogged about it.

Oswalt:            And that moment went viral, and she got angry about it.  And it was like this guy who was basically making fun of a guy for saying something like that then gets made out to be a guy making jokes about rape, which and, yes, he did say something to her that I thought was super harsh.  Like, “Wouldn’t it be funny if she”—

Izadi:               Yeah.  Oh, yeah.  Google it.

Oswalt:            But, yeah, google it.  But, again, it’s not as cut-and-dried a situation as the Michael Richards situation.  So I just hope that in this scalp hunting point for either side atmosphere we can cling to a little bit of nuance right now.  You know, whereas, you know, Roseanne was attacking a public figure and making this horrible racist comparison, Samantha Bee was trying to talk about this ugly immigration policy and was ending a long thing about it by pointing out that Ivanka was acting if not premeditatedly horribly, super tone-deaf to post a picture of you holding up your beloved baby while kids are being yanked away from their parents by your dad.  You know, so there is two-way, different things going on there.  It’s not the same thing.

And also, again, for ABC to go, “Ah, we don’t like that.  That’s not what our”—  It’s within their right to do it.  It’s not within the president’s right to tell a network, “I want that show yanked.”  That’s like Soviet level stuff.

Izadi:               I forgot to tell the audience watching us, if you want to tweet a question you can use the hashtag #FreeToState.  I’ll take a look in a little bit.  Sorry, I didn’t mention that earlier, hashtag #FreeToState.

Oswalt:            Oh, for God sakes.

Izadi:               Yeah, after we talked about all the Twitter trolls.  Don’t worry.  We’ll weed out the trolls.  Don’t worry.

Oswalt:            Okay.  No, I only want troll questions.  I want all troll questions.  [LAUGHTER]

Izadi:               Well, it’s interesting.  You talked about this notion of no apologies, this kind of culture we live in.  And, you know, Samantha Bee apologized.

Oswalt:            Yes.

Izadi:               Kathy Griffin apologized and then later said that she regretted apologizing.

Oswalt:            Yeah.

Izadi:               You’ve apologized for things that you’ve said.

Oswalt:            And I will in the future because I’m a human.  These people that are like—saying that you won’t apologize is basically saying, “I have no more need to evolve or learn.  I have become an elevated human, and I am perfect.”  That’s ridiculous.  You’re going to say stupid things and go, “Oh, my bad.”

Izadi:               Do you think comics right now—because you’ve been doing comedy for a few decades now, right?

Oswalt:            Mm-hmm.

Izadi:               Do you feel like it’s more difficult to do comedy now than before?  And are comedians subject to more scrutiny and under attack more than when you started or even 10 years ago?

Oswalt:            It was always difficult to do comedy, there’s just different difficulties.  So when I was starting out it was very difficult because it was hard to get exposure and when you did start getting exposure in the late ‘80s there was only—everyone knew there was one path; you got a clean seven minutes; you went on the Tonight Show; you got called to the couch; and you got a sitcom; and that’s it.  And if you didn’t fit in that little box, then you were just kind of adrift.  And then that all went away.  And then it became about the comedy scene now collapsed because, yes, despite all those disadvantages, in the ‘80s you could make a lot of money and not be very good as a comedian.

Izadi:               Well, is that good or bad?

Oswalt:            Well, I mean, there were advantages and disadvantage because you could go on stage all the time and develop and be paid to develop.  Then in the early ‘90s you had to get a day job if you wanted to develop because no one was getting paid anymore.  And now with the internet, yes, there is more scrutiny, but there aren’t the same boundaries that we had.  You can shape your own thing and find your own audience in your own way, which I think for a lot of—it makes for so much more originality and so much more access for different voices, people of color, people who are gay, trans, you know, and that was always this huge hurdle, if not a complete closed door in the ‘80s and even in the ‘90s.  And now that’s just not really there anymore.  And if you can’t get on a network, that doesn’t really matter; you can make your own.  There’s people on YouTube that get more views than network shows, so there has been a—yes, and again with every new advantage there is disadvantages.

There’s more access and there’s also more scrutiny and people that are going to—but, again, I think there’s going to be a generation coming up that is going to be able to weather that scrutiny better than we did.  You know?  So there’s always—look for the advantages.  And look for the evolution rather than, “Oh, my God.  This thing that used to be is now no longer.”  Yeah, that is true.  That’s gone now, but look what took its place.  Things are better now.

Izadi:               You mentioned Lenny Bruce.  People bring up Lenny Bruce, George Carlin as—

Oswalt:            And usually the wrong people are bringing up Lenny Bruce and George Carlin.

Izadi:               Well, I’m bringing them up.  [LAUGHS]

Oswalt:            Okay.  You know, but I’m saying like in defense of some really bad stuff.

Izadi:               Yeah.  Right.  Well, and people cite them as well as kind of pointing out that comedians have long been the individuals within our society who are pushing the boundaries of free speech, that that’s one of their roles in society.

Oswalt:            Yeah.

Izadi:               What do you think right now is the role of comedians in the current political and social landscape?  Do they have a certain social responsibility to kind of speak truth to power or anything like that?

Oswalt:            I think right now we have a social responsibility whether we want it or not because you can’t just go on stage and talk about dating or airline food anymore because there’s this huge—it’d be like going up—it’d be like doing a set during middle earth and not talk about the huge tower with the glowing eye, like, looking at everyone, like, “Boy, how about those hobbit villages?”  Somebody’d be like, “There’s an evil glowing eye.  Are you going to talk about it?”  So there is no—oh, God.  How can I put it?

But at the same time it feels like there is something very freeing in that, well, I mean, I guess we can say whatever we want because we have a commander in chief that’s out of his mind and is saying whatever he wants.  Although I’m a little bit—sometimes I feel like the emcee in the movie Cabaret where I’m just making all these jokes but around me the Reich is forming, and, like, “What am I doing?”  And also if you know what happened during the Anschluss in Vienna, the comedians and social commentators did not fare very well.  So I don’t know.  I mean, I guess our responsibility is to keep saying, “I’m here and I’m involved,” and try to bring some—try to topple what seem like these invulnerable figures that I think are steering us in the wrong direction.  And to quote my friend Todd Glass, “If you can mock it, you can manage it.”

Izadi:               I’m going to ask a question from Twitter.

Oswalt:            Oh, dear God.

Izadi:               [LAUGHS] But it’s actually somewhat similar to a question I was going to ask.  Mike on Twitter was asking—

Oswalt:            “Uh, MAGA69 asks”—[LAUGHTER]

Izadi:               “Is there anywhere or any line you won’t cross in the quest for a good joke, or does being a good joke mean the line was innately worth crossing?”

Oswalt:            Yeah, if it’s a good joke, if you found a good approach for it, then yeah, then there’s no line you can’t cross.  That’s the other thing, is a lot of the people that are—they’re arguing or they’re wining about, “Oh, everything is too PC,” it’s because their jokes are so weak and so obvious; they go for the obvious thing.  But if you can find a way—there was someone online.  Her name is Adrienne Airhart.  She’s a comedian.  She’s really funny.  And she has one of my favorite Twitter tweets, which is—I want to get this just right.  And she crosses a lot of lines just in this tweet, but it’s so perfectly crafted where she says, “My waiter just brought my entre to the only other white woman in this Mexican restaurant.  I understand now.”  And then there’s like a space, and she goes, “Oh, wait that’s not my waiter.”  [LAUGHTER] So she just nailed all these different levels to it.  I’m like, “Oh, my God.  That’s so”—

And, again, like, a lesser comedian or a frustrated alt-right, Pepe idiot, the [INDISCERNIBLE] comedian would do the most idiotically easy race thing and go, “Oh, just it’s things are too PC.”  No, you didn’t find the cool way into it.  You know?  What happened to finesse and cleverness?  [NOISE] [LAUGHTER] Hang on.  Did I just say, “What happened to finesse and cleverness,” and then end by going [NOISE]?  [LAUGHTER]

Izadi:               That’s a great representation of that.

Oswalt:            Oh, my God.  That’s so horrible.  [LAUGHTER] All right.

Izadi:               So, in your most recent special, Annihilation, you actually touch on this, and it’s something I like to ask comedians when I interview them, is that during the campaign and after the election there was a lot of just talk in the ether that, “Oh, Trump is good for comedy.”

Oswalt:            Oh, God.

Izadi:               Your take?

Oswalt:            Well, Trump is the worst thing for comedy right now because the longer he stays in office, the more tense and angry and on edge everyone is, so we’re going to hit a point—we haven’t hit it yet—where even bringing him up, people are just going to be like, “I am exhausted.  I don’t want to hear this anymore.”  Except if you don’t bring it up that’s also going to seem weird because people are like, “But don’t you—there’s all this—” like, they’ll see the eight horrible things he’s done, so we’re going to be in this weird twilight zone where people aren’t going to want to hear about it but it’s going to be the only thing on people’s minds.  You know?

I said this when Bush was president.  When Obama got elected people were like, “Oh, you’re going to really miss George W. Bush, as a comedian.”  I said, “I’ll give back the 10 minutes I wrote about George Bush if we weren’t torturing people and our money isn’t on fire.”  Like, it was not worth the 10 minutes of jokes that I got.  And I’m telling you, however many great Steven Colbert bits and Samantha Bee bits and John Oliver stuff comes out of this, it’s not going to be worth the warping of so many norms that keep things chugging along.  I don’t know how—I can’t imagine what comes after this.  I’m quoting Matt Christman on the Chapo Trap House podcast, “I cannot see what”—Like, I could imagine what was after George W. Bush.  I could imagine what might come after Clinton.  I cannot see what’s after Trump.  I just see a white wall of nothing right now.

And I don’t know what—so it’s not worth—if you’re making jokes about the apocalypse, ultimately none of those jokes are worth it if the apocalypse happens, if that makes sense.  [LAUGHTER] You know what I’m saying?

Izadi:               Well, and so the other part of that though is just simply from a craft perspective, that because the news cycle is moving so much more quickly now that unless you’re on one of these light night comedy shows and even then it can be difficult to have—

Oswalt:            Yeah.

Izadi:               I mean, you kind of talk about that in your most recent special too of, like, it moves so quickly that even it seems like for a standup it’s especially difficult to tell jokes off of the current political situation because of the timeliness.

Oswalt:            Well, how do you—you live in and work in DC and you do standup here.  How do you deal with it?  You’re right where it’s coming out of the mouth of hell.  How do you deal with it, like, right here?  [LAUGHTER]

Izadi:               How do comics?

Oswalt:            Do audiences want a break for it, or are they receptive to it right now?

Izadi:               What I’ve noticed from the comics in the scene here and the audiences is that I think most people, their work is somehow connected and everyone—this is a city where everyone is really paying attention very closely.

Oswalt:            Right.

Izadi:               Or they’re involved in it.  And I’ve noticed that they do want a break.  I rarely hear material about the current administration in this city, which I think is a surprise to people, but.

Oswalt:            But also you can’t do material—you have to do material more about in the abstract rather than about a specific thing that he did or said, because by the time you do it something else has happened.  I describe it in my special.  He’s sour cream in a sauna.  Like, the second—it’s just immediately spoiled.  You can’t sustain anything.  You know?  So I don’t really know.  And I just think that that’s bad for the mental health of the body politic.

Izadi:               Hmm.  Okay, I’m going to ask you a question not related at all to comedy.  Is that okay?

Oswalt:            Ooh.

Izadi:               Yeah.  Well, I wanted to ask you about The Golden State Killer.  Is that okay?

Oswalt:            Oh, yes.  Absolutely, yeah.

Izadi:               Okay.  So for those who don’t know, it’s a cold case which your late wife Michelle McNamara chronicled in her book I’ll Be Gone in the Dark, which recently came out.  And then since it’s been released authorities have arrested a man who is the suspect in this case for a series of murders and rapes.  I’m wondering if you could tell us about the moment you found out about the arrest, and how are you following the case?

Oswalt:            Here’s what happened.  HBO is doing a multi-episode documentary series about Michelle and the book and the case.  So the first day they started filming it they went with us to Chicago, Michelle’s hometown, and filmed.  We did a thing like this, a Q&A.  And then we all went to sleep because we were going to fly the next day, and I wake up and my texts have gone crazy and they’re going to announce that he’s been caught.  And the documentary filmmakers where, “What?  Oh, my God.  What do we do?  This is insane.”  And so then it became I was just doing interviews and stuff.

But what I’m doing now is I’m—obviously I’m reading about the case.  I am backing off of kind of commenting on the case or the book.  I’m letting the cops who worked on this thing for decades, I’m letting the other journalists who helped me finish Michelle’s book—because those are the professionals.  I mean, I’m—

Izadi:               You want to mention the journalists who—

Oswalt:            Yes, Billy Jensen is a journalist.  Paul Haynes is a data researcher that really helped put it together.  And then this guy Paul Hulls was the cop.  And I’m really putting it more on them because I want the focus on them and on the victims rather than the human-interest aspect of Michelle and me.  I think that’s just not the way to look at this.  And let’s look at the damage this guy did.  And he was a former cop.  Like, how did they not know?  You know, so I’m an exec producer on the series, but I’m trying to keep my face out of it as much as I can and have it be more about—

Izadi:               Right.

Oswalt:            And also, I can tell you if Michelle were alive she would want to back off of this thing right now because she was about, “Let’s give these cops the credit.  Let’s give the survivors the credit for sticking together and forming friendships and making sure this thing stayed alive,” so I’m kind of following her lead.

Izadi:               Great.  Great.  Well, unfortunately that’s all the time we have.

Oswalt:            Oh.

Izadi:               Thank you, Patton, for joining us

Oswalt:            Sorry—[APPLAUSE] Hang on.  Sorry, @WhitePride17, we’ll try to get to your question later.  Sorry.  [LAUGHTER]

Izadi:               Yeah, sorry.

Oswalt:            Yeah.  [LAUGHTER]

Izadi:               And that concludes this year’s Free To State program on the future of the First Amendment.  Thank you so much for joining us.  To check out the full video replay of today’s programming, please go to WashingtonPostLive.com.


Oswalt:            Thank you.

Izadi:               Thank you so much.