We celebrate free speech even as we reckon with the discomforts and dangers that words sometimes inflict. Here at The Post we understand that successfully navigating this tension is vital to protecting a vibrant free press.
Just last week I worked on a story about a hate crime--actually about the aftermath of some appalling graffiti spray-painted at a high school--so we could decide just how much of the offensive language we should repeat in telling the story, in the text, in the photographs, in the video.
Court and commentators alike are grappling with critical questions. How do we determine the difference between artistic expression and a true threat? Where is the line between First Amendment-protected journalism and the government's interest in defending its desire to keep some things--perhaps too many things--secret? And how can we maintain a free and open exchange of ideas online while also ensuring safety and security?
Today we are fortunate to be joined by some of the most powerful voices in this debate. We welcome Senator Ted Cruz to The Washington Post Live stage this afternoon. In conversation with The Post's Tony Romm, Senator Cruz will talk about his charge that major social media platforms exhibit political bias by censoring conservative users and content.
The Post's Wesley Lowery will sit down with Michael Render, the Grammy Award-wining rapper better known as Killer Mike, to talk about how we determine what is and what isn't protected artistic expression. And there is much more. We're very glad you've joined us.
Before we begin, I want to thank the presenting sponsor of today's program, our partner the Knight Foundation. So please join me in welcoming Sam Gill, Vice President of the Foundation, to the stage to give some opening remarks.
MR. GILL: Thank you very much, Cameron. Thank you very much to The Washington Post for convening this conversation, to the University of Virginia for supporting as well. Knight is delighted to be a part of this, and you're really in for a wonderful lineup today.
Freedom of speech in the First Amendment and the Madisonian vein is a fundamental value of the modern John S. James L. Knight Foundation, a $2 billion-dollar endowment founded by the Knight brothers which seeks to support more informed and engaged communities. It was a core issue for the Knight brothers themselves who thought acutely about press freedom in running their newspaper company, which at its time was one of the largest. Jack Knight once said, "The truly distinguished newspapers in this country are those which have dared to face public wrath and displeasure." And he said that the Knight newspaper company has, "a deep and abiding faith in our rich heritage of precious freedoms which can be preserved only to the degree that the public is at all times fully informed of the forces which seek to destroy them."
For the Knight brothers, the forces seeking to destroy our rich freedoms were the morays of society and the overreach of government. Those forces remain present today because open discourse and brutal facts are always a threat to incumbent power.
But what is most exciting about today's proceedings is that they will also address a new set of threats to the freedom of speech and the freedom of expression that the Knights probably didn't think much about and that could not have occurred to our founders.
Knight has surveyed high school students for over a decade and college students for the past few years for their views on free speech. The idea is to understand how rising generations understand this right. You can find all the surveys at KF.org.
By and large, a significant influence on their views on freedom of speech is the role of the internet. While today's young people believe in principle in the freedom of speech, they also have an acute understanding that the public square now exists primarily online. And it is not just a place where issues of public importance are discussed. It is a location where young people make friends, find and lose love, discuss the most intimate details of their lives, and form their identities. It's also where they shop, where they entertain themselves, and just joke around. And then of course there is, too, public, civic, and social debate.
This new digital reality has an impact. Our surveys have found that young people worry that anonymity in the internet risks the quality of discourse. They worry that expression is chilled by invective online. And they have strong views that hate speech should not be deserving of the same kinds of protection as other speech. So, one of the big questions posed by digitization is whether it challenges a key warrant for the freedom of expression; namely, that the marketplace of ideas should be as wide and as deep as possible. For young people this simply is not an unalloyed good because of how they experience the digital public square.
The second issue of course is that digitization means that a significant portion of important expression is happening on privately owned platforms. The First Amendment of course stipulates that it's Congress that shall make no law. Our civil liberties are about the protection of the individual from the reach of the government. So how should we regard the roles and responsibilities of what legal scholar, Kate Klonick, calls the quote "New Governors," the social media platforms like Facebook and Google? I sense that the answers will not be simple. Young people have shown consistently in our surveys that they want a public forum that balances the ability to express one's self openly with the real regard for the value of pluralism; that is, they want the forum to be open to everyone. And it's quite possible that they will accept limits to what can be said in the service of that value.
And young people are going to make the rules in a world in which government and the citizen are the only players in the matter, by rules, by norms or by laws, the new balance of power around freedom of expression will be one that likely includes real circumscriptions on the new governors, on the commercial entities that have created and now operate the public square for the 21st century.
What that balance will look like and whether it will be a bold new step for our republic or a retreat from the precious freedoms that make that republic great may well be up to the people in this room. It certainly is a moment in which ideas matter.
A conversation like this is clearly an important place to continue the discussion, and we are very much counting on all of you. Thank you very much.
Artistic Expression and The First Amendment
MR. GILL: Thank you, Sam. Now we'll bring to the stage Wes Lowery to begin the first panel. Thank you.
MR. LOWERY: Well, good afternoon, everybody. My name is Wesley Lowery. I'm a national correspondent here at The Washington Post. You guys go ahead and sit down. There's no reason for us to stand up. But I'm here, I am really excited to dive right into a fascinating conversation we're going to have this afternoon about issues of free speech and artistic freedom and about this moment we live in where we often, so many of our political and societal conversations revolve around the idea of what is acceptable speech in public versus what's acceptable in private and how do those lines bend when you are an artist and creative.
And so, I will shut up and introduce our panelists. To my immediate left is activist Michael Render, who may you know as the Grammy Award-winning rapper Killer Mike. To his left is the author and musician Simon Tam. And beyond him is attorney John Elwood, who has argued nine cases before the Supreme Court. So how about we give a quick round of applause? Thank you all so much for being here today.
Before we get started, I wanted to remind everyone that you can tweet questions, because eventually I'll run out of good ones and I would love to hear yours. And so, if you want to use the hashtag #PostLive to tweet questions and also make sure to live tweet out all the smart things that they say so we can trend and whatnot. But if you send your questions, I get them on this iPad in my hand, and I'll be happy to cede the floor to you all if you hear anything you like or want to hear more about.
But I wanted to get started, Mike, to talk a little bit about that case of Jamal Knox and this amicus brief you and several other prominent artists signed, Chance the Rapper, Meek, Yo Gotti.
MR. RENDER: Luther Campbell is important, very important to mention in that too.
MR. LOWERY: Yes, certainly. And so, for folks who may not know this case, Jamal is a Pennsylvania rapper, and they convicted him of making terroristic threats and witness intimidation after he wrote a song called "Fuck the Police." I don't know what my beeping and censor is here at Post Live, but hopefully that's okay. And in it, you know, the song was an homage to NWA's '88 song, obviously the same name, but also spoke to some of his own personal experiences.
MR. RENDER: Yeah.
MR. LOWERY: And they charged him and convicted him of a crime. But if you want to talk a little bit about how you got involved in the case, but also about some of the bigger thematic issues here.
MR. RENDER: Erik Nielson is a friend of mine, and he's a tireless advocate on the behalf of our First Amendment rights, and in particular in hip-hop. If a kid in hip-hop disses a politician or a policeman, it's taken a lot more seriously than if Johnny Cash sees a man and shoots a man in Reno just to watch him die. It's less scary when it's an artist that looks like the majority, apparently.
So, Erik fights this all the time, and he fights on the behalf of people in my culture and hip-hop. And he asked me to co-write with him. He asked other guys like Meek and Chance to get on board. And I went and sought out the only other person that I'd honestly ever seen fight the federal government, go all the way to the Supreme Court and win in terms of freedom of speech, and that was Luther Campbell, who after "Fuck the Police" by NWA, which was a song that raised all type of ire, after that, he was charged in Broward County with I think obscenity or something, and he fought and won. So, these things are still happening now.
What we're finding is rappers who have name and prominence are less likely to be prosecuted for things they say. So, if you get Killer Mike, one half of Run the Jewels, that says "fuck the police," it's radically different than with a kid who's just doing it at home and loading it up on Facebook.
Now what Jamal did was, he did name two policemen in particular, and the policemen that he names I think had in some way assaulted him or his friend to the point of injury. And essentially what I saw, when I first read the case, was that this was just a kid who was angry, who knew he couldn't shoot a cop, knew he couldn't fight a cop, knew he couldn't go stab a cop. Hell, how would he even find a cop? It's terribly difficult to even find out where a policeman is.
And because he had the courage to say, "This is what I felt like doing." Like I can feel like hitting my mom, but if I hit my mom, my mom would have beat the shit out of me. So, he voiced his feelings. And because he voiced his feelings, he has been prosecuted and is now serving time in the United States penitentiary.
And the scary part about that is, to me, at what point do my feelings--are they not equal to the feelings of others, or the feelings of the majority? And at what point do I get prosecuted just for feeling a way and then having the courage to say that I feel this way? I could say--a bunch of us have said, even to the people we love, "I just want to kill you." Well, if we let freedom of speech go out the door with, "It hurts my feelings," I believe that we put ourselves in an environment where feeling something and saying it vocally, publicly, could potentially get any one of us put into prison. And what's really scary to me is that laws like this usually affect people who look like me first and worst.
MR. LOWERY: Well, and I want to drill into that a little bit, because you brought the example earlier of Johnny Cash. I remember Ice T making the example.
MR. RENDER: "Cop Killer."
MR. LOWERY: Exactly. And he said, “If you believe I'm a cop killer, you must think David Bowie is an astronaut," right?
MR. RENDER: Yeah, absolutely.
MR. LOWERY: "Like, clearly the things I'm saying are not literal." How do you think the stigmatization of, especially when you talk about hip-hop artists, folks who are going to be predominately black, who might not look like the majority of the nation--
MR. RENDER: Yeah.
MR. LOWERY: --certainly might not look like majority of law enforcement--
MR. RENDER: Yeah.
MR. LOWERY: --how do you think that those--that that portrayal and also those misunderstandings, sometimes, how do you think that feeds into this?
MR. RENDER: Well, let me say, first of all, I'm a son of a police officer and I'm a cousin to two great police officers now. I have a police officer that I believe is a captain in East Point down in the municipality of Atlanta, and I have a cousin that's a sergeant, is SWAT team in Atlanta. So, I am supportive of--and I'm also a member of PAL, about to be on the Board of Directors for Atlanta Police Athletic League. So, I am not against police officers. I'm not against people who vote, and vote for the people who govern them having police officers in our community.
What I am against is the police officers being an occupying force. And I view songs like "Don't Die," in which I took a scene out of "The Professional," and the real life of Fred Hampton, where Fred Hampton was assassinated in his apartment, and if you look at the movie "The Professional," there was a scene where policemen entered his apartment to kill him, and he resisted. So, I took the story of Fred Hampton, that scene, and kind of meshed my own story of how I got away from cops trying to assassinate me for being a person that dared to speak freely. And, you know, it was fantasy, it was fun. But had I been Jamal, I might be in jail for that. But it's only because I was already considered a professional and a Grammy winner that people were just like, "Oh, man, the courage it took to do that, the imagination."
It's tricky for me because I understand the need for law enforcement. I have a personal preference of being policed by people who either look like me or people who are from communities like mine. I think that a police--are seen and have become an occupying force in minority communities because they're hiring people who look like the majority. They're hiring people who do not have exchange, dialogue, or experience with the people they're policing, and the police are being underserved in that. Many of them are rolling one patrolman to a car instead of two. Many of them are being trained too quickly. It takes a 19--what?--it takes year-and-a-half to be a barber, about six months to be a cop. It should take a little longer to be a cop. You have to go through more protocol for engagement as a United States soldier occupying another land than you do as a police officer.
And basically, people in my community are tired of seeing a police officer get away with what they believe is state-sanctioned murder. So, beyond talking or beyond rapping or beyond artistically saying that, what I'm afraid is that we are setting up an environment in which not only the public still feels that they're in danger--and they really are--and I'm not just talking about the black public, just the general public. I think that we are getting to the point where people are going to start pushing back. And that makes me afraid because, again, I have police officers in my family. I'm a supporter of good policing and good police officers. But I see that the most dangerous times in the communities now are when a young black boy, a young black girl on the ground and there are three, four cops that don't look like them manhandling them in a way they shouldn't. And my biggest fear is that in this country what we're going to start seeing is bullets flying, not from policemen's guns only, you know?
So, I think that, in matters of freedom of speech, I think that artists' freedom of speech should be protected. If you're not yelling fire in this room and causing people to get injured because they're running out, I believe, you know, you should be able to say it. I believe what Noam Chomsky said was true, that if you don't believe in freedom of speech for those you despise then you don't believe in it truly, yourself. I think that we are allowing agents of the government to murder innocent Americans--and not always innocent, but murder Americans without due process. And I think that if that does not stop, you're going to see more pushing the lines artistically. And if that doesn't stop, then I think you're going to see violence.
MR. LOWERY: Certainly. Now in this case, the Supreme Court declined to bring up the case. But I wanted to being John in here because he's worked on a very similar case, and this was the one of Anthony Elonis, right?
Can you talk a little bit about the contours of that case and how it kind of it relates to the conversation we're having here and these issues of free speech and how it relates to artistry?
MR. ELWOOD: Sure. Anthony Elonis was somebody who wrote, after his wife broke up with him, he took to Facebook and wrote in a style of rap lyrics, you know, saying not very kind things about his wife, including describing killing her and things like that. And it was almost uniformly posted with little disclaimers saying, "You know, this is just me working things out. Don't take it seriously."
But he was prosecuted successfully for making crimes--in the case, he was prosecuted under a theory where the prosecutor actually said in the closing statement it doesn't matter what he thinks. What matters is what a reasonable person would think. And so, we argued in that case that you have to show an intent to threaten more or less, and at least knowledge that the person who is reading it would feel that their safety was at jeopardy and you did it anyway.
My understanding of the Jamal Knox case--and believe it or not, I looked over my notes for argument and I had Jamal's case in my own binder because I knew it was coming down the pike. And my understanding of Jamal Knox's case was he argued kind of the opposite. They convicted him of intent to threaten, and he was arguing for the opposite, that a reasonable person wouldn't have taken it as a threat. And I think that's one of the reasons why they perhaps didn't take his case, is it was a little unusual in that regard.
But I also think there may be more to it in that, you know, one of the things that came up a lot in my argument for Elonis was a different standard. You know, we have negligence, which the Supreme Court has said negligence isn't the standard, but they haven't said what the standard is. And there seemed to be some interest in recklessness, which is the idea that you know that there is a risk that people will be threatened by it, and you do it anyway. And we were arguing for the other end of the spectrum, that the strictest standard of the spectrum, which is you know that they're going to feel threatened and you do it anyway. Like, that's the reason why you're doing it. And I think one of the reasons why the court might not have taken it is because the Court is a mess on this, that they were all over the map about where they were going to go, and I think they might not have been in that much of a rush to get back to it because they just don't know if the votes would shake out neatly and they'd have five votes, a majority for any one position.
MR. LOWERY: So, what is the current standard as far as the case law is concerned in terms of when something like this is prosecuted?
MR. ELWOOD: It's all over the map. It's all over the map. The only thing that has been established is it can't be negligence. Basically, the standard isn't that if a reasonable person would feel threatened by it, you can be prosecuted. But there's a split, all over the place, among the Federal Courts of Appeals and among the State Supreme Courts. So, I can't say anything other than it's a mess.
One thing though – and this is my pitch for the highest-end standard, that you have to show intent; is that the state standard in California, New York and Texas – big states with lots of people – all require a proof of intent, and no one is saying they can't protect their citizens.
MR. LOWERY: Well, and how might this theoretically play forward? How is it different if the person you're allegedly threatening is a public figure, is someone who works for the government; it's not an individual citizen per se, but is someone like a police officer or an elected official?
MR. ELWOOD: I think it's probably more likely to be taken as not a serious threat. I mean, it depends on the context. But if you do it publicly and it's about a public figure, it's less likely to be viewed as a threat. The case that inspired the true threats exception to the First Amendment involved a draft protester saying that if anyone ever gave him a gun, the first person he would shoot, you know, take aim at would be LBJ, and the court said that that was not a true threat because of the context.
And I think that is true as a theoretical mater, but there are a lot of people who do not take a joke well, and in my experience, police do not take jokes well. Elonis generally was doing okay. Like, literally this guy would post things online and people would like the things he would – not only was he not reported, but people would like them, and it wasn't until he was visited by the FBI and then wrote his rap lyrics about that, that their sense of humor expired and he was arrested the same day.
MR. RENDER: It's amazing. Eminem built an entire career --
MR. LOWERY: I was thinking that earlier.
MR. RENDER: -- of saying he'd kill his mother and ex-wife. Very good rapper, but he essentially did the same thing. He just made millions of dollars and never went to jail.
MR. LOWERY: Yeah, I don't think anyone ever showed up at his door.
MR. RENDER: Yeah, if I threatened my wife, she'd kill me. (Laughter)
MR. LOWERY: It'd be a whole different panel.
MR. RENDER: Yeah.
MR. LOWERY: Simon, you're the only one on the stage I think who on the briefs around these specific first Amendment grounds actually had the case brought taken up by the Supreme Court, right? Can you talk a little bit about the Slants and the contours of your case, and then we'll get into some more questions?
MR. TAM: Sure. So, I applied to register a trademark for the Slants, my band, but the government ended up not liking that. They quoted a 70-year-old bit of law called Section 2(a), the Lanham Act, saying you can't register marks that the government considers scandalous, immoral, or disparaging.
Now in this case they said the term Slant was disparaging, but only when it was used by an Asian-American band. So, in other words, they said I was too Asian to use this term. Seven and a half years later, I was before the U.S. Supreme Court arguing for our rights. And actually, the federal courts rejected all of our other arguments, even arguments saying that, look, the Trademark Office is using our race against us. They didn't care about any of that. They just wanted to talk about the First Amendment. And when we brought up the fact that it was chilling speech, that the law violated our First Amendment rights because of viewpoint discrimination, it got taken up by the court and that's where we won unanimously in 2017.
MR. LOWERY: So, your efforts here were essentially to kind of reclaim a slur, right? You guys were ironically using this.
MR. TAM: Yeah, in some ways. And I would also argue that the term slant is not inherently racialized. Like you can talk about a perspective, or an angle, or that sort of thing. But according to the government, because the speaker, because I was Asian, all of a sudden it became racially charged.
MR. LOWERY: And so going back to this kind of true threats distinction, how do you think the government should try to adjudicate these questions of how often as an artist, as someone who is creating art and putting it into the world, what should the role of government be in moderating it then, if at all?
MR. TAM: I think extremely limited, if at all. I mean, here's the thing. Like, art is meant to be on the edges, to push our boundaries, to cause us to question. It oftentimes serves as a mirror. And what we find is artists, particularly artists from marginalized communities, we don't get the same benefit of the doubt as others. You bought up Eminem here. A white rapper is treated much different than a black rapper or a brown rapper. We found the case with whether it's rap music – in particular rap music because of music produced by black and brown communities tend to get treated differently than music produced by white communities, genre and otherwise, what we find is that it's because those in power, they just simply have different experiences. They might not have the same intention. Their intention might not be to suppress speech or to discriminate based on people's race. But when you don't have that lived experience, when you don't understand what it's like to be in a community that doesn't experience the same privileges and rights as others, you're not going to provide that benefit of the doubt. You can't connect with that same life experience.
MR. RENDER: That's why I don't say that dumbass term n-word. It's dumb. The word is nigger. It was nigger when it was on The Jefferson's. It was nigger when it was on All in the Family. It was nigger when it was on Sanford and Son. And because of that freedom in art and television, I saw as a child racism challenged on television in a radically different way than it is today. It's swept over today. It's covered over. It's something we don't talk about it. We handle it much like a middle-class family who doesn't talk about their problems, versus confronting those things. And that an artist's job. An artist's job is to say why not, to push the edge, to push the limits.
And I'm just—I’m tired of losing as an artist my freedoms of speech based on the whims of white America. It seems to me that to be white Anglo-Saxon and protestant in this nation gives you the ability to make or change the rules at will. And the rules just need to be the rules and fair for everyone.
MR. LOWERY: Now, Mike, you've talked previously about two different elements I want to drill into here, the first of which is this idea of; and Simon, you were just talking about this too, the idea, the power of art to kind of right injustice or to force conversation to bend and move a spectrum and why it's important then for artists to be able to express things that the mainstream may feel uncomfortable with. But then also – and we've been talking about this already as well -- kind of a double standard. You think about things such as like outlaw country, which are as violent –
MR. RENDER: Which I love.
MR. LOWERY: -- as any other genre, and yet – and I can't recall the last congressional hearing around decency in country music, while we can think very specifically about cultural touchstones in our history where rap music kind of came under this fire.
MR. RENDER: Yeah.
MR. LOWERY: And so what do you think is the importance of these genres and the freedom of artists to be able to kind of speak freely, even if that freedom leads to what some people might find offensive, as it relates to kind of righting of injustices.
MR. RENDER: I mean, everything in art is going to offend someone. I mean, you wouldn't have fig leaves over statues in the Louvre if someone at some point hadn't said, oh, those statues that were originally sculpted with penises all of a sudden need to be covered now because I am offended. For me, I think it's just important that as Americans, I can remember Miss Ellison [phonetic] who I was deathly afraid of and didn't like as a teacher at first. She taught me to love our Bill of Rights and Constitution, because that was the first time I realized fair is fair and what's for everyone is for everyone in terms of rights and privileges. Well, we see that's not happening in the world. We know that not only poor people, not only black people, not only minorities, we know that exclusively rights get kind of given more or less. We know that if your cousin looks like Waylon Jennings or Willie Nelson or Johnny Cash or Kris Kristofferson, he has a better chance of beating his case than if he looks like Snoop and Redman. We know that with national decriminalization of marijuana now, a lot of people are going to get credit for it, a lot of activists, a lot of workers. But I can show you a line that leads straight back to Cypress Hill, that leads straight back to Snoop Dog, that leads straight back to people like Rick James.
And if it's not duly acknowledged publicly, if the media isn't pushing a line of that narrative, if the media isn't giving us that freedom, if the media treats rappers differently than they do country artists, then you're going to see a galvanization of what the prejudices that we already see, where if you look like one, two, or three, your case be tried radically different than say if you look like John, who doesn't look like a rapper, but he's slick. (Laughter)
MR. LOWERY: John, where do you think – since you're on the hot seat now, right – where do you think things sit in terms of freedom of expression. A lot of our political conversation sometimes paints these conversations as if it's in a crisis, right? Campus free speech issues, or frustrations about a cancel culture or censorship. As someone who works kind of intimately in the law on these issues, where do you think things fit right now? I do think sometimes we all have a bias to think the thing in front of us is the worst it's ever been and we can't imagine it ever being worse. But where do you sit as someone who is kind of engaged in the case law and knows what's coming down the docket?
MR. ELWOOD: Well, as far as threats go, as I say, it's kind of a mess. And I think there are two ways in which minority viewpoints are not given appropriate weight. Like, and one is that they are more likely to be viewed as a threat. And then secondly and relatedly, they are more likely to think so what is this speech is chilled? What's the value to it? And that's a question that I was actually given during the argument. I mean, Elonis is white, but they said what's the value to this speech. And I had to try to tie it back to more conventionally politically speech of, you know, the tree of liberty occasionally needs to be watered with the blood of tyrants, and abortion protester speech, and things like that. I had in my back pocket; I had a few examples because you try to wrap yourself around political speech because nobody cares about if a few rappers are deterred.
But you know, as a whole, I can't even get started on campus because I have a 17-year-old who is starting to interview now, and I kind of live in terror. It's all incognito to me.
MR. LOWERY: Now what do you guys think about the difference though between the government suppressing speech and the conversations we now have about people like to use any number of terms, about whether it be a cancel culture or the online mob—the sense that we do live in a time where a lot of people have the ability to weigh in immediately. They might be mad at Mike already about something he said, and he might have been canceled in the time we've been on this stage.
MR. RENDER: You know me.
MR. LOWER: But like how do you all sort that out, right? Because on the one hand there is a sense of, because everyone has the ability to weigh in so quickly at anything that offends them, a sense that there can be a kind of a building of momentum any time someone says something that might be offensive or out of line with the current conventional wisdom. On the other hand, if I'm offended by something, is it not my right and free speech to say, hey, cancel that TV show? How do we weigh the rights of the individual speaker versus the rights of kind of everyone?
MR. RENDER: I remember having--I don't know the total answer, but I know that you've never heard a more ridiculous argument than a black man, me, arguing with my white friend and I'm arguing pro-Roseanne Barr. And not that I'm any fan of the things that she said or comments that brought her to get her show canceled. My fear was – and like Chomsky said – if you don't believe in freedom of speech for those you despise, you don't believe in it at all. My thing was what she did was her freedom of speech. She lost her job for it. And I was telling my friend, who is a huge Colin Kaepernick supporter, well, so essentially, you're telling me Kap should have lost his job too. And he says, no, it's different. I was like, how is this different? And he said, well, she made millions of dollars. She should have known just to shut the F up. And I said that's the exactly same thing Sean Hannity says about Kap.
So I have to understand that in my want for freedom of speech for everyone, I have to understand that if I'm going to support Kaepernick, who wore socks with policeman police portrayed as pigs and people got upset about that and said he should never be able to come back, then I have to say about the woman who commented that another woman of African-American descent looks like a movie character that was not flattering, I have to say to myself then, according to the private businesses that own both, both of them broke rules, both of them are out. But I don't believe either one of them should be out of a job. I honestly believe both of them should have a job.
Now what should end the job is when the ratings drop, or when your stats drop. So, if you're throwing that ball like you should and San Francisco said you're out, okay, cool. If you weren't bringing the ratings to ABC and they say you're out, then that's cool. But for me, I'm willing to be uncomfortable because I know tomorrow, I may say something.
I've personally said things that people didn't like, and two weeks later the people that didn't like what I said, were on the whipping post themselves getting whipped. Some of the people who didn't like stuff I said months later were exposed as being sexual predators. So, you know, it's a lot of people who don't like what you say. But to me, it matters that you're able to say what you say so I can honestly (unclear 00:38:50) where you are and I can decide whether to cancel you. I don't need the whole world for my perspective to cancel you. Because if that was true, I never would have heard NWA. I never would have heard the Ghetto Boys (phonetic 00:38:59). I never would have read the autobiography of Malcolm X. I never would have known what the Black Liberation Army was. Half the things from my childhood that formed me into the man I was I never would have been able to be exposed to because those things would have been labeled everything from hate speech to black identity extremists.
MR. LOWERY: Now I want to remind everyone again that I hope you're all live tweeting. I haven't checked my phone the whole time I've been up here, which is the longest I've gone today. But make sure you're sending your questions to us at #PostLive. I've got a question from Matt [phonetic]. I'll start Simon on this. He's asking are there artists that are actively kind of hurting the argument in favor of freedom of speech, or is there something an artist can do? Can it ever go too far? Are there people who, even if what they're doing is speech that should be protected or is protected, something that as artists yourselves you might say, well, maybe I wouldn't have done that?
MR. RENDER: Well, going too far is going to be determined by your personal experience too. You know what I mean? So, what is going too far? What is the litmus test? What is the bar for going too far? I believe as an artist it's my job to challenge at every step of the way. I get in more arguments about my wife for hypotheticals than anything else. Like why isn't polygamy legal? You can't really say that.
MR. LOWERY: That was the one you chose?
MR. RENDER: Yeah, I mean, I had to take a shot at it, you know what I mean? Am I simply going to be persecuted by what I suggested since I've been a kid, my first-grade teacher was like, if he felt it, he was going to say it? So, I feel like artists are not in charge of seeing the bar and stopping at it, or seeing the edge and stopping. We're in charge of jumping so that other people know it's safe to jump or not. But our job is to jump. It is to push the limits.
MR. TAM: I think it's so important to recognize that when it comes to freedom of expression and when we 're talking about the First Amendment, we're really talking about protection against government punishment, government backlash. Like, we're talking about protecting the sensibilities of the public, but we haven't really thought about this idea. What does it mean if the government says your work as an artist is hate speech?
MR. RENDER: Absolutely.
MR. TAM: What does it mean when the government says you're racist?
MR. RENDER: Absolutely.
MR. TAM: Like they told me and the general public that my Asian-American band that does anti-racism work on behalf of the U.S. government by the way, was racist. There are unintended consequences.
And yes, the Supreme Court resolved it in my favor, but there were many years where it affected my art, it affected my livelihood. I had to walk away from being a full-time musician to fight the government to tell them that they were wrong. Like, there's all these others kinds of things that I think ought to be considered.
Now in terms of like artists and that kind of fine line, I think it is a very subjective thing in nature, and that's why I do believe in the marketplace of ideas, because to some people some words might be racial slurs, it might be extremely offensive. But for other people, especially those people in those communities, those could be very powerful forms of expression and self-empowerment.
And my argument is like there would be no such thing as a racial slur if we didn't live in a racist society. Deal with the culture, not the symptoms of a racist society. Deal with those root problems first.
MR. LOWERY: Now, Mike, I want to get back. Jumping off of that, I want to get back to something you were talking about earlier, where you were saying, you're fine if the ratings drop, all right, cancel the show, right, and drawing a distinction between people kind of talking with their pocketbooks and what they want and what they don't versus the sense of someone is trending on Twitter because they said something rude and now the show gets canceled.
MR. RENDER: Yeah.
MR. LOWERY: So, I remember one of the things people got mad at your about was one of the Bill Maher outrage cycles a few years ago, where Bill, in what I can only presume he thought was a joke called himself a house nigger.
MR. RENDER: I thought it was a pretty good fucking joke.
MR. LOWERY: I didn't like that joke.
MR. RENDER: I did.
MR. LOWERY: All right. Some people were offended by it. I was.
MR. RENDER: To put some (unclear 00:42:45), he's light-skinned too, so he might have actually called him a house nigger.
MR. LOWERY: Right, it spoke to some more personal experience, so it was different.
MR. RENDER: Yeah, my dad likes that joke, me and my dad.
MR. LOWERY: You understand.
MR. RENDER: Yeah, I tell people all the time though, if (unclear 00:42:58) somebody in the house didn't know to tell me. We couldn't have won the war without (unclear 00:43:02). But the joke didn't bother me as much because he's been a tireless advocate on the behalf of African-Americans that would not have the opportunity to speak at other places. When you look at from the 90s the loss of late night African-American TV, Arsenio gone, Magic's not good show was gone, a few other late-night talk shows were gone, where else would you see Cornel West? Where else would you see members of the Me Too movement? Where else would you see Killer Mike? Where else would you see O'Shea Jackson, better known as Ice Cube? Where else would you see these radically different than the norm African-American experiences or voices if it was not for Maher? So, he had been more of an advocate with and for us than not. So, I could take a dumb joke from an ally and just tell him that was a stupid joke. But I didn't want to see his show get cut off the air. Because what happens to Michael Eric Dyson? What happens to Nina Turner? What happens to all the people who from my community may have a voice that provides a tertiary train of thought that is not given to them by their political party or members of government that speak directly from our community? If we lose him, we lose one of the last stages to do that.
So, I wasn't willing to join the take Bill down protest, because to me it was stupid. If it was just a bad joke, it was just a bad joke. I think that we have now come to a point where there's a political meme, I think it's called Savage Memes or Ugly Memes, on IG it's maybe called made by Jim Bob or something. But people got angry with me because I complimented one of his memes. It was funny to me. I laughed. I didn't even agree with it. He made me a meme that was not complimentary of me, but I appreciated his perspective because it was different from mine and it forced me to think.
But people who follow me got angry because I laughed at a guy, they didn't like the joke. Whenever we get to the point where we're like three-year-old's and we can say you hurt my feelings and I'm going to cry, my mommy's going to punish you, the government, me and mommy or daddy, we're treading dangerous ground.
I love the U.K. It's a great place to visit. The fact that they can designate what's hate speech now, the government can tell you what's hate speech, a government that taken from countries, robbed and looted, has not returned gold to Africa, is not giving natural resources back, can tell me what's hateful. I don't trust that. I don't trust government enough to be morally sound, to be apathetic enough – empathetic enough – well, I trust them to be apathetic, not empathetic enough. I don't trust any government enough to give up that much of my rights.
And I think that – because I have children. I have a 24-year-old, a 21-year-old, a 17-year-old and a 12-year-old. My biggest fear for their generation is that they're going to get what they say in their feelings to the point that they give their power over to government. Because in giving your power over to government, you start to give your voice over to government, you start to lend yourselves to the whims of government, and that's a very dangerous thing to me. How long before African-Americans are outlawed for saying the word nigger? Because literally, on TV now, they'll try to tell you to say the n-word. No, fuck you. I can say nigger. Like my grandparents suffered through this. We have captured this word. We have turned this word into whatever terms of endearment, whatever we want it to be. It is mine now. I can't tell my gay uncle what to call himself. He has endured that struggle. I can't tell this man that he can't name his band. His people have endured his trouble. So to me we have to get to a point where we're willing to trust the groups that are smaller than the majority, we're willing to trust individual freedoms over the rule of government, and which we can also listen to people cry and moan and bitch and complain and not go create a new law about it tomorrow.
MR. LOWERY: Well, I think that's a really good segue way back over to John about this idea of the laws and how does the government; in a time when people can express their frustration and their outrage and when we are having; we're in a country that is shifting and changing and our cultural norms are changing and our mores are changing and people are being confronted with things they might not have seen or thought about previously. How does the government interact with that? How does the government regulate obscenity, to the extent it can – or should it? But beyond that, how does it do so in a way that doesn't, as we said, allow the government to decide what's hate speech and what's not? Because some of us maybe are a little skeptical of the government's character on that.
MR. ELWOOD: I think this is a point that someone might have made. I mean minimally, I view it as a really performing a minimal role because state compulsion is kind of a terrible thing to put, and particularly for something like free speech.
And I think especially at this point where basically the government has virtually a perfect way of figuring out from your phone; this is my phone gesture, that you know exactly whether you had the wrong mens rea. I mean, I don't think there's any reason why you can't limit threats at least to actual intent to put someone in fear, because you can find everything on the phone. You can prove up exactly what was going through their head. You can probably find some texts like 30 seconds beforehand saying watch this, that there's no reason why you can't make as free of a marketplace as possible for speech.
MR. LOWERY: Of course. With that, I think we’re going to wrap up and hand off to our next panel. But can you guys do me a favor and give me a quick round of applause for this excellent conversation? (Applause)