the website . .

i'm here to moderate the discussion with one of my favorite authors from new york here. she is absolutely fabulous and before we get going, by the book. i want to first in knowledge the law firm of mcdonald and lacey for sponsoring this event and a shout-out to one of the local fantastic firms here in tucson but especially notable for all of the public service and pro bono work they do consistently over time. it's a premier firm and we are grateful to them for making events like this possible. please turn off your cell phones and i want to tell you upfront the author is going to be available shortly after the session so if you go out of the union and make the right turn to the book signing area, mr. rosen, professor rosen will be at 10.

we were told to keep the introduction tied. i could go on at length with the highlights are he is a professor at george washington university where he teaches constitutional law. you probably know him oath as the commentator of legal affairs and in particular with the new republic since 1992. he has written for "the new york times magazine." you can hear them occasionally in "the washington post" and the author of six terrific books currently working on a new one with justice brandeis. he is consistently erudite, thoughtful. in terms of zeroing in on issues in a way that is both accessible to sophisticated laypeople and spot on for those who are familiar with the legal issues which is an extraordinarily difficult thing to master. thumb -- some years ago he was her guest at the marks lecture and i can tell you as somebody who was responsible that he is

almost one of the most gracious people ever to come to tucson and we are very delighted to have this public intellectual and writer back here with us. jeff i want to talk about -- [applause] you caption this the innermost chambers of the supreme court that we are going to focus in particular this afternoon in a little time we have on this most recent book and that is co-edited with benjamin whitty and titled constitution 3.0, freedom and technological changes. it's a project out of the brookings institution project on technology and the constitution. here is the focus of it. the multiple ways in which technology is transforming who we are, who we think we are, how we interact, surveillance, ways in which we can identify you, locate you, look inside you and

all with respect to the legal implications in particular with respect to constitutional implications. he has been working in this venue for sometime in this latest book builds on the insights that are in this book, the naked crowd which he published in 2004 and the unwanted gaze which he published in 2000. freedom and technological chip of change covers a lot of ground. surveillance airport scans, cookies, brain imaging, dna testing, 23 you and me. let's start with the internet and social media and i'm going to start. who is the boss of us these days? people think of the first amendment invasion or restrictions on their freedom of speech is coming from the government and in fact the constitutional law, that is where it is located. the there is a really good question right now what you

examined and look at. of whom should we be more afraid, the government or an unregulated marks zuckerberg or the -- formerly of google? the wonderful question tony and first let me say how thrilled i was when i learned you would be moderating this conversation. at such i had such a wonderful time when i came to the university of arizona five years ago. we bonded over your wonderful constitutional scholarship in the serb per job he did dean and i know i couldn't be in better hands for this conversation. [applause] so yes, who is to fear most? what we do ladies and gentlemen living in a world where lawyers at lowland facebook have more power over the future of private free speech than any king or president or supreme court justice? this came home to me a few years ago when i went to google and had a chance to interview the

woman who has to be considered the free-speech adjudicator for the entire world. her name was and it still is although she's no longer playing this role, nicole wong and her colleagues called her the decider. [laughter] she was the one who literally decided what went up in what came down not only on google.com, not only on each of the more they 150 search engines that google runs in germany and france and around the world but also on youtube which google owns so nicole wong was the one that was woken up in the middle of the night by frantic calls from the turkish google employees who learned the turkish government lost google in turkey because their greek football fans had a habit of saying become all editor was which is not true but it's illegal in turkey. so these football fans cut these youtube videos and nicole wong has to decide is this really illegal under turkish law?

is it on the borderline of political criticism? she is afraid of the safety of her employees on the ground. meanwhile she doesn't. >> turkish and doesn't know how to get to this district judge in turkey who was ordering the google be blocked and multiply that by criticism of the thai came which is illegal in thailand or the holocaust denier material that is illegal in germany. vitesse was so overwhelming that she actually fell that wasn't a job she does she could handle are wanted and she left recently for greener pastures. what to do in this world and that is free-speech. what to do in this world where after all the constitution says congress shall make no law abridging freedom of speech. the fourth amendment says the right of the people to be secure in their persons, houses against unreasonable searches and seizures shall not be violated. the fourth amendment only binds the government does not find mark zuckerberg. one of the persistent games that

a bunch of great authors that together and explore in the collection is how can we translate constitutional values into world of new technology where the codes attrition does not formally applied? >> when you think of the minot area and the advent of television and anticipating this was going to be a potential huge information capture. >> yes, men know is a good reminder. this is the famous federal communications commission chairman who warned that television was a vast wasteland and he proved to be correct. [laughter] but his scruples look almost quaint. network television is a veritable dublin at the compared to the cacophony on the internet and of course new the minot's age was where the three broadcast networks controlled it. it was the head of abc and cbs. contrast that with the 1920s,

the previous free-speech era. than then it was the government putting eugene debs, candidate for president, in jail for criticizing the war so we move from the government to the broadcast networks to now the lawyers of the internet service providers and they have a vastly more complicated task. >> this is to prove it's not entirely a vast wasteland. >> by definition. we always say that. [laughter] >> so another thing they have grappled with in your writing and have for a long time are the multiple ways in which we fear that technology could compromise in an unprecedented way recognition and also freeze on our dented the. many people including you have focused in particular on the global instantaneous impact of the internet and the persistence of it. i think most people when they are young commit stakes.

it's not that we stop committing them but maybe the most grotesque ones happen when you are young. >> speak for yourself. [laughter] >> i see guy was. >> anyway, but the phrase forever young, do we really want to be forever callous? >> that doesn't sound so bad as an alternative but this problem of how to escape your past on the internet is so riveting. 's two completely separate directions. on the one hand my privacy, our concern about the plight of the same people who post drunken pictures from cancun and are finding themselves fired or unable to get hired in the future because of it. there is a riveting story about a young woman who was a teacher in training in pennsylvania a few years ago who posted a picture of herself on myspace wearing a pirate hat and had been drinking from a

plastic cup with this caption drunken pirate and her supervisor the school saw this in is promoting underage drinking and fired her from her school days before graduation. she sued and she said her free-speech rights were french and the judge rejected the claim saying it didn't relate to matters of public concern and her career was totally derailed. she is working in human resources now and she never became a teacher. it's a complicated case. you could say she'd used bad judgment but certainly her life should not be ruined. as if to express this privacy concern the euro has proposed the most sweeping data privacy right of the last decade called the right to be forgotten. you won't be surprised that it came from france. the french want to be forgotten and americans want to be remembered. [laughter] but it was proposed at the end of january and its scope is

broader than almost anyone has realized. under this right, you would have the legal entitlement not only to demand facebook or google remove any embarrassing pictures that you posted and one taken down and that is already and controversy but it would also allow me to remove a picture of myself i posted and was widely circulated so here is the example. in argentina not long ago a pop star posted a racy picture of herself as pop stars tend to do. they went viral and she was running for parliament and she wanted them taken down. she sued google and said don't index the picture is taken down. they said we can technologically but the judge said you had better or we will as fine you $5000 dave yahoo! said technology that i can't remove the racy pictures. reare going to remove all references to this woman so now when you put her your name in the search engine you get it black page and a judicial order.

this allows people to selectively delete their path in addition it would arguably allow me to object to a nasty but true status update that someone else post on facebook that i found disreputable and insulting and demand that be taken down. google could be liable for 1% of its 30 billion-dollar annual income if it doesn't abide by this. google is understandably concerned and american regulators are working the junta seems that the shows dramatically hot different the european and american free-speech is and as myself as a privacy guy for like the guy in the titanic who asked for rice but this is ridiculous. [laughter] >> so it's the persistence and the global nature, one moment of poor judgment and you may be haunted by it for the rest of your life and of course the risk of that has always been there.

it's just the chances that you will be the one for whom these characteristics -- normally would have been public figures and not just some potential schoolteacher. but i think there is another aspect of this and that there is just too much information. we are putting it out constantly and subconsciously. another aspect of technology that it is more easily synthesized now and it can be used about us. in all of this though theirs is unbelievably brilliant shrink who is observing everything we do at all times and capable of rendering an incredibly powerful interpretation that we did not ask or about who we are and what we are doing and in a different kind of involuntary observation. do you know what i mean? >> i do, but i'm not sure it's the all seeing shrink. it seems a little more powerful than that. after all it was an ancient

community in the tom and we learned every word you speak is supposed to ascend to the heavenly cloud and the humidity records everything and can reader and trails but it also gives forgiveness. if you wrong something and say something nasty about them you're allowed to ask for apologies and if you go three times the apology has to be accepted. what's accepted in the heavenly cloud is wiped clean. contrast that with a the digital cloud for the keepers are far less sympathetic and forgiving than their divine predecessor. eric schmidt, the head of google said not so long ago, you know i think basically people make mistakes and they just have to live with them and if they really feel bad they can change their names. [laughter] the almighty father has a different view about this being the sins of the parents on their children but it's almost as if,

this is why it i have always laughed at the phrase local village but seems like such an oxymoron. it's based on shared communal values and people know each other in context. my neighbors in the small village might see me going to the decker store to buy my bourbon but they also know that i'm nice to my kids so i contrast with google, the worst thing you have done is the first thing people know about you. people are constantly judging out of context on the basis of a snippet of information that has nothing to do with the genuine knowledge that emerges slowly over time in the areas of reciprocity and intimacy. that is why our current state is far more brittle than traditional communities where. >> the latest of that is the whole controversy about using public shaming as a vehicle for encouraging enforcement. john priddy system some fantastic work on exactly the same point you are making here that shaming and shunning makes

sense within a community where there is hope over integration rather than being banished forever. so i think this is a profound profound.that has aspects that speak to whether it's a decent community or one in which you would want to live. more on the surveillance, the gps tracking, another aspect. i will leave this room and i will go to my car and i will go by bourbon. oh, no. >> i will buy you the bourbon. [laughter] >> know but the gps tracking case, the geolocation of capacity of government. were you surprised at how the court came out, encouraged by the opinions and the narrowness of it? what you tell them a little bit about the facts and what your observations are about that? >> this is a remarkable decision. the usb jones case the came down

a few months ago, the -- were dancing in the chat rooms but the phrase it comes to mind is modified rapture. [laughter] i never would have expected the supreme court unanimously 9-0 with project be unnecessarily sweeping position of the obama restriction and several lower federal courts that citizens have no expectation of privacy in public. here are the facts of this fascinating case. cops suspect someone of dealing drugs. they get a traditional warrant and they put a gps device on the side of a credit card on the bottom of this car and they track his movements 24/7 four months and based on the tracking and they conclude he is indeed dealing drugs and they indict him and commits them. he objects and says the evidence should be excluded because the warrant was not allen's. it was supposed to track them in d.c. but in fact attract him in

maryland so the purpose of that case, the justices had to assume there was no valid warrant so the question is can the cops without a warrant track you 24/7? the court divided as you said without why it was that this tracking was implementable. five justices led by impotent -- and to non-scalia focused on the fact that the man's property was invaded. there is a physical press basque committed when the police put the device on the bottom of the car with the attempt to collect information and scalia said at the time of the framing of the constitution even the smallest trespassed was considered a search and presumptively required a warrant and therefore this it was a search as well. i think you have to call it a visionary decision. justice samuel alito of all people joined by three liberal justices took a far broader view. he said the cops could've gotten

the same information by subpoenaing the geolocation information from the low jacks installed in the guise card or the government could require all cars to have installed gps's subpoenaed or that to get it from her cell phone companies which store our geolocation of data on third-party services. alito said we are going to have far less privacy today if we focus on the trespassed that the framers took for granted. instead the distinction between short-term and long-term surveillance. he said when he tracks among 24/7 four months you can learn so much about them. the people they associate in the political meetings they go to, the bars, the abortion clinics, their hopes and fears that we do have an expectation of privacy in the whole of our movement. and then challenged by scalia to identify the precise point in which the warrant -- warrants kicks in. you don't need to track someone for 100 miles or a day.

the cops can put a tail in your track you for david to track you for a month he would need 1000 cops. so unlike goldilocks we refused to specify the exact point that long-term, month-long surveillance requires a warrant and daylong does not. this is the most dramatic grappling of the effort that this whole book is about to translate the constitution in light of those technologies. i think both positions were helpful and it's good to recognize the property can sometimes be it least a privacy right and it was wonderful for alito to get past this formalism and to focus on the intensity of the surveillance and finally it was an interesting concurring opinion by justice sonia sotomayor who said in the future the real problem is this notion that the court has bought into in the past that when i surrender data to a third party for one congress i abandoned

privacy for it for other purposes because you know it's called the third party doctrine. is this doctrine that basically means we have no privacy in our private papers or vocational data all of which are stored either in cell phone databases for distributed third-party like google or digital cloud. i abandoned expectation of privacy and sotomayor said the court has to rethink that notion. >> also this idea that privacy interests art determined by a reasonable expectations and that is manipulable don't you think? here's your expectation of privacy. >> the government by announcing you have no expectation of privacy and you may be monitored at all times may lower expectations. here's a hypothetical i began one of the chapters with bud gets less and less hypothetical in light of this case. i was at a conference at google

a few years ago, was 2007 and the head of public policy said he expects within a few years google and facebook will be asked to put life on line all the public and private surveillance cameras blanketing the world so there are ready a few apps on facebook. you can sign up on base that can look at live feeds of cameras in mexico which are popular with teenage boys as you can imagine. the mexican beach cams linked with the subway cams that you have in arizona and the traffic cams and archive and store them, if this were done across the lobe you can sign onto any street in the world, click onto a picture of someone, back click on see where it came from this morning and see where i'm going and basically 24/7 ubiquitous real-time surveillance of anyone in the entire world. i heard a gasp in the audience about that possibility. that sort of surveillance would be perfectly permissible under the court doctrine if google

announced, when you sign on, you assume the risk by using google that you may be tracked by google of government at all times. or it could be perfectly permissible if even before this integrated camera system gets up and running drones in public faces become so ubiquitous, flying drones to track for commercial purposes and then sell to us based in our on our conduct that the court might just say technology in general public use, we never have -- no longer have suggestions we are tracked at all time. is the circularity of the privacy test that is one of the biggest problems in the doctrine. what the alternative is i am not sure. i think the best guidance that i came across was a wonderful thing by justice john harlan in 1970. he said the question can't be how much privacy do people

subjectively expect? it should be how much privacy should norm at its citizens have security and liberty in a free society? that is a hard question and judges judges aren't comfortable deciding how much minimal privacy we need to be free and constantly -- and it's going to have to some point be confronted. >> it's not just the aspect of privacy when we are out in public. but their capacity to peer into is now. it's not just geolocation of but i'm thinking now of the positive and downside of the dna testing and the bloody brick case out of england which in the spillover effect of dna testing and on the one hand i think we all know about and celebrate the past dna testing to release people who were wrongly convicted. what about those who are wrongly

cast a shadow over by an appropriate dna testing? >> such a fascinating and challenging series of issues. dna testing is possible for the overturning of 255 wrongful convictions, people on death row and life imprisonment have been exonerated so it's invaluable but it can have very public effects in one of them is examined in the book, familial dna testing which is especially popular in england. the cost to go to a crime scene and get a dna sample. they will vote it into the database and they don't get an exact match but they located near match of someone who is may be related to someone so that near match, round up the family of suspects or may go to a small town and asked voluntarily for everyone to give a dna sample to see if they might get a more precise match and you follow up interviews and get a confession.

on the one hand this in some cases they lead to culprits being -- african-americans are disproportionately in dna database is far more likely to be surveilled and identified by 4-1 then you white people based on the surveillance. in addition to that troubling aspect there are all sorts of dangers when the government takes dna samples not merely for crimes but arrest and traffic offenses as britain is trying to do her demands a dna sample at birth as some countries are trying to do and then to use this information to make addictions about our genetic difficulties, but our insurance risks and jobs. obviously they need to ensure that the information is only used to solve serious crimes and not to deny opportunities based on it pre-disposition is hugely

important. >> another aspect of predisposition, here at the university of arizona they are doing mind brain analysis in the scientific aspect of who we are and who we think we are. that technology advances and you can imagine would it be picking good thing if we could scan the brain and determined that there was some propensity for future danger or scan a brain and you know determined that a certain characteristic is present and of course is worried about how it will be used. for me, i think it hearkens back to our women's brains different from men's brains or is the search for the this gene are that jane and the terrible consequences that could come from the misuse of that information? >> many of compare this to a new eugenics, eugenics of science and better reading and the idea that we can identify by maps or

other forms of predictions, the strongest race. at at the time eugenics was popular with progressives. oliver wendell holmes the great justice was enthusiastic about you'd eugenics to uphold laws withholding sterilization in america with three generations of imbeciles is enough so we shouldn't for a minute, we laugh and then he went back to pray to his friend. this morning i have upheld the law withholding the sterilization of imbeciles. nothing all week has given me such pleasure. what would the new eugenics look like? if these brain scans are lie detector test maybe we are not so so you can take someone off the street hook them up to the port of brain scans scan and show them a picture of her training camp in afghanistan and if they have been there their brain would light up in a certain way. you could make decisions based

on that. maybe that is like a lie detector but if you take someone off the street and hook them up and find that the gray matter in their rain suggest that the amygdala, the area of impulse control and the prefrontal cortex which restrains you is not sufficiently active and based on this you have the brain map of a potential terrorist and you are and definitely detained based on your propensity. there are more gaps and we cannot say the basic american notion a liberal notion that your held responsible for what you do and not who you are. what is so striking is the government started rain scanning people and locking us up there is constitutional provision that would prevent this. the nearest analogy, there is a provision that prohibits -- if someone commits treason, by commit treason not only am i torturing in a ritualistic way,

my children are declared strangers to the law. they are not allowed to hold positions in my name is lack and and so forth. that is it bill passed by the legislature. that is what is going on when you hold people responsible for their inherited genetic material. the fact that this was not a problem that the framers of the constitution were not thinking about reminds us of how many severe threats are not covered by the constitution. >> the propensities have been a problem for some time simply because their member we had a criminologist who said if we really want to stop a lot of the violent crimes he would warehouse young males between the to 1421 until the rot of it. [laughter] obviously that would be improper. >> there would be briefs filed in the case involving the execution of juveniles that justice can be suggested adolescents have problems with

brain pulse control. >> the upside to it is a constant social on protection and the other cases that have to do with brains and peoples ridiculous assumption that is some winery category are not. one of the more illuminating things about the dna testing is for people to find out they are not who they thought they were in ways that begin to destabilize the categories and it could potentially have positive applications for how we see or cease to see grace. so it's not a one-way ratchet. you talk a lot about back into the case that involves the gps and gia locational aspects of privacy and the court struggling with this property-based notion. there is lots of talk today about federalism and states rights and in fact a lot of people think is the most important constitutional issue in play right now.

and yet it seems ironic to me that we have the technology to raise territorial lines in ways that obviously make the point as you said earlier, the notion that the geographical borders have the salience that they once did. but yet there is this hearkening back to, as you have put it, gilded age and the notions of the constitution and wanting to draw property lines in the sand strikes me as a potential mistake, that the constitutional analysis is on a collision course within itself. where do we go instead with limiting principles are reining it in and getting away from sort of the up session about geographical oregon sovereignty lines? >> the this is such a hard question. as you suggest on the one hand it's absurd to try to solve the problem of gia locational trafficking. alito pointed out in response to scalia if it's based on property

rights and the rules are going to be different than maryland and d.c. although the search might've authorized an order of a search. on the other hand i'm not ready to throw away concerns about federalism entirely only because my hero and died on all the questions especially involving privacy as justice louis brandeis and i always ask myself when faced with a hard question w. mac bbd, what would brandeis do and brandeis in addition to be a great defender of states rights. he opposed dov -- not only the greedy banks like jpmorgan which took risks with other people's money which led to the depression of 1929 and led randomized to protect that depression and tell us about her current economic travails but he joined the unanimous decision to

strike down the new deal. he viewed the states as laboratories of democracy where it's possible to come up with healthy and innovative solutions to technical problems and was keen on stage experimentation. he doesn't get into our current category. he was a combination of occupy wall street in goldwater republicans in this regard. what would brandeis do about this? he would certainly, i wonder what he thought of the internet in what he had been horrified by the decline of civility to the degree to which gossip which he worried a lot about, crowded out matters of public concern? you might've seen in some of the better chat rooms and discussion groups versions of the engaged discussion among citizens that involved in it jeffersonian shires and the kibbutz him of his real.

and here is what i think you would have done. he would have been interested in the federal trade federal trade commission occasions antitrust investigation into google. brandeis was the founder of the federal trade commission and he would have been concerned allowing a single company to have such tremendous control over privacy and free speech reddens us because he worried about human intention. brandeis always thought one jpmorgan runs out of money in the country the problem is too complex to understand the residencies likely to make bad decisions toward the public interest. he would have been sympathetic to the complaints but the problem was too complex for her to make all those decisions on her own. whether that would have led him to want to break google up or to segregate different aspects of the business or just to find ways of coveting the power it has over different aspects of technology i'm not sure but i think smallness was always his guide in this respect. >> you know more about in

working on this book, than i do but it seems my sense of brandeis as he would have wanted to segregation contextually and it would not have been about the states as such but it would have been about raking up business where business was not serving the public good and therefore it would be subject to gang analyze on a problem by problem basis. the centralization and global scheme might work better and then what what would a state or local level solution that i get the point that he was against vagueness which today too big to fail i guess wouldn't be on that one. so, alright, a more personal level, when we think about we weren't able to have this conversation before but now you are the father of twins, right? congratulations. >> thank you very much. >> so what is on their computer? they are a little too young to be facebooking yet, right?

>> my wife writes about tech knowledge he and society and the fact that she is writing about the distinction of experience and how all of our experiences are mediated. face-to-face communication is transforming our world. the first five years, no screen time at all. a lot of games of candy land in front of the fire. i looked at their birthday with special glee when they were finally allowed to see their first version of peter pan was the first musical so a little bit of dvds right now but recently we are trying to minimize without any notion that this is going to turn them into little mozart because there is nothing more humbling than having kids, and i don't have any idea what i'm doing after five years and completely rebuked by spirit.

[laughter] but they are doing so well. >> we have covered a lot of terrain with respect to the information technology and things that are evolving. let me ask you a meta-question and its related to the things, most recently, your friend and fellow -- ruth bader ginsburg speculated whether the old constitution might no longer be the model for the rest of the world that it long has been. put another way to you think the old constitution could handle this, or what we are looking at maybe categorically a new challenge that would require a new way of thinking? let me elaborate just a little more. justice scalia has paid attention to this issue and came up with a violent video case and he said we don't need it in the constitution. we freaked out with every new form of technology whether it's

television or the development of the locomotion or information technology, movies was the one he was focused on in that case and we discover a new application of the old constitution and not a reason to abandon the old constitution. is he right or for all reasons you have already listed, are we facing something? zadie smith riding the movie buff the social network said how long is the generation these days? he is only nine years older than mark zuckerberg confides a world in which he was living unrecognizable to her, that these are quantum leaps we are looking at. have you thought about this in terms of whether old constitution can take it? >> that's a fascinating question in that exchange in the scalia video games case, alito said what justice scalia really want

to know is what james madison thought of violent video games. [laughter] and scalia shot back, no i want to know what you might've thought about violence. as for justice ginsburg she got from heat for that but i think she was accurately responding to a "new york times" piece that said when in practice new democracies are creating a new constitution they're not looking to the u.s. constitution but instead to -- so do we need a whole new approach or can our document evolved? i'm so struck by these great ethics we collected by how many of the people we has to think about this issue recognized there is a complex problem that requires different actor so in some cases you need judges translating the assisting new technologies and the jones case is a heartening example of the courts willingness to do that, to take technology the framers could not anticipated to protect the same amount of privacy in

the 21st century that they would have had in the 18th. another cases the constitution does not. >> and we need new regulations and statutes. the federal trade commission occasion investigation of google is exemplary and happen some have suggested that google should be regulated like a public utility or facebook should be nationalized or there should be at the very least electronic privacy statutes that prohibit geolocation of data from being shared without consent and those are both pending in congress and the state. yet in other cases political activism is crucial. i have to tell the inspiring story because i think it's such a hopeful one of the saudi scanning machines are god began a book in 2004, the example that was then science fiction. imagine the government installs lottie scanning machines that can reveal plastics and contraband but also show you

completely nakedness but at the same time the government does not have to install these machines because it's just been presented or reported the reported back then with an alternative called the machine that takes the contraband and points to it with an arrow that takes a naked body and scrambles into a blob like avatar. given the choice you would think it would be a no-brainer. in fact things turned out differently. this science-fiction hypothetical came to pass a few eat years later and the u.s. government insisted on the naked machines. it took a political context galvanized by the immortal crime of patrick henry that it gentlemen claimed don't touch my job. [laughter] that it led an alert citizen to rise up and demand a greater degree of privacy and president

obama was sufficiently embarrassed and told the tsa to go back to the drawing board to retrofit the machine to create the same technology they had been faced with a decade earlier. i think was a terrible regulatory failure but it shows in the end when people have to wait, we citizens have to care enough about privacy to demand it and what made you up in the government will respond. so you have written a lot about bipartisan judicial restraint and worrying about the court getting too far up front on issues and a kind of judicial unilateralism and one opinion that you have locusts on as perhaps flunking this test is a form of unilateralism the got too far ahead of american opinion and compromised the court in the sense, the

americans being in neutral institution is roe v. wade and roe v. wade of course many think we are one vote away from possibly undoing roe v. wade. as a privacy pertinent sinned and someone who has rightly so, talking about privacy is not something you hope to the antiquated notion of physical invasions of this sort but who are maybe not dignity but autonomy, would you reconsider and 2012 whether roe was a good idea or of a work of other liberties or put another way, if roe goes what happens? >> fascinating question. i've long been that odd word, the ardent pro-choice skeptic with row. a fierce supporter of the right to choose but when roe was decided in 1973 and left public

opinion not in its protection of early term choice but its refusal to allow the regulation of later term abortions and i do say it's in the book you read but the casey decision not to 92 more precisely spreads the sentiment of a moderate majority of the country. here is the protecting early term choice and allowing the restriction of later term choice and the polls since then have suggested to the thirds of the country is protected the right to choose early on before viability but 70 and 80% support restrictions after viability. so you are absolutely right. there is lots of alarmism about the supreme court and presidential elections for a long time. ladies and gentlemen neutrally we can say there is going to be a different opinion about what the right answer is but if the republicans win the white house this time. [roll call] is likely to be overturned

because the votes are there and not only roe but affirmative action to campaign finances and so put. at this time, i very much believe this decision has been reaffirmed so many times that the country is has come to depend on it in so many ways that it would be a gross act of judicial activism and i hope the court does. than you asked, could this apply to other moderate issues involving privacy and autonomy and hear the ironies become really interesting. justice canady who wrote the decision famously said that the core of liberty is the right to define one's own conception of the mr. of human life are good justice scalia ridiculed this as the sweet mystery of life passage and thought it was too purple but the truth is the notion of autonomy could be a great way of regulating gps tracking. if i have a basic right to define myself and control my identity to be free from

coercive pressures to behave in a certain way, then the government shouldn't be able to use the facebook system to track may 24/7. in fact that's a more natural way of regulating gps tracking them property rights are. here is an even more surprising irony. one of the briefs and the health care challenge that the supreme court is about to hear the end of arch focused not on the idea of congress having limited powers under the commerce clause to regulate the economy because after all many libertarians believe that neither congress nor the state should have the right to pass the health care mandate to force you divide health care or as they like to say eat broccoli. to health clubs. there is another -- wonderful mode and moan in the presidential debate where mitt romney was trying to defend his health care mandate saying what we did in massachusetts was okay but the federal version isn't. nasa chooses as a state in the difference is the state can do

what they want and not congress and bachmann says i think neither states nor congress should be able to defend sheehan focused basic notion of autonomy which is built on one of the briefs and the health care case which sites none of it than the roe v. wade and justice kennedy's opinion in the case where they say the meaning of life should revamp the government to tell you to buy health care. that is an intellectually incoherent -- and the folks at the -- justice kennedy is the only justice on the supreme court who has sympathy. do i expect he would save roe v. wade to strike him a mandate? know he wouldn't go that far. scalia and alito and roberts, this is bound to make their head

explode. to them roe v. wade is the root of all constitutional evil. who says rome must pay loughner, robert orrick and for them they won't have any of this. that's why we are we are talking about other subjects and i have got out of the prediction business when it comes to the supreme court but given the fact that scalia roberts and alito have embraced a rather raw edition of congress's power, allowing the federal government for example to overturn medical marijuana laws, i wasn't surprised when two of the most respected if conservative appellate judges in the country run silverman and jeffrey sutton upheld the mandate under the commerce clause without any trouble. they just dismissed rarely the challenge and as long as the supreme court sticks to the commerce clause challenge and doesn't impose these privacy issues, then the decision upholding health care by

comfortable margin would not be a surprise. >> in fact scalia has not only compared to locker but has compared rocha dred scott. i want to give the audience a chance. on friday the editor-in-chief chris hughes, who looks like a 4-year-old. he is a very young persons. [laughter] he wrote a letter to the new republic leaders and he said nearly a century after the inaugural issue of the new republic people are once again skeptical that quality journalism and technology disruption of traditional forms of media have led many to believe that independent thoughtful media institutions are on the decline and there are not enough readers to support serious reporting. obviously this young man also grateful has put his money down on the contrary point of view and my sense of all the forms of writing that are so spectacularly good at this kind

of brainy essay for highly motivated readers both law trained and not seem to be the sweet spot of what you are the best at an and good at everything. is this gamble a good one or are we not going to have the republic which is almost 100 years old, 15 years from now? >> i missed the meeting where he laid out his vision because i was coming out here but people are absolutely delighted and suddenly feels like this institution which has been my home for 20 years and nurtured everything that i have loved about writing but before this i'm not sure i would have said it would continue 100 years and suddenly there's a great sense of optimism because chris hughes combined obviously the resources and familiarity with social media to allow journalism to flourish but also understanding that it's not supposed to be

"the huffington post" and not always that money. he was asked if he was expected to make a profit. he said with clarifying candor, no, not per se. he understands little magazines have never made money. the idea that he is willing to use his resources to support this embattled public good which is longform journalism which takes time and a lot of commitment and he wants to pay writers to do it and help us get it out there which is really exciting so godspeed and i look forward to seeing what happens. >> we have time for maybe two questions so if you come to the microphone and pitch them to mr. rosen but we have to be out of the room promptly at 12:30. >> thank you. you said that the jones case was a heartening example, and yet it

seems to me the two opinions take diametrically opposed approaches to interpreting the constitution. one is embodying the debate going on between originalism and the living constitution so are you saying both opinions were heartening example? >> i think they both are. i preferred the dough and i was actually surprised that justice sotomayor did not join the alito decision rather than the narrower scalia went. she said since we can deny -- decided narrowly i will go that way but scalia took the law of property that the law is not a ceiling but a floor. is true there might be protections for data that is accessed without -- but at the least when there is there is a physical invasion than the fourth amendment is triggered. is the same spirit that led scalia to say when the cops are inside the house and move the stereo a tiny bit to see the

serial number that is a seizure or the thermal imaging technology that reveals how much he was being emitted from the outside of the house had to have a warrant because they could reveal intimate information inside the house at the hour of the day that the lady was having a daily sauna so i think scalia isn't tempting within the constraints of his methodology to implicate the constitution. outthink it will save us from 24/7 surveillance which is why i think alito's approach i hope will power the day but i found it encouraging that all the justices rejected the simplistic deterministic notion to try to translate the constitution. >> i've got two questions for you about the court. number one, from my way outside the beltway justices are much more predictable and away they go than they were in the days of

william brennan and byron white or when you talk about brandeis. is that really true or is that my action agitation and second, secondly it's interesting that seems to be happening at the same time when you have the decline of moderate republicans and moderate democrats and everyone is polarized. as is happening on the same course or is there something different? what is your opinion? >> a really interesting question. and again i am torn in different directions. when john roberts first took office of chief justice i got to interview him and he expressed stress with the partisanship and said he was going to try to encourage his colleagues to converge around their unanimous opinions and he thought this would be good for the courts. i was very impressed with him and my wife decided i had developed a man crush. [laughter] i was kind of rooting for him and i was surprised to see how many polarized 5-4 decisions

there were. citizens united, the affirmative action and partial-birth case could soothe lord your suggestion that the court is like congress, that they left in the right has gotten so far apart that they won't compromise and that the middle has disappeared. on the other hand, there are some surprising examples of unanimity. the joints case is one person i would have expected nine liberal conservatives would rule against the democratic position when it came to surveillance and if my gently offered thought that the court might uphold health care by a bipartisan majority, if it does i think roberts get some credit for that and whether he gets credit or not the supreme court should get credit for having avoided a narrow decision. on the other hand the affirmative action case may be 5-4. i think the truth is that the court is being pushed in the direction we are seeing and it's so destructive in congress but occasionally philosophy trumps

ideology and that is why when we see it happening in cases like this i want to celebrate as much as possible. >> i apologize, i've been instructed that we have to stop spot on. please join me in thanking jeffrey rosen. [applause] >> thank you for coming. [inaudible conversations] that was jeffrey rosen in a theater of the university of arizona. we'll continue our live tv coverage and about half an hour. you can visit booktv.org for complete schedule of today's events and to watch live on line coverage from the consular building. booktv bringing you the tucson festival of books here on c-span2 and it would tv.org.

>> now joining us on booktv is professor maurice jackson at georgetown university. he is the author of this book, let this voice be heard, father of atlantic abolitionism. professor jackson who is anthony ben bennett say? >> thank you for having me. he was born in france in 1713. because of religious and toleration the edict giving non-catholics religious freedom. is revoked in 1865 and people are forced to leave, he e. third lieber conferred so his family chose to leave. his family was a very prominent family in the north of france.

his father left france to go to the border to try to pass through holland and the guard tried to stop them. and so, his father said in his hand i have a pouch of money in this hand i have a pistol, you take your choice in the card did what i would do, took the cash in the family fled to france that way. he went to england and remarkably studying at the same school learning english and the greek voltaire was far from a quaker or religious tolerant. he was a man of great abundance of material goods and things like that but he became fascinated with the quakers too. with the lifestyle. ..

>> very quickly he was able

tithing goal for books and became a teacher. but formally of affiliated with the quakers. he went to quaker churches in england. he came to america bad not joined per se. but a few step in that door three times you are a member. he became a quaker teaching at a school for girls. why? there are ideas about quakerism when is the notion that i can get the word of god myself. also the notion of reasonable seven. you inherit the wealth.

as a reno slavery as a condition to be born into. end slavery is imposed on those who are week. not believing in natural solution. the other one makes sense. we know the peace principal. he developed that idea. then he sees the black men in philadelphia of. and it found something uncommon eight years later he talked quaker boy as a and girls in his home with his own time and money.

>> host: professor jackson how widespread was slavery in the 1736? >> they had slaves. not as widespread but benjamin franklin owned slaves. about 3,000 over time. then nature of crops, if you have a large white work force, and maybe not as much slavery is needed. i should tell you most of the time they were always against slavery. that is not the case. it took a long time. they make the first suggestion as ed decreed over 100 years later.

this is what would have been. they own the slave then somebody says we should macquarie to get rid of them. you come back next year. heavy redeem yourself? >> not yet. next year. next year. they did those who is benjamin who came from england to barbados. then a big event happened 1739 he goes to a church and then he said i stapp myself.

then benezet is reaping. sells a 23. it is a famous all it ethiopia. then a couple years later he became known throughout the world with his writings against slavery. three components. would join me buy-back? seventy-eight is '50s and '60s we know of adam smith would james foster who grew

up in the south. alabama fifties and sixties broke what they did the notion, lockheed had written they said you do not have the right to hold any human being. so the big question became if they were human beings. benezet started to read everything he could on africa. man-made attracts a of the slave traders. they would say how could you read the slave trader? but it not just those but

those who went to africa and steadied 50 of africa. some wrote about the african people. another one roach they were the muslim people. they knew was say religion there were muslims in the north. but then the africans did not produce what they did not need.

we know many quakers were very wealthy but you produce what you need. a lot of time of the sure but by bringing these africans to ask ourselves to reduce the greatest nemesis? it is the europeans who take the people from their continent. for all of those who are corresponding with patrick henry. he wrote him back. benezet think you. this is revealing. how can i exist without my slaves are how can i survive? even those who were against it could not do it against

their benefit. benjamin franklin the greatest self-made american. he became a millionaire. he owned slaves. he took them abroad as serving as emissary abroad. he wrote to something the observations of mankind. then also talking to benezet. i went through the library of congress. he had almost every slave is made by the nature. that is different. slave makes the white man of the eighth. benezet convinced franklin

1787 the second president of the abolitionist society. many people send their sons in each borough to study medicine. they came back to work with benezet. not slavery of first he wanted it done anonymously. then he had impact on others. writing something in 1784 call the ways of overcoming slippery.

he wrote benezet and apologized. he said no need. there is no intellectual property law in those days. then the founder of anti-slavery in england. some said basically the idea any time of fried man or a slave stepped in free territory he would become free. every member of parliament had a tremendous impact. blacks in america thought if they ran from virginia to massachusetts they would be free. it did not work.

then he had a tremendous influence on people in france. the society for their friends of blacks. of the first time the french came together. of a had colony is. then at one point there is much to beta freeing the slaves that they are born with the 80th of freeing go slaves. then those that brought about the haitian revolution. then tracing to the etfs of what benezet 1/4. >> host: professor jackson it is anthony benezet known at all today? where is his legacy? >> 300 years one reason i

wrote the book. of course, you know, w. e. b. du bois. he wrote about him in his thesis on africa. and he said mostly benezet help to educate the quakers. then another person he who was kidnapped as a very young person on page 15 he talks about benezet throw. so people at that time get ideas.

talk about african history month in the second edition he talks about benezet. what he says are those people who fought against slavery. the name benezet pops up everywhere. i should tell you next year in france, there is the big celebration to honor him in his hometown. philadelphia of their bill be reprints of the book. abraham lincoln is not the first people of course, we celebrate emancipation of proclamation. before him there were others.

there are many others they deserve a response now we see talk about the production. and discussion. it is his name every now and then. when benezet started fighting slavery there was a handful. and about three-quarters are with him. 1840's and '50's, a great leader praised him at the black conventions. also one of the first books used in reconstructions schools and reprinted again and again even if through

the 1970's. it comes back to discuss the great people. americans sometimes forget about the beauty of those who made the sacrifice. all the of those of the big bang so to speak. but probably talk about educating blacks, schools for african people educating hundreds of people. they went out to become the teachers. >> host: what is your background and reared day you go to school? >> i grew up in newport news virginia. then i worked in the shipyard for a couple of years i did not want to get drafted some of westpac to

school at antioch college and graduate school of the '90s. i was lucky to get a job to teach this. and lucky enough to work on other books like the haitian revolution. this project is with the '04 derozan center the history of african-american people of washington d.c.. people come here because they run with the debate and look at the laws and what is created but also there is a strict slave code that exist in washington. but blacks could buy their freedom.

i look at the old history. there are many people who came from here. one school was the biggest producer of educators in the country. and many, many others. >> host: we're talking with georgetown professor author of the book let this voice be heard also associate professor here at the university. thank you for your time. >> thank you very much.

>> in the last 2000 years we have seen all kinds of formulations where power is concentrated in the hands of the commercial interest. so much so, they lead to wars, sectarian differences, a lot of consequential effects. in our history, some founding fathers wanted to put the corporation in the constitution to subordinate to human beings. but that provision never got through. at that time they remembered of the enormous power of the east india company that ruled india with the iron hand for many years devastating human casualties. they knew about the hudson bay company in north

america. while the modern form of the corporation was being established with textile mills a few years after ratification, the reference point* was a menacing power of the gigantic corporations and they did not want to replay of proliferating formed in the countries they thought would secede the constitutional structure in the u.s.a.. what is important to realize is there is a whole series of ways to fight back. people have fought back. workers, as parents parents, buyers, shoppers, f armers, they fought back as women, slaves, they have fought back. in our history, the following ways they fought

back trying to use the boat boat, fought back with regulation, you can see the farmer and the worker fight back to create the foundation to protect farmers and other railroads. they fought back in the courts witting case is. some phi back as shareholders or cooperatives. a new model not so commercially determined owned by the consumer some thought by organizing rallies and demonstrations. some of fought back by striking come of forming

unions, whistleblowing or taking the terrible information to the public or prosecuting attorneys or legislators or the media. because they fought back day attracted the attention of corporate structure and power. corporations have the aggregation of sales sales, profits, executive bonuses, and to do that they have to control capital labor technology. not small business. that has its own it mainstream accountability. nowhere near the targets of multinational corporations that number 500 big ones

operating globally and 1500 corporations that control the maturity of 535 members of congress getting their way. that is the terrain. these corporations are counseled by a brilliant corporate attorneys or the strategist of the power brokers, the circle of the accountants, publicist, lobb yist, shareholder controllers, all of these are directed by the corporate law firms which themselves are concentrated in three or 400 firms. they are geniuses. the creativity of the modern

corporate system is probably one of the greatest intellectual achievements however in nasty or destructive and american history. dynamically trying to figure out how to begin or under negative four smear the wayside just mentioned to hold these corporations accountable, responsible. the more they succeed, the more they can be charged with not delivering the adequate level for people since they control the gateway. the evidence is truly overwhelming. in 1900 there was a lot of poor people. the year 2011 there is a lot of poor people in this country. a lot of uninsured people for

health care. in 1900 there was a lot of uninsured people for health care. the difference is the worker productivity has increased 25 fold adjusted for inflation, per worker. why is there any poverty? why do 15 million children go to bet hungry at night? why is poverty increasing although the gnp continues to increase? one, power is so concentrated that the wrong things are being produced. the important things are not being produced in sufficiency. for example, well distributed health care with the focus on prevention. adequate food supplies with nutrition. public transit of the modern

and convenience style. the wrong things that are being produced coming huge portion of the economy making money from money. the paper economy. speculation, a derivatives, using the pension and mutual fund money and people say things by speculators who don't use their money but our money. to generate huge fees and profits there unregulated. number one, not the right things are being produced or those benign ways respectful of climate change, acid rain, atlanta version, oxygen

depletion. the second aspect of what is produced is poorly distributed. the ickes deal of corporate capitalism. matter how much is produced in the aggregate the one claim they have to legitimacy is they know how to grow an economy. they know how to build the gdp. if they cannot distributed to prevent people from slipping behind the they lose their legitimacy. the highest wages if majority of workers adjusted for inflation was 1973. downhill ever since.