i am not the best person to comment on the legalities of these cases. i don't know the case laufment but let me give you a personal perspective on how i think about these cases. there's a bunch of these cases and they all involved one way or another the clash of religious conscience with ant and there is a case in colorado now, a christian dog walking -- that fired a customer -- they st of here, we won't walk them anymore. this is not the kind of society i want to live in. this ist answer to sensible, reasonable

accommodation worked up to the political process. i worry that litigating all the stuff with first amendment prudence, we lose the flexibility to negotiate. there is no reason to have one national rule, we should be striking different balances. and gay people or abortion-rights activists and people today should be sitting down at the table forced to negotiate over statute that will strike balances. that is the right way to handle this. >> wonderful. greg, you have spent the last 13 years defending free speech on campus. how do the battles today look different than they did when you started? and what are the most important battles today? you recently noted that you have a growing list of 120 speaker controversies in recent years to my including high-profile dissident cetaceans -- deuce

invitations -- disinvitations. what is the state of free-speech battles on campuses today? >> i'm the one weird law school student that went to law school to do first amendment law. my passion was free-speech. i don't know why i came to that, but that is why i went to law school. i specialized in it. i took every class at stanford offered on free speech. i even did six extra credits on free speech during the tudor dynasty because i loved it so much. and even with all that preparation, when i showed up and became the first legal director of fire in 2001, i was stunned by the kinds of things that can get you in trouble on a college campus. and 13 years later, i'm still stunned on a daily basis. that is the only reason i wrote

the book, because i got tired of people saying, ok, that is one example. i talk about dozens of examples. there are a lot of trends, but one trend of a lot of trends is that it felt like when i first heard in 2002, diversity students would at least make some kind of bow to some kind of higher purpose to what they were doing, even if it was entirely disingenuous. they would say, and don't make fun of tuition prices or don't make fun of the dean in the name of tolerance and diversity. they would invoke these sometimes sincerely, sometimes for the greater good, but sometimes only half sincerely. in the past two years, i have seen more cases where they are not even bothering with that. it seems there have been a lot of these very old-fashioned examples of, just don't criticize the university. i don't have to justify it. just do as i say. which i think is the result of a lot of bureaucratization and

just giving power for a long time. every time around this time of year, a lot of speakers get disinvited from campus, or they are forced to withdraw their names. this invitation season happens every year. that is not so much a first amendment problem as it is a cultural problem. we are teaching students to think if you don't like the opinion of someone speaking there, you don't challenge them, you chase them off and get them disinvited. i think that is the wrong way to think about this. >> great. eric, not long ago, the president of the united states and the president of egypt disagreed about how to treat a free-speech issue. this was the video of the muslims that was to have led to the benghazi attacks. under pressure, the president said it needs to be removed because it shows a group of leaders in an entire religion, which is illegal in egypt. and the president of the united states was defending google and

youtube's right to post the video, but caused momentarily -- but caused momentarily on that because it incited violence. but google and youtube refused because they said it is not criticizing a religion, but a religious leader. our non-american free-speech traditions, they are obviously very different. america is more protective of free-speech. is that the right thing? and did google do the right thing? >> it is a bad thing. i teach international law and one thing i instruct about again and again is between american norms and norms in other countries. this is sometimes put under the rubric of american exceptionalism. one way that the united states is quite different from other

countries is in its commitment to free speech. you can make three distinctions. there are countries like egypt -- and you know, authoritarian countries obviously do not like free-speech and there is no reason to want to be like them. but european countries have a different attitude toward free-speech from that of the united states. europeans tend not to be as absolutist. they take seriously the fact that people can be offended by speech, that it can cause turmoil, as illustrated by this video. and what is striking is that these human rights treaties, which have provisions about freedom of expression, but the provisions are much narrower than what you find in the united states. the provisions will say free-speech is a right, subject to various constraints, such as public morality and public order. i think president obama did a

reasonable thing. this video is causing foreign-policy problems for the united states. the united states is trying to improve relations with muslim countries and he wanted to at least show people in these countries who don't share our views about freedom of speech that we respect their views. he couldn't, obviously, order google to take on the video. if he had that power, it would have been an interesting question whether he should use that. i think people are wrong to criticize president obama in this case on the grounds that, basically the rest of the world

doesn't share our views and they just have to get with the program. they've got to be like what? like us? and if they are not like us, then new cares about them. that is not a practical way to run foreign-policy. and we love our first amendment so much and we think very proudly of american traditions about freedom of speech, which actually only go back a few decades, not to the beginning. but this is such a part of the american self-identity that it very -- it's very hard to make compromises even when they are warranted, and that is a problem. >> great. professor fish, you have written a book on free-speech called "there is no such thing as free speech, and it's a good thing, too" in case that tells you where he falls on this spectrum that i suggested. and now you have written about academic freedom. what is your view of the relationship between these two concepts? x before i answer -- >> before i answer, i want to say how much i agree with what eric just said. if you recall salman rushdie and the fact that there was an order issued against him for the writing of the satanic verses. i was at a conference, a humanistic conference -- don't go to human is to conferences. [laughter]

but i was at one, nevertheless. i used to be in that game and this topic came up and someone stood up in the audience -- and they meant it, this was not a joke -- and they said, what is the matter with those iranians? haven't they ever heard of the first amendment? [laughter] the relationship between academia and the first amendment can be simply described. free-speech as established by the first amendment is an inclusive, democratic idea. academic freedom is a notion that only lives coherently within an academic structure, which is determinedly exclusive. what academics do -- our trade is to make judgments on each other. and what we do is not foster speech or to ensure that it will flourish, but rather it is the case that we devise mechanisms by which we give ourselves the

right, at least those of us that have tenured positions, to say who can and who cannot speak freely. another way of looking at the difference between academic freedom and free speech is to think of the topic of holocaust denial, which has been with us for quite a while and will be with us, i predict, for a very long time. holocaust denial in our society under the strong absolutist first amendment abuse that eric referenced is something that cannot be stigmatized or oppressed. holocaust denial can be promoted on websites, radio programs, videos, and so forth. but in the academy, holocaust

and i'll is intricate -- holocaust denial is intraday did -- interdicted. it is not that it never rises, but when it does arise, it never arrives as an option. it is not regarded as an alternative vision that one might sincerely have. rather holocaust denial is regarded as one might view "elvis is dead" denial. rather -- so it is therefore the property of kooks and crazies. you can get promoted in a history department for writing about it, but if you advocate it, you will neither get hired or promoted. -- neither get hired, nor promoted. there is the structure of inclusion and a structure of exclusion. but this goes again to eric's point. the first amendment that we now have, which i would call not in a friendly tone a libertarian first amendment.

the first amendment we now have is a recent development. and i would say it only emerged fully in 1964 with the famous case "new york times" versus sullivan, which is a case that is dear to the heart of all free-speech ideologue. before "new york times" versus sullivan, it was possible, and in fact it was done by the supreme court to withdraw protection of the constitution from speech either because of what it did, the effects it had, or because of what it said. there was a content test and then the effects test.

the effects test was called a bad tendency test. at the beginning of the 20th century, the idea that some forms of free-speech have a bad effect and do not deserve protection. that was followed by the clear and present danger test that said, well, yes, the effects may be bad, but we should wait to see how bad they may be, to see when the danger is imminent and then stepped in. but it is still an effects test. the content test was a said that's -- it was a test that said, look, there are some forms of speech that are worse and they do not deserve constitutional protection. i have one of my favorite notes from a 1942 case. some of said social value and any benefit derived by them is outweighed by the social interest in order and morality. all that changed in 1964 when the "new york times" versus

sullivan court said that all speech must be protected independently of either its content or its effects. and independently of whether he was defamatory or it causes stress of a variety of kind, because the important thing in the case was to keep the conversation going in a wide open, robust, and uninhibited way. >> [indiscernible] >> right, which i sometimes call the john wayne theory of the constitution. and that was the beginning of the end of everything. [laughter] >> and that part of the world ended in 1964. >> actually, it was the beginning of the beginning of everything. let me remind you what the world

was actually like in 1954 when the magazine you've never heard of -- because i hadn't until about yesterday -- called "one" publishing l.a. -- >> oh, yeah. >> good for you. >> it was the first openly gay intellectual magazine. it was not publishing sex ads or anything like that. it had articles and short stories and it was openly gay, and the united states post office shut it down because the content was unacceptable to society. they took it off the stand and said you cannot mail it, and just for good measure, the specific issue that they had as a cover story "you can't say that" about the censorship policies of the government. that is what they were doing. there was no reasoning at all and the supreme court struck down with the postmaster general had done, creating a wide-open

field for debate of gay rights in this country, a position considered obscene and dangerous to children in my lifetime, and allowing the field open for people like me to make our arguments and eventually to windows arguments. >> i think you can win the arguments by gaining control of the political process, with since that is the way the arguments are always one anyway. >> the ideas won the arguments. we had no political power. >> you did not win anything. >> i'm delighted that this first panel does not, first of all, need a moderator. >> go away. [laughter] >> and that the debate has been joined so fiercely and that, in fact, we had fighting words. now we know where everyone stands. these self moderating panels are so much easier to preside over. we have on my left the two first amendment libertarians, as professor fish put it, who defend the american free-speech tradition, which holds generally

that speech can only be bad if it threatens and is likely to cause imminent harmful action. and on the right, and we actually did not plan this, i will call them the first amendment dignitary in. you can correct me. who are defending speech that blasphemes groups or defends their dignity may be banned. and i want to ask greg as a libertarian to respond to the dignitary and argument that the responses from the muslim video should have come down. the google people were not convinced there was evidence of imminent threat. in retrospect, it turned out they were right. the video did not cause action.

22-year-olds in full clubs were basically making a decision in the mill of the night. -- in flip-flops were basically making a decision in the middle of the night. did they make a better decision than the president? >> almost as soon as the videos went up -- i mean, people who are contrarians on free-speech on campus are actually am i in my experience, in the mainstream. 59% are those that would be laughable if challenged in a court of law. they have been defeated every time. the extent to which free-speech has been appreciated on campus has taken a long decline in my own career. and there is an advantage to the tutor censorship. one of them is the idea of where we came from, and the idea of the spectacle of academics arguing essentially for blasphemy laws, saying we should be banning speech because it offends someone religious faith -- and i remember someone challenged me on this. and i said, you are not actually free unless you can question someone else's ideas. and that was so established that

by the time you get to the establishment of the first amendment, it is relatively taken for granted. now, to the argument of whether or not we recently -- only recently started taking free-speech seriously, i also dismissed that argument. milton was writing about free-speech in 1644. i would like to point out that almost as soon as the map has had the power to communicate ideas, a were arguing for free speech. even long before milton. free-speech was a powerful weapon and a powerful goal throughout intellectual history, starting as soon as people were allowed to speak it out loud. what stanley is conflating is that the first amendment is not found to apply to the mistakes until 1925, and that is because of something called the slaughterhouse decision. they could not have actually applied it before.

the 14 commitment came out during the civil war, and unfortunately there was a stupid decision by the supreme court that prevented that from having full force until 1925 when it started to be incorporated through the duke -- due process clause of the united states constitution. but there were better and better protections of free speech, with a little bit during the red scare of the 1950's. but of course, i see 1964, new york times versus sullivan as a wonderful time. can you imagine a rand paul or sarah palin being able to sue a journalist because they said something that might be vaguely critical of them? that is what they are arguing for. they are arguing for the right of politicians to scare journalists for the rights of -- through the rights of defamation. do we want our politicians to be able to sue us for saying mean things about them?

>> it's the same thing as lying about them. >> you have to make reference to the very opinion you are decrying. because that is for the actual malice came from. but there is this flourishing political culture in europe where they had strong defamation flaws -- loss and it is way -- strong defamation laws, and it is way less democratic than it is in the united states. and people can go into politics with this system that we have and not have to worry about inge feigned or humiliated -- being defamed or humiliated. >> my dad grew up in yugoslavia. my mother is british. i spent a lot of time over there.

and it's funny how much it mystifies brits and my friend about how much you will hear, wow, europe has such great laws with regard to speech. we would never tolerate their national security laws. these are laws that are in canada, australia, britain, and the recent -- >> these are not police state. canada is not a police state. what is the harm that is taking place, the concrete harm that is taking place -- >> people say there's a whole lot of chilling going on over there. it is getting hard, people say, to criticize the united muslim states to my by the way. there is a lot of chilling effect going on. i happen to have some in my pocket. [laughter] belgium has passed a law just the other day against advocating sexism. for purposes of this act, the

concepts of sexism will be understood to mean any gesture or act that is evidently intended to express contempt for a person because of his gender or regards him as inferior, or reduces him to his sexual dimension, which has the effect of violating someone's dignity to my either in public meetings or in the presence of several people, or in documents made public. >> was the law passed? >> yes. >> i take your point that these are not police states and europe is a wonderful place. there is a lot you can do before

you run into serious trouble. but as a member of a national minority group, i would rather be here right to not have to worry about some prosecutor coming after me because he doesn't like what i said. >> let me take up something greg said about milton. he was referring to his 1644 track, where there were extraordinarily powerful celebrations of free-speech full stop in fact, some of them are chiseled on the wall of the new york library. two thirds of the way through he said, of course, i didn't mean catholic. then, we burned. --them, we burned. [laughter] i want to say that everybody has a kicker of his sleeve. if it's not catholics, it's something. there was free-speech talk for a long time until the disciples

affair condo went to -- of farrakhan were walking around saying things and they said, we can have that. i want to say that structurally and philosophically, it is, in fact, the decision that everyone has, even if they are denying it. >> let me, -- we're going to take a vote on this at the end -- [laughter] and you will have to decide whether you are libertarians or dignitary and, so listen closely. and the audience can ask questions. is this debate between libertarians and unitarians and whose law is going to prevail being made obsolete by technology echo we are not the president of egypt and we are not president obama stop we are these 20 -- made obsolete by technology?

we are not the president of egypt and we are not president obama. we are these 22-year-olds in flip-flops. but for those who do not buy facebook, then the decision will not be made in the courts, but by young lawyers with internet service providers. >> for me, what is most interesting about that -- and i'm starting to see a lot of these hackneyed arguments for or against rim of speech. -- freedom of speech. the one thing that this twitter

and facebook people get probably better than anyone is that the value of speech is not because discussion will actually let us understand what the form of truth is. it is the fact that i now know what you are angry at me. i now know what the price of rice is over there. all of these little truths that can be revealed. if you look at twitter, you have an unparalleled chance to see something as close as we are ever going to get to the collective unconsciousness of the species. >> it is very discouraging. [laughter] >> it is come up but is important to know what we are like, for good or for bad. i make fun of my own people for having the british side, for having what i call, oh, we are taking the dinnertime response to unpleasant talk. we are just not going to talk about it. meanwhile knowing that people have bad opinions, and how people respond to them, or that they have strange ideas is incredibly valuable. the ostrich approach does not work and it cannot work. >> i don't know that technology will change anything because you made the case that government can bring lawsuits against internet service providers. it can bring lawsuits against google and require google to take things down. there is a huge amount of stuff that is said on the internet by anonymous people that nobody

pays any attention to, so there is no need to sue them. nobody cares what they say. if it is somebody like a politician or a prominent person, than ever but he knows who he is and where you can soon. --sue. back in the early stages of the internet, the trend was actually the opposite. there was a famous case involving yahoo! and friends. yahoo! had memorabilia on their website and the french government sued them. the concern was that if this website appears everywhere, then french defamation law would apply in the united states. that turned out not to be the case, because these companies can control what appears on their websites in different countries. i think it is a bit of a red

herring. these google guys, they can get sued just like anybody else. they can get fired just like anybody else. i don't think it will change much. we have seen turkey shut down twitter. what people forget is that the internet actually operates because the government allows it to operate. it owns a lot of the infrastructure. the nsa can tap into it and figure out what people are thinking and saying. we are not going to live in a libertarian society. >> eric said turkey shut down footer. what happened then is that great -- greek football fans had a habit of saying that ataturk, the founder of turkey was gay. not because it was true, but it was illegal to say that in turkey. google was asked to take it down. they initially refused. the turkish prosecutor said, take it down all over the world. instead, google just blocked access to turkish users using their internet protocol. and as a result come at google was turkey -- as a result, google was banned from turkey for a couple of years. and she had to decide whether

this video is blasphemous, in which case she will take it down. and then it is free-speech. and by the way, she doesn't understand turkish. these lawyers are making these decisions. are you confident that they will make the right one tackle >> i -- the right ones? >> no, i'm not confident that they will make the right ones anymore then the laws like jonathan rehearsed will no longer be passed. what i am confident in, however is that the strong free-speech doctrine has no reality in fact. i would go back to a formula that the great judge learned hand -- and i'm sure everybody will know. it is a cost analysis. he said, you have to calculate the harm that will be produced i allowing the free-speech to flourish, and then balance that against the harm that will be produced by trying to regulate it.

and that suggests it is a case-by-case analysis and that you have to take account of the harms without completely surrendering to them, but not ignore them and therefore surrender to some extraction -- abstraction. and there is a book that made this clear better than many in many years. he is a professor at nyu and a native new zealander. there are some international flavor to the defense of his work. >> is it realistic, in terms of taking into account who is making the decisions? waldron is forcing european regulators into their roles in court and so forth, but really, it is the terms of the service providers that are deciding things. is it the ability of european regulators to enforce their will, overtaken by this new

technological world, even if you're persuaded by a? -- persuaded by it? i'm saying, are the libertarians just missing the point? >> i agree with eric on this. i think that although there are a lot more tools for freedom of expression popping up, as no one in this room needs to be reminded, there are also a lot more tools for monitoring expression popping up. one reason you always want to be on a panel with stanley fish, if you can, is that within five minutes he will go to the fundamental issues, and the technology does not begin to address the fundamental issues and that is still very relevant. what kind of society do we want to have? and what will the race it -- the basic ground rules be? >> you talked about twitter. what was the collective voice? there was a twitter's candle -- scandal recently, one every

week. the chief pr executive was fired from a company and she tweeted "i'm going to africa, i hope i don't get aids. just kidding, i'm white." and she was called a racist. and one mother was calling for her to be fired. would you defend her right to say that? and how could you defend it? >> is a crazy unsympathetic case. if you are a pr person and you make a statement that stupid, you will get fired for it. what was amazing to me was the extent to which it turned into an out for blood cause for the people. she was on a flight and by the time she got off the flight, she was an international villain. i said this in a lot of the way we debate with each other. social media has sped up the way we argue, but has also sped up polarization and this sense of

tribalism. i think the ability to argue this quickly -- i am optimistic on this. there will be some lessons about what it means to live in a tolerant society, but i think right now we are going through some ridiculous growing pains. ryan holiday wrote a good article about this recently called "outrage porn" about how we are addicted to outrage. it really gets our juices going. and in the anti-bullying movement, i sometimes you see people harnessing aggressive action to target what they are wanting to go after. it is great conversation that we are having that is teaching us a lot about our nature. and i would not want to stop it necessarily, for the idea that maybe we can make ourselves different, but take a long, hard look at who we are. >> the definition of the study is that it has to appeal to the senses, but also turn you on an gross you out at the same time. >> i agree. [laughter] >> we all of us would want to

distinguish between the pressures that can be brought against free-speech for my which can be the social and cultural and illegal pressures, which can be even criminalization. congress said recently that nothing would be lost to the world if the entire national basketball association would be shut down. pressures that can be brought against free-speech for my which can be the social and cultural and illegal pressures, which can be even criminalization. congress said recently that nothing would be lost to the world if the entire national basketball association would be shut down. the only result would be an increase in street crime. when that congressman said that, within 20 minutes he had to -- this is my new favorite phrase in society -- walked it back.

i hope nothing -- none of your having to walk anything back. but he is paying a price. it is not a price exacted by any legal regime, but a price exacted by the cultural nuances. >> i think we all agree on that. where you and i probably disagree is that i think those cultural means are by far the best mechanism to discipline hateful speech. in fact, in official means, when you get authorities criticizing, that is counterproductive. >> and i would say in response to that brand eyes like a statement -- justice brandeis like statement. he said that that speech is only more speech. and he also said that sunshine is the best disinfectant. and my only response to that is that it is the only counter argument in all of recorded history. if you allow something it like

that into the general atmosphere -- if you allow something i call it costs denial into the general atmosphere, then you will have a growing and growing. >> my father studied 12 century russian history very seriously. human history is such an argument for freedom of speech. when you start looking at the blossoming of -- there is a great book about it that talks about liberal science and the rise of an intellectual system in which there is questioning. >> we are going to have a book signing after the show. >> it gets into the idea that if you disagree with someone about fundamental issues, you better chase them off, behead them, set them on fire, ostracize them, get rid of them. next that is good. -- >> sounds good. >> wow. that is human nature. the idea of hearing out people that you disagree with is innovation. the theory is going much more in the direction of sophisticated speakers do not believe in free

speech. or when you let pilots talk back to their copilots or you have an institution that you have a healthy conversation, the evidence is getting better and better for free speech. but we are losing faith in it. >> [indiscernible] i'm sure if they did, they would be fired. >> but the feedback they would get -- >> not all information. that is the difference between us and you. time and again, there is an in." question of whether -- there is and in." -- an impirical question of whether you want speech. we're is another example -- rwanda is another example where freedom of expression led to a

holocaust. there are other places, like the united states now, where free speech is not as harmful, and protections are necessary -- are less necessary as in these other places. but it always requires a pragmatic judgment. a fundamental approach you take based on some reading of history is not appropriate under any circumstance. >> i would argue that, in practice, the balancing test that we do so from the very quickly ends with shutting down governments and people using their political power against those without political power. but can you have these very fine tune attests that you talk about?

i would argue him. clean that history is absolutely on my side -- i would argue absolutely that history is on my side. i would argue that hate speech has been a resource for gay people in this country. a man died the other day named fred cell. a crazy person. what he did was illegal in any country in europe. he picketed with signs that said "god hates fags." and that is pushing it even for me. but the thing is, he did so much to expose the hate on the other side that it helps us. when they are out there front and center, we have 20 years of an extraordinarily successful minority rights movement in this country to prove it. >> it can work that way sometimes, as in the example you've just given.

but it can work at other ways at other times, which is what air just said. i think in this context of anti-semitism. there is a general feeling in this country that anti-semitism, at least in the united states, is a phenomenon of the past. or at least the kind that was very active in the 1930's and 1940's in this country. and i happen to believe that that kind of violence -- a virulent anti-semitism could happen tomorrow. this may simply be a feature of an unfortunate fact of that i'm older than you are. >> i have to ask both the dignitary and and libertarians about this morning's news, the most important free-speech case of the year, the hobby lobby case involving the question of whether a religious motivated owner could refuse to cover contraception under the formal care act as a visit religious motivations. -- under the affordable care act

because of his religious motivations. and the question comes to whether corporations have the same rights as individuals. you are skeptical of libertarianism in our earlier discussion. did i the court go too far in citizens united and should it not have gone this far with hobby lobby apoplexy i think -- with hobby lobby? >> i think it did. the united states doesn't always protect unpopular people or weak groups. it can be -- once it is in play, it can be used by anyone am including our full corporations and powerful groups. from the 1970's to the 1980's,

first amendment absolutism went from a liberal position to a conservative decision and it is now applied to property rights and the rights of corporations. hobby lobby, really, instead of a religious freedom case, it is in the same ballpark. my view is to let the political process work out these compromises. and another thing from what jonathan said earlier, which i think is intentional first amendment absolutism. if you think people can look at these things as religious conscience or rights of women or other beliefs and concerns, then you don't want the supreme court and the other courts applying this doctrine in order to defeat these compromises. >> i want a libertarian response to this. do you think it shouldn't

enforce the first women to struggling in this context? there are so many liberals that defended citizens united. are you barking up the wrong tree in embracing the first amendment, which has been used to strike down many laws of the regular tri-state? >> -- the regulatory state? >> i would not say that it wasn't until the 1970's and 1980's that free-speech became less of a liberal issue. on campuses, i end up writing a lot of people that come from the left side -- the left side of the spectrum, who think that free-speech should be limited for any number of reasons, sometimes noble and sometimes not so much. but i think the tactic, i actually agree with the supreme court for the most part on freedom of speech issues. we are saying, oh, now liberals don't believe in free speech because conservatives can use it?

that is a startling argument to me. it is a negative -- is it a negative thing that it is available to everybody? >> do you think hobby lobby should be protected? >> i don't know enough about hobby lobby. i do think citizens united was correct. >> jonathan? >> hobby lobby is not freedom of speech. i tend to think that corporations are not people and the first amendment should not be applied to them as they are people -- as if they are people. but it is not an area in which i specialize. >> once again, i indicate my agreement with eric. as far as citizens united goes, the topic that was discussed in stevens 90 page dissent and dismissed in the majority opinion was the topic of corruption. that is, is it a matter of impure coal fact -- impirical fact that money spent in great amounts is the corrupter of the political system or is the system corrupt?

>> one of the reasons why i make the point that we are not -- that it is not complete free-speech absolutism is that even the base end of the law that i find academics being so dismissive of when it comes to freedom of speech, there is something called strict scrutiny. in constitutional classes you always come up with a scenario where, in that case, and that is how you end up with the incitement doctrine and those

cases that we agree upon. but when it is this highly subjective standard that gives also flawed people the power to decide what they like and dislike, that is amazing how quickly administrators and students learn the code words. >> you cannot ignore subjective standards in the law. they are all over the place. there are restrictions, which gives the government the authority to say proto--- protesters can be over here, but not over there. or you need a white flag before you can march. those race, getting questions and the judges have to decide somehow, using very subjective standards. the issue is not whether the standards are subjective or not. the issue is how much the democratic process will determine the extent to which

people are permitted or not permitted to say whatever they feel. >> but an essential part of the analysis in time, place, and manner law is the viewpoint of neutrality. the closer you get to the expression of pure opinion, that is when you are on the clearest ground with the law. that is a pragmatic standard. it works very well impirically and it makes the point that my opinion is something that i should be entitled to and can be very well-maintained, while at the same time trying to limit the influence of bias of power. >> even in defamation lies is still possible to defame someone to my specially a private person rather than a public person. if you defame someone, you are simply expressing your opinion. that means a court or judge will have to decide whether your opinion has enough evidence. but that is not entirely right, though. when it comes to defamation law, one of the central questions is whether or not this is a false assertion of fact. and that also makes perfect

common sense. am i saying i hate this person? that is not defamation. if i'm saying i know for a fact this person is a pedophile, that could be defamation, particularly if you knew it was lying. a lot of these situations are less of a problem that i think you are making them out to be. >> but what we've had with defamation law is the rise of public insistence. it is not that they cannot be defame, but the standard is much higher to defame them. and those who have dealings with public officials are now grouped with those public officials.

and the effect was to weaken the possibility of destination -- of defamation. >> and earlier this month, the new york times celebrated its 150th anniversary. happy birthday. we have a series of audience questions. i will jump right in. what assurance do we have that gay rights advocates will not trample on the first amendment rights of those of us who have the nerve to disagree? jonathan. >> there are a lot more of you than there are of us. and that is the assurance you have. it still has to be worked out in the political process. and there are tons of cushions out there and they will stand up for the rights and they will be heard -- of christians out there and they will stand up for their rights and they will be heard. i'm confident that we can and will get to a point where in 10 years we will have a pretty good, well agreed upon set of rules that we will have worked out for where these boundaries will be. >> is there a limit to hate speech? if so, what where is he echo >> i don't believe in a limit to hate speech. -- where is it? >> i don't believe in a limit to hate speech. we have very well outlined what harassment looks like. in the law, it sounds like what it is in the english language. if it is severe, targeted,

harassing someone. that is a good guideline for what you are not allowed to do. merely having an extremely noxious opinion, i think that should be protected. and i would go farther to say that it is one of the aspects that truly reflects the realism. it is good to understand people from different classes, age groups, backgrounds. they may have an opinion that you right now consider obnoxious. there is a great example of bertrand russell being kicked out of cooney when he had a job there in the 1940's before academic became straw -- strong in the law. he was kicked out because he thought that masturbation was ok and he was tolerant of homosexuality. he was kicked out because these ideas were considered moral -- immoral. ideas that we now take for granted have been affected in the fairly recent past. that is crucial to remember. >> i think that is wrong. that is, i think it was wrong

for the city to kick out bertrand russell. but what makes it wrong is the city, and the court allowed it -- how should i put this? what was happening was that russell was being hounded out because of his political views, not because of any expertise that he might have had in philosophy or mathematics. can that general principle, which was introduced in 1915 by the association of university professors in his general statement on academic freedom and tenure far predates the u.s. -- the new york times versus holland, -- versus sullivan, which i strongly support. but when academic becomes political action, professors should neither perform political action the classrooms, nor should they be shut out for what

they do outside the classroom. but new york times versus sullivan has given us holocaust denial. >> do we all agree that holocaust denial is a terrible thing and should never be allowed? recs i think that is a different question. >> i think that banning holocaust denial is like global warning -- is like fixing global warming by breaking your thumb on her. [laughter] >> we have a society that is generally tolerant and people are making all kinds of arguments about all kinds of things and these are -- this is

one of the crazy arguments people are making. it is probably not a good deal -- big deal. but if you have a country with a small number of jews and people don't like them and this idea is beginning to develop and has not quite yet amended the society, i think you could make a pretty good argument for a law against holocaust denial. and i think, and germany has a kind of penance for what happened in that country. they have laws against holocaust denial and laws against espousing naziism. a problem with that view is that in situations that are actually like the ones you describe where there is a small amount of minorities, you're not going to pass laws that are going to protect the small minority. you are going to have the majority of passing laws to oppress the homosexuals and

using speech laws to oppress the homosexuals. >> speech laws were used in order to allow the ragtag nazi band headed by someone called frank to march in illinois. it never occurred for other reasons but if it had occurred, it would've occurred because of a strong first amendment opinion written by a judge who practiced what i call the rhetoric of regret. he kept saying, i hate it. it is going to do a lot of harm. i regret the fact that we have to allow these horrible things that happen but that is a first amendment. >> i would get this when i speak at universities and i agree with stanley when it comes to someone who was espousing holocaust views. that it's one of the reasons why a lot of the times when you pass laws that ban it, you are going

to encourage it. if someone has to say, i believe the holocaust did not happen. prove it. defend that position. i can't. here are the 10,000 pictures. >> have you ever gone on the website? they defend it. i have read it. >> if you are a paranoid fanatic and you're all idea is to say the holocaust never happened but i am not allowed to say because there was a conspiracy. that is a formula for the society. i would say the holocaust denial is more successful in countries that have these kinds of speech laws. >> it is interesting to remember the public had robust laws and tried to shut down the nazis. hitler used those laws to make

himself a national symbol of resistance. you don't want to give these haters the platform. >> i love when people bring up nazism as an argument for hate speech laws. the nazis did not have concern for individual rights. [laughter] >> this self moderating panel -- [laughter] >> are you still here? we haven't heard from you in a while. >> i didn't realize a topic like the first amendment which everyone in the country agrees on could have such a provocative disagreement. we are going to reduce this debate to yes or no. >> can we have predictions from the panel?

>> are you going to win? >> no, not on the vote. >> i don't want to influence the vote. >> john are you going to win? >> i'm going to say yes. >> who is persuaded by professor fish that the european dignitary in position on free speech is significant? who is persuaded by the american libertarian position is more persuasive? >> i have a question. wait. >> raise your hands if you changed your mind. >> thank you. >> which way did you switch? [laughter] >> [indiscernible] >> what a beautiful summary of

the spectacular panel. please join me in thanking them. [applause] great job. wonderful. please come and join us downstairs. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> today on c-span, washington journal is next with your calls, the role on baseball -- a baseball and american life with samuel alito. and americans including david brooks and george will. then former professional athlete kareem abdul-jabbar, michael irvin and kevin johnson talk about racism in sports.

in about one hour, a debate about immigration with daniel stein for the federation for the migration reform, and benjamin johnson of the american council -- then charles murphy on american exceptionalism from the american enterprise institute. ago, it isears estimated that the population of the 13 colonies was about 2.5 million people. aroundthe population is 320 million here in the united states. fourth of july became a federal holiday in 1870. 1938. federal holiday in good morning and welcome to "washington journal" on this july 4. we will ask you, what does it mean to be an american?