Now joining us on booktv is author robert cornrevere jr, the name of his book, the mind of the censor and the eye of the beholder. Well get into that in just a minute. But mr. Corn revere, i want to read this to you. The First Amendment of the constitution, Congress Shall make no law abridging the freedom of speech or of the press. True or false . Well, true in that that was the mandate that the framers of the constitution had in mind. The difficulty has been interpreting what those words mean over the interval of time between the founding of the country and today, and who has been interpreting those words of the courts. Well, all of us have been in one way or another. But the final arbiters of what that means are judicial decisions that breathe life into what those words mean and how they protect our constitutional freedoms. As a First Amendment lawyer, are we a sensorial nation . We have always been a sensorial nation in the sense that there are some people who think their ideas should prevail and others who disagree. And there has been a tendency for people to push the idea that the government is should be used as a way to settle whos right and whos wrong. And so there has been this constant tension, this constant push and pull between those who want to impose their ideas and those who want to use the law like the First Amendment as a shield to protect the ability to express ourselves. And thats the theme that i explore in the book. What is going on in the mind of those who think they can use the law to silence the because they disagree with or to force the ideas they find particularly compelling . Well, before we get into the book, what is your experience as a First Amendment lawyer . What does a First Amendment lawyer do . Well, the First Amendment lawyer generally works as someone who defends those constitutional principles. When a case comes along that appears to threaten them. And ive seen that in a variety of different context. Over the years, ive been practicing First Amendment law for four decades now, and so i have seen that come up in the context of City Ordinances that try and determine when people can march in the streets, on university campuses, on whether or not we should have tiny speech zones, the only places where people can speak or campus speech codes that try to define what is civil enough for expression on campus. Ive defended it in the context of federal agencies. The federal Communications Commission, where i once worked and in trying to police broadcasting and cable and what can be said on those media, the internet, its come up in a whole wide range of contexts, including political speech, sexual speech, all kinds of things. Well, two cases that are noteworthy mention you worked on a super bowl case that involved Justin Timberlake and janet jackson. Thats right. What was that . That was an fcc action that emerged from the 24th super bowl, the notorious wardrobe malfunction, where at the end of the halftime show, Justin Timberlake reached across and pulled off the outside of janet jackson, brucia and revealed for 9 10 of a second her breast. The fcc wept into action, decided that was a violation of the indecency rules, even though up to that point it had said that fleeting and unintentional and those kinds of accidental exposures or expletives in the case words werent actionable under its policy. So for an event that lasted 9 16 of a second, we went into eight years of litigation to finally settle the matter. At the end of which the federal Communications Commission was required to pay cbs network back. 550,000 that they had fined the network for that incident. Were you working for cbs at the time . I was. I was representing cbs in that case. And what did that cost cbs to have a lawyer for eight years, more than the amount of the fine. I can tell you that the other case that you worked involves comedian lenny bruce. This was a matter that came up as a pro bono representation. Obviously, that people dont pay lawyers, but the the case came up because i had friends who had written a book called the trials of lenny bruce that detailed all of the legal troubles. Lenny bruce went through, for those who may not remember. Lenny bruce was a comedian in the late 1950s and into the 1960s who became notorious for having very edgy material, socially conscious topics ranging from religion to sex to politics to you name it. He pushed all of the boundaries and was prosecutor for obscenity in san francisco, los angeles, chicago and new york. He was convicted in new york and that law about conviction remained on the books until my friends, in writing their book discovered that it had been incorrectly reported that that conviction was overturned. In fact, owner of the nightclub where he performed had his conviction overturned. But lenny had died in 1966, so his appeal was never perfected. And so on the basis of the book, the authors contacted me and we filed a petition in the state of new york for a posthumous pardon of lenny bruce for that conviction. When it comes to free speech, robert cornrevere, where do we stand when with George Carlins famous seven words that you cant say . Well, right now were sort of in an uncertain state for that because the seven dirty words became a test case for what the scope of the fcc is anti indecency policy was the same policy by the way that was brought into play in the super bowl case at the time that carlin wrote his monologue in the 19 early 1970s. The fcc had not defined what indecency meant, and so they used his routine. That was later broadcast on pacifica radio as part of a program about the use of language. They used that to define what they meant by indecency. They didnt do a very good job the way, but the case did go to the Supreme Court in 1978, and the Supreme Court very narrowly in a 5 to 4 decision, said it, well, its okay to enforce this policy, but dont go crazy about it. I mean, it has to be applied very narrowly so that it doesnt cover things like fleeting expletives, unintentional exposures, things like that. The issue of whether or not the indecency policies survives today is really kind of up in the air because in the wake of the super bowl case and other cases that were going on at that time, the courts struck down fcc actions but didnt finally put an end to the indecency policy. The fcc has been pretty much laying low since then. So the policy exist, but its application is still pretty much in question. Have we heard purposeful an fbomb on network tv . Not on network tv, no. People often get confused about that because you know, all of the same comes in over the same appliance. Or actually we now have choices with handheld devices and all kinds of other. But the television is where you get your cable network. Satellite networks streaming media comes over that and then you have broadcast television and these rules from the fcc because they apply to licensed broadcast media, only apply to a tiny slice of those video channels that you might see. So its very confusing. Youll see this on other media, on cable and on on streaming media where there is not an inhibition on the use of language because of this federal regulation. It is only on the broadcast media. Well, in the mind of the censor and the eye of the beholder, you spend a bit of time talking about the fcc is newton minow. Yes. What was his role in censorship or the First Amendment . Newton minow was chairman of the fcc in 1961. He was appointed by jfk. He very famously went to the convention of the National Association of broadcasters in april of that year and gave what is famously as the vast wasteland speech, basically going to the broadcasters and telling them that their product was not very good and that if they wanted to keep their licenses, theyd better up their game, theyd better broadcast more culturally uplifting material. He was a champion of what is known as Public Interest regulation, where the government essentially has a supervisor, a role on whether or not youre doing a good enough job as a broadcaster. The problem with that is, in the scheme of things, the amendment is supposed to protect private speakers from government oversight and government action. The reason i cover newton minow in the book is because theres often the caricature that censors all right wing zealots that they are all they all come from one side of the political spectrum. And so in the course of talking about censors through time, beginning with Anthony Comstock, i tried to go through different instances of censorship in history that come from both the left and the right and when i got to the topic of broadcast regulation, the Natural Choice was newton minow, who was a liberal who wanted to improve television very good motives, but was using the levers of power that ultimately exerted a Chilling Effect on broadcasting and some would say it dampened creativity to the point that television in the 1960s was one of the least creative periods for medium. Well, speaking of Anthony Comstock, who was he . And its interesting that Anthony Comstock is in many ways forgotten in the Popular Culture today. But he was a gigantic figure in the late 19th and early 20th centuries. He was started out as an anti smut vigilante in on the streets of new york. He would make citizens arrest and drag reporters along with him to to make these arrests for smut peddlers. He attracted the attention of a group of city fathers who ran the ymca in new york, who began to bankroll comstock on his exploits and sent him to washington, d. C. , when he was 26 years old to lobby for a new bill in which ultimately passed within just a matter of months called the comstock act, which was a federal obscenity law. It is still on the books today and is still at the center of debates over the sending of contract captives and of abortion advice in the mail. So theres still an influence today, but comstock was largely forgotten many ways, and yet he had this law passed that popular bore name. He headed what was then called the new york society for the suppression of vice, which very clearly proclaimed his objective as being the nations censor. Actually, if you looked at the official seal of the new york society, it very clearly showed what they were about one half of it showed a constable ushering a miscreant off to prison, and the other half depicted a victorian gentleman in a top dumping armloads of books into a bonfire. And so was what he was about. And for 40 years he stood as sort of the National Arbiter of what was moral or what was not. And that was a line drawn very broadly, so that it covered literature. It covered art. It covered medical textbooks. Because he thought they were too salacious, including anything involving sex. And so we have and thats part of where this sort of legacy of prudishness that is often associated with the political right, because thats sort of its origins and where it came from. But it ultimately backfired. Comstock became as powerful as he was, something of a laughing stock. He made it so that other people who want to regulate other peoples thoughts and Reading Materials never want to be called a censor. Which is why in the book i call it the censors dilemma that they can exercise great power, but they lose the sense of legitimacy in a society dedicated to freedom of expression. In his lifetime, was there pushback against comstock . There was. There was pushback even from the beginning when he was ridiculed in some of the some of the news accounts, the term comstock was coined to mean an excessive or foolish attention to censorship. He actually, George Bernard shaw, popularized the term comstock that first appeared in the new york times. And what was interesting, too, is something i call the comstock effect, which today we would call distraction effect. But it is where you have a foolish attempt at censorship, bringing more attention to that material than it otherwise would have had. But nonetheless, he was quite successful in prosecuting people he convicted over 3800 people. He drove at least 15 people to suicide. He would pursue people across the country. And he was given a special Postal Commission from the u. S. Postal service where he could ride the rails, because if the railroads accepted mail, they also could have had to accommodate the inspectors so he could travel all around prosecuting the materials he disliked. But the pushback came basically from the culture. It came first from people who would ridicule him and from a growing sentiment against him. And ultimately, because he was successful in prosecuting people, he forced free speech to sharpen their arguments. And so the arguments against, censorship began to be refined in reaction to comstock. So that in the 20th century, after had died, the court started finally coming along and finding some real substance, the protections of the First Amendment. Well, speaking of the courts, theres that famous case about pornography, where a Supreme Court said, i cant define it, but i know it when i see it. Thats right. Was that a First Amendment case . It was a amendment case. It was jacobellis versus ohio in 1964. And thats where Justice Potter stewart, that very famously i may not be able to intelligent to define obscenity, but i know it when i see it a lot of a lot of interesting things about that statement and that Potter Stewart later apparently decided that he really didnt know it when he saw it because he, nine years later decided in another case that they really couldnt figure out what the definition of obscenity was supposed to mean. And so he changed his vote. Potter stewart also knew that the term for indecency, which is a different and lesser standard, isnt so easy. Recognize and you cant as easily recognize. Its not well defined because he voted in the majority. In the minority in the pacific, a case involving kali. Seven dirty words is hate speech free speech. It is. And let me just explain. Hate speech is not really a legal thing. Its not really a legal concept. And let me explain it by talking about pornography. Pornography is not a legal concept. The legal concept is obscenity. Pornography is sort of a general catchall epithet to describe sexually oriented entertainment so that is in general , which is protected by the First Amendment unless. It crosses that legal line. The actual definition of obscenity, which the courts have refined over time hate speech is very much that in that there are lines that can be crossed, including the line to incitement, where youre inciting someone to riot or harassment, where youre actually physically making someone unsafe. And those lines are more precisely drawn. But hate speech is this amorphous concept of basically any kind of speech we find really, really uncomfortable and, you know, i think it would be hard in nonlegal terms to say this is good speech, but thats not the legal question. The legal question is whether or not the First Amendment protects it and hate speech is really very often a matter of perspective. Robert cornrevere do you agree with the limits that are placed on incitement speech and violent speech . I do, and thats one area where the Supreme Court has been making real efforts to refine what is meant by terms like incitement. It has over the years said that there are certain categories of speech that are not protected and they include defamation, obscenity, incitement, true threats, speech that is integral to criminal conduct. Those are the areas. But what it has said is that before speech can be said to fall off the First Amendment earth, before it loses its protection. It is presumptively protected and it is the governments burden to demonstrate when it isnt protected. Some people get that presumption backwards and they ask the question whether or not this speech merits protection. And thats not the question. The question is whether or not this is an example of where government power can be trusted to determine protected speech from unprotected speech. Well, government power, local communities. Should a local community be allowed to ban book x in their community . It would depend on whether or not that book crossed the legal line set by the Supreme Court for whether or not that book was obscene or fell into one of the other unprotected categories. So the answer is both yes and no. The answer is, as a general proposition, no. A book, a community cant decide. Im going to ban that book. But if the community has a law that says we dont allow obscenity in our community, if a prosecutor can prove that that book crosses the line into obscenity and its a very stringent test, then that community can succeed in doing it. But again, the presumption is that the book is protected going back to incitement. Knowing what, you know, now about january sixth, could you defend and or prosecute former President Trump . That is a fascinating question that ive both listened to and participated in debates back and forth among other members of what we refer to as the First Amendment community, other First Amendment lawyers and youll find a range of opinions on that. What is to keep in mind is in line with that principle about speech being presumptively protected. The test for incitement is a very stringent test and it requires both that the speaker have in tended to cause immediate lawless action and that the speech have been likely to immediately cause that lawless action. So a lot of the focus on the speech, on the ellipse before the attack on the capitol, the question whether or not that was enough to satisfy the test for incitement. A lot of people will say, no, it wasnt because it didnt have the element of immediacy. Maybe he had the intent to cause lawless action or not. That can be debated. But whether or not there was a the immediate risk that that raises another question. Now, since then, we know more about what happened on that day or the events leading up to that day. You can argue theres broader case for looking at events and not just the speech, but other events that led to ultimately to the attack. But i come down on the side of thinking that you really have to have a much more powerful demonstration of the immediacy element. And you see this and why its to protect. I dont want to make this about just about former President Trump. You see this in cases involving all kinds of people who are in volatile political situations. Theres a case involving a an organizer for black lives matter and whether or not he can be made liable for the fact that violence was committed against members of the police in louisiana when he helped organize a demonstration. And in the demonstration, Police Officers got injured. Well, the incitement theory, the incitement category doesnt really fit that. But if you dont protect someone in the trump situation, you put at risk people on the other side of the political spectrum. If saying words can but then lead other members of the crowd to do things that can be a very risky proposition for the protection of speech overall. As a First Amendment proponent, its fair to call you that. Yes. Should a private social Media Company such as be allowed to ban a president of the United States from its platform . Yes. Would you like to know what . And that is because the First Amendment protects us from government, not from private action. The president doesnt have any more rights or any more ability to be on a private platform than anybody else, more than a president demand that Simon Schuster publish his memoirs. Right. And so private platforms have their own First Amendment rights and interests in determining through their terms of service, what kind of communities they want to foster or to have on their platforms. And so they can enforce those rules. Without running afoul of the First Amendment. But youve touched on what has become a larger debate on First Amendment theory and how it interacts with government and im sure were going to see a lot more activity in that area in the years to come. In the mind of the censor, in the eye of the beholder, you talk about the university of chicago principles. Yes. What are those . University of chicago principles are ones that say that the purpose of the university is to foster open dialog, openness, and they protect the ability of students and faculty to voice their views without fear of retribution for, you know, the fact that they are exercising their free speech rights. It is its something that has made the university of chicago ranked number one in ratings among those universities that protect freedom of speech. And the chicago principals have been signed by now dozens of other universities hoping to follow that example. Should a Public University such as uc berkeley be allowed to prevent a speaker from coming because of protests by students . I think it is the obligation of university to protect the speaker and to allow the speaker to have a platform. They if there are going to be counter demonstrations, which is they are themselves exercises of Free Expression, then they have to be done within the bounds of allowing the speaker to continue and to provide that message along with a peaceful outlet for dissent. Are we more free when it comes to the First Amendment than we were 50 years ago . Yes, we are. And its because the body of First Amendment law and precedent has developed over time. We saw a rapid expansion of that in the middle of the 20th century. And we have, i think, seen increasing diligence by the court in protecting what i think our core First Amendment principles. You have constantly, though, sort of an ebb and flow, Different Cases come different factual situations present themselves. And so it is ongoing evolution and ongoing struggle to maintain that those principles are upheld. I have to ask you about your shirts. Youre wearing a fire shirt. Thats acronym for the foundation, individual rights and expression. And are you working with them . I am now the chief counsel of fire, the foundation. And what are some of the cases that youre working on currently . Well, when we have a number of cases in process, we are actually challenging a law in florida that prescribes the curriculum and Higher Education. It was part of what was called the dont say gay bill. But we are focusing on the Higher Education elements of that, saying that that is a violation of academic freedom. On the other side of the ledger, since it is a nonpartisan effort, we are protecting the right of organizations like moms for liberty to issue about books that they find. That they would not like to see in schools. And yet we are also challenging efforts to censor books in public libraries. So i think our mission is to protect free speech principles of which political side it may be on that the law should not be a tool of the culture war, whether youre on the left or on the right. You have to maintain the purity of the First Amendment principles when comes to common carriers and broadcast tv and things that are accessible by everyone. Where do you where do you see limits that are necessary. That is a little harder to say. I mean, when you talk about common carriers like Telephone Companies and so on, there have been a range of Different Levels of protection based on different media, which is one of the interesting things actually, that the relationship between technology and the First Amendment, when you think about it, the Printing Press was the first modern technology of mass dissemination of information, and it was the new technology of its time. When the framers wrote the constitution, which i think is a telling thing, when you think that they went out of their way to institutionalize this private institution, the press, as an essential part of our political system. I think it means that the First Amendment inherently applies to new technologies and why it was a fascinating thing to see that the Supreme Court was first faced with the question of free speech on the internet, gave it full First Amendment protection. Now, with technologies like broadcasting, as you asked about for First Amendment protection has not yet been accorded to those media. And so that is an area where i think we need to bring First Amendment law in line with the idea that technologies dont change whether or not First Amendment protection applies. What is the difference between cultural and political censorship . That is, i think, one of the great challenges of our time. What ive been talking up to this point has been the law of Free Expression, First Amendment law. It sets the floor for what we think of as the Legal Protections for free speech. But free speech is something that doesnt just exist as a legal principle. Its also a cultural understood. And i think this was expressed best by judge learned hand during World War Two in a speech that he called the spirit of liberty, where he said that liberty lives in the hearts and souls of men and women. If it dies there, then no constitution, no law will save it. And so the question is whether or not people generally support the principles, the culture of Free Expression and thats the challenge we face now. When you look at things like cancel culture, where people think that they ought to be able to shout down ideas, they find distasteful or harmful or whatever the culture Free Expression should be. One that accepts the fact that people are going to disagree. We live in a diverse and Pluralistic Society that often those disagreements are going to be sharpened, unpleasant, but it only works if you allow each of those sides to find a way to have their say. You can include the mind of the censor in the eye of the beholder with a quote from floyd abrams. First amendment lawyer or as you call him, americas most celebrated First Amendment lawyer. Yes. Quote, the problem with censorship is that it leads to more censorship. It leads to a sensorial mentality, to a state of affairs which is in the most real sense, unamerican. Robert cornrevere is the and hes been our guest on booktv