At the end of his extraordinary with suzanne and also Salman Rushdie challenged us to defend the First Amendment principle that we must protect the thought we hate, as Justice Holmes called it, and that in america, speech can only be banned if its intended to and likely to cause imminent violence. Thats the principle that comes the brandenburg case. It was articulated by brandeis in witney, and it makes america, as Salman Rushdie said the most speech protective country in the world. And on our first panel, were going to explore the history of that shining idea with three of americas greatest history wins of freedom of speech. And im so excited for the conversation we have, jake and martin gamma from the future of free speech project, akhil amar from yale law school, steve solomon from nyu and jacob rosenbaum. I want jump right in and first say that your book free speech a history from socrates to social media, i think is the clearest and best history of the evolution of the idea that ive read and i want to begin by asking you, where did it come from . The phrase that we must have the freedom to speak as we will and think as we speak you teach came from tacitus, the roman historian, and it was then picked up by spinoza i learned from your book and then articulated by catos letters the great whig revolutionary theorists, who inspired jefferson. Tell us more about that evolution, how it began in athens and rome, and then was picked up by the enlightenment. Well, first of all, thanks for inviting me to you. Im not an american, so i feel like ive been given a card to the all star First Amendment game here in the us. So its a great honor to be here. Yeah, the First Amendment was not the first invention of free speech. I would say we need to go back to the athenian democracy. Actually, to find the origins of free speech. And the athenians had two models of free speech. One was, is a real meaning equality of political speech. All free born male citizens had a right to speak and then policy, which is a civic commitment to the tolerance of dissent, which permeated athenian culture. And then, you the interesting roman example of tacitus, but the roman is a bit more top down, elitist conception of free speech. So it was the lead welleducated elite, not the the unwashed mob who was supposed to exercise free speech. But it was the roman ideals that inspired us. As you mentioned, catos letters that came up with this great enlightenment meme, that free speech is the great bulwark of liberty that made it into the virginia, which made it into madisons first draft of the of the First Amendment, which even made it to in russia and was was spread all over colonial and which also i think played a very important. In a case from 1735, the singer case where a a printer who was the printer of the first opposition newspaper in the us was attacking the governor. New york was was put on trial for seditious libel and normally would have been an open and shut case. But the jury, drunk on catos principles was decided acquit him even though the common law was pretty clear. And since since that case it basically became almost impossible for colonial governors to to use seditious trials to to convict people, to have juries convict them, because a culture of free speech had been inculcated. And i think that marks a huge difference from from 17 central america, where you have more than 1200 cases of people being prosecuted for speech where here in pennsylvania under william penn himself a former prisoner of conscience, you had prepublication censorship and a council in 1683 presided over by william penn sentenced and anthony to be lashed 30 times for you know, sedition speaking out against the government that william presided over. So a huge shift between the 17th and 18th century in the understanding of the importance of free speech. And that sort of plays into the developments leading up to the revolution and also afterwards. Oh, what a beautiful encapsulation of the history of free speech that phrase drunk on catos letters just sums up how the colonists absorbed the spirit of liberty and you so. Well, set the stage for our conversation. Akhil amar. You were my First Teacher of constitutional law of kindle. My understanding of the constitution, and that of so many americans. And in his virginia for religious freedom. Thomas jefferson offered for reasons for protecting free speech. First, the freedom of speech is an unalienable natural right that comes from god or nature, not government. Second, that free speech is necessary for the discovery and spread of political truth. Third, the free speech is necessary to hold Public Officials to account. And fourth, it is necessary for democratic. Now, not all of those were shared by the all of the founders. And youve taught in your writings that it was really a concern about the collective selfdetermine of the people that was at the centerpiece of so many of the founders. And thats that evolved the course of american history. But i want you to teach our friends how those jeffersonian ideals were or not by the different founders and who were leading voices in the founding on behalf of free speech. So its such a great honor to be back here. And yeah, youre right. Way back when, you know, when i had black hair and you were just a lad, thats when we first met. And and this is an audience, but some men rashly said one thing at the end that should concern us all that look around, there are not enough young people in the room were young back then we have to we have to teach our children to, you know, to to borrow from crosby, stills, nash and young. So heres the thing, because youre right, this is an amazing place, ladies and gentlemen, please look to your right. Okay. So that is the room where it happened. The two things happened and they were different. You know, people can talk. But then are you to walk the walk the of independence drafted. And heres the thing wasnt really put to a vote and then the constitution is drafted there and it is put to a vote and the athenians didnt put the Senate Constitution to a vote. The romans did. And this is astonishing. Thats amazing. And more people got to vote on when america became great. Its not perfect. Slavery and all the rest. But thats a moment in Human History thats astonished. King because an entire freaking continent is to vote on how they and their posterity are going to be governed. More people got to vote. And ever before in Human History. But they also spoke so in that you will actually have here an artifact, a Newspaper Publishing the proposal, the constitution. There is freedom of the press before theres a First Amendment. You see because the press is free to publish this short little thing. Its short not so judges can make stuff up, but so the ordinary people can actually read it. Start to finish, decide with their forward against it. So thats freedom of the press before this First Amendment, they put it to a vote. Two things and then ill shut up. The first thing ordinary people say is like, dude, you forgot the rights to secure these rights. Governments are instituted among men, securing their just powers to extend government. You forgot the right, says george and other people. And they did. And in this process, actually the federal thing, youre right, we goofed. So first thing were going to do, were going to add some amendments. And one of the amendments say the people, people, the people, the people, the people, the right, the people to petition and assemble and the Second Amendment and the fourth and ninth. 10th, because its coming this we the people act of ordained into the establishment. Were putting it to a vote. And ordinary people say, you know, we want rights, including rights to criticize because thats what were right now. Final point, the people who youre allowed to oppose the constitution and youre not voted off the island. If you oppose the declaration of independence, youre almost not heard from again, truth be told, because its a war and youre either for us or against us. And almost no one who opposes the declaration goes on to anything. Truthfully you can oppose the constitution and like George Mason University is named after, you see, and you can be president of the united james monroe Vice President , United StatesElbridge Gary and george clinton. Justice on, the supreme court, samuel chase so we dont just say it, we do it. That bill of rights comes from critics, comes from dissenters, comes bottom up from the people. So to Amazing Things happen. Their declaration, not bad. Constitution even better because more got to vote, got to speak, got to criticize. And they were listened to and not voted off the island. And thats the story of the word the people in this amazing wall that you have up there, beautiful. And you tell the story of. The connection between we the people and the constitution so well in your books and akhil, i just have to tell you what an electric thrill it is to be talking about the First Amendment here with you, our friends gazing at the independence hall. Its just an extra ordinarily sacred space to be talking about free speech. Steve solomon, the man who convened all of us, your magnificent book, revolutionary dissent how the founders generation created the freedom speech, tells the stories of jury trials like the zinger trial, which Jacob Mchangama mentioned and other dissenters like mcdougal, whose were acquitted by jury nullification by liberty loving juries that didnt want to enforce seditious libel laws. Tell us about how those revolutionary dissenters shaped the founders conception. Thank you. Thank you, jeff, very much. So the law there was of england, the common law of england, that was adopted here. It came over atlantic to find freedom of speech, a very limited way. What it what it said was it was a freedom from prior restraint so the government could not shut down the newspaper. It could not license a newspaper. However once you published, you were responsible for what you published. And in terms of what were talking about today, the concern was criticism of the government. And thats what we call seditious libel. Its the criminalization of criticism of the government. That system was here. Now in august of 1765, after the passage of the stamp act, which taxed americans their consent, something happened in boston. They put up, they dedicated a liberty tree and half the town came came out and they speeches all day. There was effigy is hanging of the british Prime Minister and it energized the opposition. This was carried by newspaper ers all throughout the colonies and by one. All these cities put up their own liberty, poles, liberty and debate was energized and it was opposition to british taxes without consent and other things too like general warrants and delivery ministries were just one thing. People started writing pamphlets, rights sides. They wrote poems, they wrote plays. There were all critics sizing britain for their policies. Now, at least technically, all this literature, all this action was was a violation of seditious libel. Jacob made mention of the zenger case. There was 1735. Now go forward the 1760s. The british arent really happy that all this criticism and they start to try to use their seditious libel laws against the colonists. But theyre successful because in order to bring a case, youve got to convince a grand jury to indict. They couldnt do that. Some examples. The boston gazette, most radical paper in america published, you know, samuel adams. They publish all kinds of revolutionary literature. The governor tried four times to get indictments of four times the grand jury said no. Then he went to the General Assembly of massachusetts, tried to get action there. They came back and said no and said the freedom of the press was a bulwark of liberty. You move south to new york city. You mentioned alexander mcdougal, eligible to do was a wealthy merchant. He he circulated a broadside made from the son of liberty. He was identified as as the as the writer. They were unable to to convict him again because of the Popular Resistance to libel. When one more example, because it shows just how desperate the colonial were the rural governors go again a little bit south to virginia. Governor dunmore,. 1775 conflict has already broken out at lexington the concord. He flees williamsburg gets on a man of war british man of war in Chesapeake Bay and he stole to criticize his suffering slings and arrows of outrageous pamphlets and hes very unhappy. Hes like, well, you know, im not going to im not going to be able to indict these these these newspaper publishers. But he has another idea. One morning he sends a dozen of his soldiers on a boat off the man of war into into norfolk. And they go to the of the norfolk intelligence and they take the Printing Press and they take it out to the man of war. Not only do they shut down the norfolk paper, very critical of him, but then they Start Publishing all kinds of propaganda in favor that of the king. So thats the desperation that they had. How could they stop the criticism . It got to the point where the only way to stop it was to take this kind of radical action. Now theres coming out of this period, i have to quote samuel adams, i think was, you know, maybe said it best. Listen to this quote, there is nothing so terrible to tyrants as a free press. Theres nothing so terrible to tyrants as a free press. You can see that today, right . I mean, the settlement talked about authoritarianism thats what authoritarians do. They try to shut down the press. He saw that and. Thats where we are. A steve, you just talked about history of sedition and jacob, i want to ask you about the history of sedition. So as steve and akhil mentioned this acts of 1798 tried to criminalize any criticism of the federalist president , john adams, but not the republican Vice President , thomas jefferson. Jefferson madison objected to the addition acts on grounds of federalism they said that congress couldnt exercise that power, reserving the possibility that the states might. But in their great dissents, the 1920s brandeis and holmes disagreed and came up with the idea that speech should only be banned if its intended to and likely to cause imminent violence and really causing offense against the authorities was not enough. So i want to ask you, whats the history of that principle that you can only restrict speech if its intended to and likely to cause imminent violence . Was it original with holmes and brandeis or their roots back in ancient times . Well, i want to take a step back first. With the sedition act of 1798, because i think that really demonstrates that the sort two conceptions of egalitarian, elitist, free speech survived into two american history. So you see that certainly with the sedition act suddenly federalists are saying, well, the first yes, weve adopted the First Amendment, but basically we have a blackstone in conception of free speech, you know, prior constraints. But if you Say Something against the government, you know, you can you can go to jail. Whereas as madison at least you know if you read his report of 1800 he writes of meticulous detailed argument in of why the First Amendment protects against seditious libel. He specifically distinguishes america from britain where has a much more elitist System America is governed by the people and therefore, you know, seditious libel laws violate that. So thats that thats important. I think those two conception of with us today even in the age of social media we see sort of these two conceptions. But the idea that you know that words should only be punishable when they when they incite to violence or at least when they you know, the two acts is something that you see in tacitus. Its that you see in in spinoza. And of course they are crystallized very clearly in brandenburg, which is a decision which i think a lot of people outside america dont understand, including in my country, my home country, home country, denmark is right now reintroducing a blasphemy ban because people on the far right have been burning korans in public. So now the government is passing a law which says that the improper treatment of religious. Will be punishable with prison of up to two years under a chapter in our criminal law, which punishes treason and threats national. And, you know, it was only 2017 that the Danish Government abolished its blasphemy ban. So i think that principle really is central to the principle that someone also talked about, that if you have serious about defending speech for those that you dont like, you really need to have very, very principles because otherwise human beings are experts at convincing as well as coming up with elaborate narratives. Why free speech is really important, but the communists the abolition lists, the womens rights activists, the gay rights activists are actually undermining free speech or undermining the values on which, you know, democracy depend. And therefore, they have to be criminalized. So i think so. I am a big fan of of of of brandenburg and. I wish that principle was more universally observed. But thats not the world we live in. Yes, we must teach the brandenburg principle as part of our convening today. Speech can only be banned if its intended to and likely to cause imminent violence, not if it might cause a possible act in the future, not if it might offense, not if it could possibly incite people to affiliate with others who might argue, no, it has to be intended to and likely to cause imminent violence. And its the most speech protected principle in the world. And so interesting to learn that it has roots in tacitus and spinoza akhil, help us understand and our exact where it came from in the thoughts of the founders, jacob mentioned madisons report of 1800. Is that the crystallization of the libertarian conception . That speech can only be found if its intended to and likely to cause imminent violence. And then how did it evolve during the civil war and finally make its way to brown, to brandeis and brandenburg . Yeah. Thanks for the civil war, because its important. So heres notes i actually this was not intentional. I get all clothes from downstairs, you know, ties and things like that but turns i think im wearing my Abraham Lincoln socks. That wasnt, you know, for this event. But so and i do have maybe people socks from downstairs. Theyre very nice and have great ties here. Heres the point. Salman rushdie told you because hes in one of the worlds greatest writers, storytelling and narrative narratives, very powerful. Heres why. We have a particular challenge, because were one nation in the world where the great grandchildren of all the other continents actually come together. And that puts real strains on us because we dont have race in common. We dont have religion in common, not even quite language of our forebears came here hundreds of years ago in chains and others. Stories of years with bull whips in their hands and others came yesterday. So the only thing that we have in common is actually our constitution and our narrative. And the big narrative. Brandenburg is good, and brandeis is good. All right. But heres the big there you need to understand the american revolution, which gives us the declaration the constitution and the american war, which gives us the 14th amendment. Thats a big picture. What we americans have in common. We havent common George Washington and abe lincoln, especially more than anyone else. So he told you. And hes right. The brits, theyre so stupid. They actually thats that they put attacks you know americans have voted for they put a tax on paper and the stamp thats a tax on and whos not going to like that the newspaper papers. Okay dont put a tax newspapers because theyre going to push back. Thats very smart and thats the american revolution. You see. And theres anxiety about new Central Government is being created. So the first thing they said, wheres the rights and the Central Government you see, restrict the Congress Shall make no law. And john adams, you know, wasnt quite there for all of this. And he kind of missed the memo. And so he makes it a crime to criticize donald trump and criticize john, excuse me and and hes thrown out on his by the american. Hes the only early president who is because he doesnt get it but to day threats come not just from religious extremism as salman said, and maybe not just from certain Media Outlets that have monopolies, but from state and, local governments. Think about actually the threat today and this one isnt going to help you very much. Says Congress Shall make no law. Well, theres another war, america, to sit the revolution war locals against the Central Government. And we like local juries and local militias. And thats the bill of rights. Congress shall no law on the 10th amendment and militias and juries and the fifth amendment. Grand jury sixth amendment trial jury amendment. Civil jury. Thats steve story. Its about revolution, but the rights actually originally dont apply against states and localities and thats a mistake because states and localities start to suppress and jefferson doesnt fully get it and its a its capital offense in many states criticize slavery. Im not making that up a capital offense the Republican Party outlawed in the deep south in the 1850s, more than the communist party ever was in the 1950s. Abraham lincolns name is not allowed to be on the ballot. In effect, south of virginia gets a zero popular, not electoral zero zero. You can look it up in wikipedia, zero popular votes south of virginia because. Weve outlawed discourse and a great war comes as a result of this. And and in the aftermath, we insist never again. No state can make or enforce any law which bridges these fundamental rights to shout no law abridge thats there. But thats not me. The federal government of the 14th amendment says no state shall maker enforce any law which abridge shall make no law abridge the same words as you see up there. But states and localities are limited. Thats because of lincoln. Thats because of civil war. So final sentence. The only thing we have in common is our constitution and our National Narrative and our kids learn it. They dont know their president s. They dont know the history of the revolution and the civil war, which give us that bill of rights and 14th amendment. And if we dont know, that we die. Okay. Okay. So so thats narrative and we need great Story Tellers to tell that story. And when they come here, they begin to learn that story. Jeff but we have to bring the children here. We really thats the National Narrative that needs to be taught. Absolutely. And its so exciting to think of bringing all those school kids to stand in this space to see the tablet and then to see that gallery and, to see brandeis original opinion and George Washingtons letter to the quakers and mary beth tinkers armband. And its its just a privilege to be able to inspire the next generation steve solomon as Ezekiel Jacob have said many of the founders were not especially committed to libertarian conception of freedom of speech. Jefferson was more concerned about keeping the federal government of prosecuting sedition. But he himself authorized state sedition prosecution in hamilton would have allowed prosecution of laws bad tendency after the facts. Did any those juries that acquitted accused critics of the government in the colonial era articulate. The idea that speech was a natural rights that should only be banned if its intended to and likely to cause imminent violence or was that really just crystallized later the juries themselves did not articulate that because thats not what juries they come back with guilt, not guilty. Grand juries either indict or dont indict. So they dont come out with a necessarily with the reasons for it. But the founders did so in the in the in their papers, their essays, in their their pamphlets. And there were so many of them. They are. They went back to the enlightenment philosophers. John locke, natural and they also worked the those rights that the states had passed which nine of the 11 bills of included the right to a free press and they called it it wasnt just a right to a free press, it was call it the bulwark of liberty. Now, i think that gives us some because if it was just one of a lot of other rights, they would just say freedom of the press. What they saw was the press as a bulwark of liberty, meaning that you cant protect all other rights if you dont have a free press. And so they were also about general warrants. They were concerned about their jury, the rights to a jury trial being taken away without the right to protest. Thats a right to protest you cant protect the other rights youre silenced and you the other rights by not be to stand up to them. And so there are clues there is no committee that sat down and said, heres what we mean by freedom of or freedom of the press. Theres no committee. But i think what you try to do is draw the writings and, their actions and what do they actually understand. And the concept to me and you take that from all the debates that went on now, especially in the ratification period almost i i would say probably all of the ratifying nation conventions involve a lot of talk, freedom of speech and freedom of the press. So yeah, speech is the bulwark of other right. Its so important to remember we just have time for one final round of concluding thoughts. Salman rushdie us to debate the idea that the american principle that free speech should only be banned if its intended to and likely to cause imminent violence is more persuasive and more worthy of respect, better than the view embraced by other western democracies in europe and around the world. That speech can be banned if it offends dignity and if it offends honor Jacob Mchangama tell about the competing european view. It has its roots in the earliest history it was crystallized in the french revolution. It was embraced weimar germany and is rampant in europe today so that our audience understands how different it is from the american view. Yeah. So the classic would be socalled hate speech laws. So every european democracy has to have laws that instance criminalize even making hateful statements, specific groups, whether based on race, ethnicity or religion. And if you want to steelman the case for that well then the argument goes well the nazis came into power democratic means and therefore democracy have to be intolerant of intolerance because. Otherwise totalitarian movements will abuse democracy in free speech to abolish democracy itself. And you could say that well you know to of us who are more persuaded by the american approach could say well european democracies since World War Two have been prosperous stable. You have robust political and therefore. So whats whats the danger . Yes, there might be sometimes someone might be imprisoned or, fined for speech that we would consider that should be protected. Also know things have gone well, but, you know, my counterargument is i call the weimar fallacy. So the idea that by and by germany its an argument in favor of restricting free speech i think rests on pretty shaky grounds because the lived, yknow, democracy which in 1918 or 1933 actually banned a lot of speech, those from nazis and and ultimate the most dangerous thing about it was the nazis were able to rely on the emergency laws that were supposed to protect democracy, to abolish democracy. So the emergency in the weimar constitution allowed the president to suspend all civil liberties. And what happened after the the the the the fire in the reichstag was that hitler leaned on president hindenburg to suspend all liberties and that paved the way to give Legal Backing to basically the establishment of a totalitarian one party state that was entrenched within six months. So so i think historically thats thats not a great argument of course i can understand you know, if i was the chancellor of germany. Could i go out tomorrow and sign a law saying, yes. Now Holocaust Denial is protected speech and nazis can walk in the streets. Thats not feasible for me. From a german point view, just like moral historically, you couldnt do it. So i could understand why the germans would not do it. But i. I just dont think the historical arguments are strong for that approach, which is why i prefer american one. But i also want to say that free speech, free speech is a its a continuous experiment. Right . Theres no theres no guarantee that free will always ensure tolerance and peace and i, i think that has historically, you know the case for free speech is pretty good. Theres no guarantee that that will be the case going forward. But if i were to sort of bet, i would bet on free speech over censorship going forward. Akhil, in just, just a few sentences, because were were almost out of time you. Are you have described yourself as an american exceptionalist when it comes to free. Tell our friends why you believe that the american approach to free speech is better than all other approaches. Well, at our best, weve produced a lincoln. And i dont think any other country has. My parents came from india here, and those of us over here dont want to go to india. So now what i do want to say is there are threats posed by the government, by congress, talks about that, by states and localities. We talked about that. But some of the deepest threats are within our selves because i think theres not just a freedom of speech, theres a duty to listen. And you cant easily enforce that. But we have an obligation to try to listen to our fellow citizens and were failing in that. And 19, my friend edina is nodding your head and i was going to give her a shout out anyway, but she is in her because she embodies this is so every day for to actually read all the major networks. But i do its my kind of obligation a citizen to try to hear folks across the board no law can enforce this. This has to come from within. But if we stop talking to each other and again, this is the spirit of these, and then these amendments and these rules apply against the government. Okay. But the culture the freedom of speech, its an amazing newspaper in america. And people are actually reading opposing newspapers and. Were not doing that so much anymore. But at best we have and we did it in the us. There was a civil war afterword and that should be sobering. Us but i would say, you know, if you are in america, exceptions, we put the thing to a vote not 70, 76 or 77 we didnt throw the critics off the island we listened to them and and then we allowed repression and but we we elected a lincoln who very much actually who wins because of debate open debates that called the lincolndouglas covered in newspapers and are hearing both sides and then voting. Thats how we did it at our best. That was more than a few sentences. My apologies, beautiful beautiful, wonderful Stephen Solomon the last word in this great discussion is to you. You convened us for this national First Amendment summit. What is the one thing about the First Amendment that you want our to think about . We conclude this panel. Yes. So i would ask you very conveniently, thats the First Amendment is up there. Lets just look at it and see how its laid out, because i think this is a narrative of democracy and representative government. These are 45 words that are critical. So starts with two religion clauses which as people protect when they in their inner self, the freedom of thought, the freedom of conscience and they think about sort of placing ever in the universe and perhaps the relationship to a higher thats thats the inner self look at the right we emerge from our self and we are protected in the freedom of speech whereby we are talking about ideas and political ideas and some of them may be very controversial. Thats all well and good, but it doesnt do much politically unless you can get out to a lot of people. And so the next write the founders protected is freedom of the press. The institutional means of spreading that people have among now, once you do that, you spread these ideas across the country. The next step thats protected is you get what you you assemble with like minded people for political purposes and thats, you know, in the streets back then it was back in liberty trees and so forth and so you bring together a political for what purpose to petition the government for a redress of grievances. And thats the final right. So its just a bunch of rights that kind of put together. But there is a narrative of democracy from the beginning to actual political change. And the first speech and press there right in the middle, our absolutely critical to that process beautiful beautiful. For having educated us about the five freedoms of the First Amendment please thank our panelists and please welcome our next panelists. Cococould rejoice. Host