The post, we understand that successfully navigating this tension is vital to protecting a vibrant prepress. Just last week i worked on the stories about a hate crime, actually about the aftermath of some appalling graffiti spray painted at a high school, so we can decide just how much of the offensive language we should repeat in telling the story in the text, photographs and video. Courts and commentators alike are grappling with critical questions, how do we determine the difference between artistic expression and a true threat. There is a line between First Amendment protective journalism and the governments interest in defending its desire to keep some things, perhaps too many things, secret. And how can we maintain a free and open exchange of ideas online, while also ensuring safety and security. Today we are fortunate to be joined by some of the most popular and powerful voices in this debate. Please welcome senator ted cruz to the Washington Post live stage this afternoon, he will talk about his charge and major social media platforms that exhibit political bias by censoring users and content. We will sit down with michael render, the grammy Award Winning rapper better known as killer mike to talk about how we determine what is and is not protected artistic expression. We are very glad youve joined us. Before we begin, i want to thank the presenting sponsor of todays program, our partners in night foundation, please join me in welcoming sam gill, Vice President of the foundation, to give opening remarks. Thank you very much cameron, and thank you very much for the Washington Post for convening this conversation. I am delighted to be a part of this, you are in for a wonderful lineup today. Freedom of speech and the First Amendment is a fundamental value of the modern janice and james foundation. It was founded by the night brothers seeks to support more informed communities. It was a core issue for the night brothers themselves who thought acutely about press freedom. Jack night one said that the truly distinguished newspapers in this country are those who have bared their face and the public wrath and displeasure. They can be reserved only to the degree that the public is fully informed on the forces to which to seek to destroy them. For the night brothers, the seat those seeking to destroy them with the overreaching government. Those forces remain present today because open discourse and brutal facts are always a threat to incumbent power. But whats most exciting about todays proceedings is that they will also address a new set of threats to the freedom of speech and freedom of expression. They probably didnt think much about and could not have occurred to our founders. They have surveyed High School Students for over a decade and College Students for the past few years for the views on free speech. The idea is to understand the rising generations understand these rights. You can find all of the surveys on their site. Todays young people believe in principle in the freedom of speech, they also have an acute understanding that the Public Square now exist primarily online. Its not just a place where issues of public importance are discussed, its a location where young people make friends, find and lose love, discuss intimate details of their lives and formed their identities. Its also where they shop, entertain themselves and just joke around. And then of course there is, too, public, civic and social debris. This new Digital Reality has an impact. Surveys have found that young people worry that an amenity on the internet risks the quality of discourse. They have strong views that hate speech and not be deserving of the same kind of protection as other speech. One of the Big Questions posed is whether a challenge is a key warrant for the freedom of expression. Namely that the marketplace should be as wide and deep as possible. The second issue of course is the digitization that is happening on privately owned platforms for the First Amendment stipulates that its congress that shall make no law. Civil liberties are about the protection of the individual from the region of the government. How should we regard the roles and responsibilities of social media platforms. The answer will not be simple. You people have shown consistently in our surveys that they want a public forum that balances the ability to express oneself openly, you want the form to be open to everyone, and its quite possible that they will accept limits to what can be said in the service of that value. Young people are going to make the rules in a world in which the government and citizens are not the only players in the matter. By rules, norms or laws, the newfound power around freedom of expression, on the commercial entities that have created and now operate the Public Square for the 21st century. What that will look like, and whether it will be a bold new step for the republic or a retreat from the precious freedoms that make the republic great may well be up to the people in this room. It certainly is a moment in which ideas matter. We are very much counting on all of you to continue this discussion, thank you very much. Thank you sam. Now we will bring to the stage the first panel, thank you. Good afternoon, my name is wesley lowery, National Correspondent here at the Washington Post. Im really excited to dive right in to a fascinating conversation we will have this afternoon about issues of free speech and artistic freedom and about this moment that we live in, where we often, so many of our clinical and societal conversations revolve around the idea of whats acceptable speech in public verse whats acceptable in private. Out of those lines bend, so i will shut up and introduce our panelists. To my immediate left, is mike render, which you may know as grammy Award Winning rapper killer mike, to his left is an author and musician, and then attorney john elwood, so why do we give a quick round of applause. Thank you all so much for being here. I want to remind everyone, before we get darted, you can tweet questions, eventually i will run out of good ones, and we would love to hear yours, so you can use that hashtag post live, and tweet out all the smart things they say, but if you send your questions, i will get them on this ipad and i will be happy to give the floor to you all. But i wanted to get started, mike, talk a little bit about this case of jamaal and some other prominent artists. And luther campbell. So for folks who may not know this case, jamaal, pennsylvania rapper, and they convicted him of making terroristic threats and witness intimidation after he wrote a song, and in it, the song was a homage to nwas 88 song, but also spoke to some of his own personal experience. Can you talk a little bit about how you got involved in the case, and some of the other phonetic issues per eric nelson is a friend of mine, and hes an advocate on behalf of the First Amendment rights, in particular, hiphop. If a kid in hiphop this is a politician or policeman, its taken a lot more seriously. Its less scary when its an artist who looks like the majority. So eric fights this all the time, and he fights on behalf of people in my culture in hip hop, and he asked me to call right with him, he asked other guys to get on board. And i sought out one person that when all the weight to the Supreme Court and win, and that was luther campbell. And he had a song that raised all types of things. He was charged with obscenity, and he filed and he won. We are finding wrappers that have name in prominence are less likely to face prosecution. So if we have someone who has a a song, he named it to policeman in particular, and the policeman he named had in some way assaulted him and his friend to the point of injury. And essentially what i saw when i first read the case, was this was just a kid who was angry who knew he couldnt shoot a cop, knew he couldnt go stab a cup, couldnt even find a company and because he had the courage to say this is what i felt like doing, i can feel like hitting my mom, but if i hit my mom she will beat the heck out of me. So he voiced his feelings. And because he voiced his feelings, he is now serving time in the penitentiary. The scary part about that is at what point in my feelings, or the not equal to the feelings of others or the feelings of the majority, and at what point to get prosecuted for feeling away and having the courage to say i feel this way. I can say, and a bunch of us have said, even to the people we love, i just want to kill you. If we let freedom of speech go out the door with it hurts my feelings, i believe we put ourselves in an environment where feeling something in saying it vocally can potentially get anyone of us put in prison. Whats really scary to me is that laws like this usually affect people who look like me first and worst per i want to drill into that a little bit. You brought up the example of johnny cash. How do you think the stigmatization, especially when we talk about hiphop artists who work predominantly black, may not look like the majority of law enforcement, how do you think that that portrayal, and also the misunderstanding sometimes, how do you think that feeds into this. First of all, im a son of a Police Officer and a cousin of two great Police Officers. I have a cousin who is a sergeant on the s. W. A. T. Team, so im supportive of and also a member of pal. So i am not against Police Officers, im not against people who vote for the people who governed them, having Police Officers in my community. What im against is Police Officers not being an Occupying Force. I made a song about the real life of fred hanson, was assassinated in his apartment, it was a scene where police entered his apartment to kill him, so i took that story and kind of meshed my own story of how i got away from cops assassinating me for being a person to speak freely. It was fantasy and fun, but had i been jamaal, i might have been in jail, but it was already because i was already a professional grammy winner. Its tricky for me because i understand the need for law enforcement, i have a personal preference by being policed by people who look like me or are from communities like mine. I think when police are an Occupying Force in minority committees, they are hiring people who do not have experience with these people, and they are being underserved, many of them are only one patrol into a car, many of them are being trained too quickly. It takes a year and a half to be a barber, but six months to be a cop. It should take a little longer. You have to go through more protocol for the United States soldier than you do as a Police Officer. Recently people in my community are tired of seeing Police Officers getting away with what they believe is state sanctioned murder. So beyond talking or rapping, what im afraid of is that we are setting up an environment in which not only the public still feels they are in danger, and they really are, and im not talking about just the black public, but the general public. The people will start pushing back, and that makes me afraid. Again, i have Police Officers in my family, im a supporter of good policing, but i see that the most dangerous time in the communities now is when it young black girl or black boy on the ground and you have three or four cops that dont look like them are manhandling them. And we are going to start seeing bullets flying. So i think that in matters of freedom of speech, i think artists freedom of speech should be protected. If you are not yelling fire in this room and causing people to be injured, i believe you should be able to say it. If you dont leave and freedom of speech, i think that we are allowing agents of the government to murder innocent americans. Without due process. And if that does not stop, you will see more pushing the lines artistically, and then if it doesnt stop there, you see violence. In this case, the Supreme Court declined to bring up the case. I wanted to bring john in here because he worked in a very similar case. Can you talk a little bit about the contours of that case, and how it relates to the conversation we are having. Here, and these issues of free speech and how it relates to artistry. Anthony alanis, somebody who wrote, after his wife woke up with him, he took to facebook and wrote in the style of rap, lyrics saying not very kind things about his wife, including describing killing her and things like that. It had disclaimer saying this is just me working things out, but he was prosecuted successfully for making crimes, and that casey was prosecuted under a theory where the prosecutor actually said in the closing statement, it doesnt matter what he thinks, what matters is what a reasonable person would think. We argued in the case that you have to show and intent of threat, more or less, at least knowledge of the person who is reading it would feel that they are safety was in jeopardy, and you did it anyway. My understanding of the jamaal knox case, and i looked over my notes, i had jamaal jamaals case in my binder, and my understanding was that he argued kind of the opposite. They convicted him of intent to threaten and he was arguing for the opposite, that a reasonable person wouldnt have taken it as a threat. Thats probably one of the reasons why perhaps they didnt take his case, it was a little unusual in that regard. But i also think that there may be more to it, one of the things that came up a lot my argument for aloneness was a different standard. Negligence isnt a standard, but they havent said what the standard is. And there seem to be some interest in recklessness, which is the idea that you know there is a risk that people would be threatened but you do it anyway so you know they will be threatened and you do it anyway. And i think one of the reasons why the court might not have taken it was because the court is a mess on this, they were all over the map about where they were going to go. And then they would have five votes in the majority. So what is the current standard in terms of when something with this is prosecuted . Pugh its all over the map. The only thing that has been established is a campy negligence. Basically the standard isnt is if a reasonable person would feel threatened by it you can be prosecuted. But theres a split, all over the place. Among the federal courts of appeals and among the state Supreme Court. You know, i cant say anything other than its a mess. One thing though, and this is my pitch for the highest standard to show intent, is that the state standard in california, new york and texas, big states with lots of people, all require a proof of intent, and no one is saying they cant protect their citizens. How might this theoretically play forward, how is it different if the person you are allegedly threatening is a public figure, someone who works for the government, its not an individual citizen per se, but someone like a Police Officer or an elected official. I think its probably more likely to be taken as not a serious threat, it depends on the context, but if you do it publicly comments about a public figure, its less likely to be viewed as a threat. The case that inspired a true threat exception to the First Amendment, involved a draft protester saying that if anyone ever gave him a gun, the first person he would take a met was lbj, the court said that was not a through true threat because of the context. But there are a lot of people who do not take a joke well, and in my experience police do not take jokes will. Alonis was generally doing okay, he would postings online and people would like them. It wasnt until he was visited by the fbi and wrote his rap lyrics about that. The sense of humor expired and he was arrested the same day. Its amazing, eminem built an entire career on killing his mother and exwife. I dont think anyone ever showed up at his door. Spank if i threaten my wife, she would kill me. It will be a whole different panel. To make you were the only one on the stage acting, that actually had the case taken up by the Supreme Court. Can you talk a little bit about the contours of your case and then we will get into some deeper questions i played the registered trademark for my band, but the government ended up not liking that, they quoted an old seven yearold law that you cant register marks that the government considers scandalous, immoral or disparaging. In this case, they said the term slant was disparaging but only when it was used by an Asian American band. In other words they said i was too asian to use this term. 7 1 2 years later, i was before the u. S. Supreme court arguing for our rights. Actually the federal courts rejected all of our other arguments, even arguments saying look at the trademark offices using our race against us. They didnt care about any of that they just wanted to talk about the First Amendment. When we brought up the fact that it was a speech that the law violated because of a viewpoint discrimination, a got taken up by the court and thats where we won unanimously in 2017. See your efforts were to essentially reclaim a slayer, right . You were ironically using this term free in some ways, and i would also argue that the term slant is not inherently racialized. You can talk about a perspective or angle, that sort of thing. But according to the government, because i was asian, all of a sudden it became racially charged. Going back to this kind of true threat, how do you think the government should try to adjudicate these questions. How often as an artist, for someone who is creating art to put into the world, what should the governing be in moderating it . Mech i think extremely limited, if not at all. Art is meant to be on the edges, to push boundaries, to cause us to question. Its oftentimes stirred as a mirror. And what we find is artist particularly for marginalized committees, we dont get the same benefit of the doubt as others. We brought up eminem, a white rapper is treated much differently than a black rapper, we found the case, whether its rap music, in particular music reduced by black and brown communities, what we find is that its because those empowered just simply have different experiences. We may not have the same intention, it may not be to suppress speech, or discriminate based on race, but when you dont have that lived experience, and you dont understand what its like to be in a community that doesnt experience the same privileges and rights as others, you wont provide that benefit of the doubt you can connect with that same life experience. Thats why i dont say that dumb nword. Because of that freedom in art and television, i saw as a child, racism challenged on television in a radically different way than it is today. It swept over today, its covered over, something we dont talk about. We handle it much like a middle class family doesnt talk about their families versus confronting those things, and thats an artists job. The artist job is to say why not, to push the edge, push the limit. Im tired of losing, as an artist, my freedom of speech based on the whims of white america. It seems to me to be white anglosaxon and protestant in this nation gives you the ability to make or change the rules at will. And the rules just need to be the rules. Youve talked previously about two different elements and want to drill into. The first of which is this idea, and you were just talking about this, too, the idea, the power of art to force conversation and move a spectrum, and why its important for artist to be able to express things at the mainstream. Also, kind of the double standard, you think about things such as outlaw countries, and yet i cant recall the less congressional hearing around indecency in country music. So what do you think, what you think is the importance of these genres, and the freedom of artists to be able to speak freely, even if that freedom leads to what some people might find offensive as it relates to the writing of injustice. Everything in art will offend someone. You wouldnt have fig leaves over statues if someone at some point had and said all those statues have to all of a sudden be covered because im offended. For me, i think its important that as americans, i can remember elephants, i can remember that was the first time that what is fair is fair for everyone, we see that is not happening in the world, we know that not only poor people or black people, not only minorities, we know that exclusively whites get more or less, he has a better chance. We know that with National Criminalization of marijuana, a lot of people will get credit for, but i can show you a line that leads straight back to cypress hill, and snoop dogg. And if its not what we acknowledge publicly, if that media isnt pushing the line, if they arent giving us that freedom, if the media treats rappers differently than they do country artists, then you will see a galvan is asian of what the prejudices are that we already see. Where if you look like one, two or three, your case may be tried radically different. What do you see john, where do you think the city sits in terms of political expression. Sometimes these conversations are painted, as if they are a crisis, frustrations about a culture, but someone who looks intimately into the law, where do you think things fit right now. I think what we have in front of us is the worst its ever been. As far as threats go, as i say, its kind of a mess. I think there are two ways in which minority viewpoints are not given appropriate ways. One they are more likely to be viewed as a threat, and then secondly, and relatedly, they are more likely to think, so what if the speech was chilled, what was the value to it. Alonis was white, but its like what was the value to this speech. I had to tie it back to a more conventional, political speech. The tree of liberty is occasionally watered with the blood of tyrants, and you know, abortion protester speeches and things like that. I had a few examples because you try to wrap you several political speeches, because nobody cares if a few wrappers are deterred. But as a whole, i cant even get started on campus, because i have a 17yearold who is starting to interview now, and i kind of live in terror, its all kind of incognito to me. What you think about the difference between the government suppressing speech and the conversations we have about things like cancel culture or online mobs. People have the ability to weigh in immediately. How do you all sort that out, right. Because on the one hand, theres a sense of, because everyone has the ability to weigh in so quickly at anything that offends them, it can be a building of momentum. But on the other hand, if im offended by something, is it that my right to say hey, cancel that tv show. How do we waive the rights of the individual speaker versus the rights of everyone. I dont know the total answer but i know that you have never heard a more ridiculous argument than a black man arguing with my white friend, and im arguing pro roseanne bar. Not that im a fan of anything she said or comments to get her show cancel, my fear was, if you dont believe in freedom of speech for those you despise, you dont believe in it at all. My thing is, what she did, was her freedom of speech, she lost her job for, and i was telling my friend, so who was a huge Colin Kaepernick supporter, he said its different. He said she made millions of dollars, she should have known to shut up. I shouldve known in my want for freedom of speech for everyone, i should know that if im going to support kaepernick, people got upset about that and said he should never be able to come back. Then i have to say about the woman who commented about another womans African American dissent look like a movie character that was not flattering, i have to say to myself, according to the private businesses that own them, i dont believe anyone of them should be out of a job. I honestly believe both of them should have a job. What should and the job is when the ratings drop or the stats drop. So if you are not doing that ball like you should, then okay, cool. If you want to bring the ratings to abc, then thats cool. But im willing to be uncomfortable because i know tomorrow i may Say Something. I personally said things that people didnt like, and two weeks later the people that didnt like what i said were on the whipping post themselves, getting with. You know, a lot of people may not like what you say, but to me it matters that you are able to say what you say so i can honestly get where you are and i can decide whether to cancel you. I dont need the whole world for my perspective, to cancel you. Because if that were true i never would have heard and you will play nwa come i never wouldve know what the black Liberation Army is, i never wouldve known half the things from a childhood that formed me into the man i was, because those things wouldve been labeled everything from hate speech to black identity extremists. I want to remind everyone again, i havent checked my phone the whole time ive been up here. Make sure you are spending sending your questions in, i got a question from matt, he asks are there artists who are actively kind of hurting in the argument of the freedom of speech, or are there things artists can do. Can it ever go to far . Even if they are doing a speech that should be protected, something that as an artist yourself, you may have said i wouldnt have done that when placement going too far is going to be determined by your personal experience, two. What is going too far . What is the bar for going too far . I believe as an artist its my job to challenge every step of the way. I get more arguments about hypothetical with my wife than anything else. Why isnt polygamy legal. I had to take a shot at it, you know what i mean. Am i simply going to be persecuted, since ive been a kid, my first grade teacher if he felt that, he was going to say it. I think the artists are not in charge of stopping, they are in charge of stopping or jumping. Its to push the limits. I think its also important to recognize that when it comes to freedom of expression, and went we are talking about the First Amendment, we are really talking about the protection of government punishment and backlash. We are talking about protecting the sensibilities of the public, but we havent really thought about this idea. What does it mean if the government says you will work as an artist, with hate speech. They told me and the general public that my Asian American band that does antiracism work on behalf of the u. S. Government, by the way, is racist. There are unintended consequences, and yes the Supreme Court resulted in my favor but there are many years where it affected my livelihood and my art. There are all these other kinds of things that are to be considered. In terms of artists and that fine line, i think it is a very subjective thing in nature, and thats why i do believe in the marketplace of ips. Because to some people, some words might be racial slurs, they may be extremely expensive, but to other people, especially those people in those committees, those can be very powerful forms of expression and self empowerment. And my argument was like, there would be no such thing as a racial slur if we didnt live in a racist society. Deal with the culture, not the symptoms of a racist society, deal with the root problems first. Jumping off of that i want to get back to something you talked about earlier, you are saying that if the ratings drop, cancel the show, right. And drawing a distinction between people talking about what they want what they dont versus something trending on twitter. I remember, one of the things people got mad at you about was one of the bill marked outrageous cycles a few years ago where bill said something was a joke. I thought it was a pretty funny joke some people were offended by it. I tell people all the time, somebody in the house didnt know what to tell him. The joke didnt bother me as much, because he has been at tireless advocate on behalf of africanamericans that would not have the opportunity to speak up in places. When you look at, from the 90s, the loss of a few late night talk shows, where else would you see cornell west or killer mike, for ice cube, where else would you see these radically different than the norm African American experiences or voices if it were not for more. He had been more of an advocate then not. So i can take a dumb joke from an ally and tell him you know, that was a stupid joke. But i didnt want to see his show get cut off the air. What happens to all of the people who for my community may have a train of thought that is not given to them that speak directly from our community. So i wasnt willing to join the take bill down protest if it was just a bad joke, it was just a bad joke. I think we have now come to the point where there is a political meme, where people got angry because i complemented one of them, it was funny to me, i left. He made me a meme that was not complementary of me, but i appreciated his perspective, because it was different than mine. The people who follow me got angry because i left at a guy that they didnt like. Whenever we get to the point where we are like you hurt my feelings and im going to cry, my mommy is going to punish you, we are trading dangerous ground. I love the uk, its a great place to visit. The fact that they can designate what is eight speech now, the government can tell you what is hate speech, the government has taken from countries, robbed and looted, has not returned gold to africa, how can they tell me whats hateful, i dont trust that. I dont trust government enough to be morally sound or empathetic enough. I dont trust any government enough to give up that much of my rights. I have a 24yearold, a 21year old, 17yearold and ,12, my biggest fear for their generation is that they are going to get their feelings to a point where they give their power over to the government. Because when you give your power over to the government, you give your voice over to the government and ledger whims to the government, and thats a very dangerous thing to me. On tv now, they will try to tell you to say the n word. No, i can say it. My greatgrandparents suffered through this, we have captured this word, i cant tell my uncle what to tell himself, he has endured that struggle, so to me, we have to get to a point where we are willing to trust the groups that are smaller than the majority, we are willing to trust individual freedoms over the rule of government and also listen to people cry, moan and complain and we will create a new law that it tomorrow. In a time when people can express their frustration and outrage, and when we are having a country that is shifting and changing, and people are being confronted with things they might not have seen or thought about previously, how does the government interact with that. That is the government regulate obscenities to the extent it can, and beyond that, how does it do so in a way that doesnt allow the government to decide what is hate speech and what is not. Because some of us may be a little skeptical of the governments character. I think this is a point that someone might have made, minimally, i view it as really performing a minimal role, because state composure is a particular thing to put in Something Like free speech. Especially at this point, where basically the government has virtually a perfect way to figure out from your phone, exactly whether you had the wrong mens rea, i dont think theres any reason why you cant limit threats to actual intent to put someone in fear. You can find everything on the phone, you can prove up exactly whats going through their head, you can probably find some texts 30 seconds before hand is saying watch this. Theres no reason why you cant make it as free of the marketplace as possible for speech. With that, i think we will wrap up and hand off to our next panel. Can you give a quick round of applause for this excellent conversation. Thank you guys. To make a decision to charge with espionage crimes is unusual. Most cases having targeted government in place, not the people who publish the information itself. Gets problematic is the way the Justice Department seems to be looking at it area they are covering lots of things that is also essential for freedom. How do you protect the identity of sources, how do you have a secure communications with those sources. If you prosecute them on all those issues alone, then its clearly a problematic situation. Hi everyone, im sarah allison, reporter with the Washington Post, im joined with my colleagues dave salas, on the far left, and then a member of the Washington Post legal team, calais auclair, shes the deputy general counsel animals of please welcome sammy unger back to the post, hes a director of the free speech project at georgetown university, a former reporter here, and the author of the book, the papers and the papers. Which is of nuclear significance to our conversation. Before we begin i want to remind everyone in the audience that you can tweet questions using the hashtag post live and i can post them to the panel later in the discussion if they are good, im joking. Okay, so the news of julians indictment and the decision to indict him with the espionage act has deeply concerned many watchdogs. They believe they are going after publicized government information, and it lays that groundwork for future infringement of the press. Particularly issues of National Security. I want to open up to all of you, but i guess i want to start with you, leah, whats the difference between prosecuting him and rescuing the post. It has generally not been used by the government is what we traditionally think of as journalism. And working here at the post, i think emma seeing how responsibly we conduct our journalism, through the ethical boundaries that we draw, i think that there may be one reason for it. But those sort of guardrails, the ethics and responsible journalism, are not built into the espionage act. So at this point, i think that it remains to be seen, whether is that meaningful decision and what they alleged in the indictment and what our journalists do every day. And certainly, this is as i understand it, the first time there was a pure publication of this information is the subject of an indictment. You obviously have a lot of experience with how Washington Post public plea post this information. What is your take on it . To make this a couple of things to consider, first of all theres 18 counts, the first one he was originally indicted on was a hacking charge, it was a conspiracy to commit computer fraud, then the back. Can you justify to people who dont know, it was specifically about trying to help break the password. Saying this is how you do it. Coaching to crack a password. That charge doesnt bother me at all, we just dont we cant break the law, we dont try to crack codes, we are citizens, we are not above the law. We dont have policing, or the right to arrest. The charge, the other 17 counts are more concerning, sort of a slippery slope perspective, the idea that obtaining classified information and then publishing classified information, its a threat to National Security. And then somehow, its treason, essentially. As i sit here today, knowing the kind of safeguards we have built into our editorial and legal process, not super concerned about it, because as journalists, we are just citizens in the same fundamental protections of the First Amendment are the very same things that protect us as journalists. We are not credentials, we are not licensed. Thats for me with the slippery slope argument is will remain to be seen whether its successful or in the future there attempts to go after julienned to go after journalists based on us panache. I want you to give us your whole pentagon papers. Theres a portion of the espionage act that talks about the intent to cause harm to the national interest. Has that ever been tested and is that an area where people can try to draw a line between different types of actors who are publishing information . The intent piece of it is going to be a complicated piece of this case and one that has not really been tested too much. Its hard to get to the intent of someone obtaining this information and polishing this information. I think that is a possible line between what we do here and what assange has alleged to have done. I think its a tricky area to get ones intent and there are different portions of the statute that apply to different types of information and for some there is a heightened intent requirement. I think thats one possible area with a distinction between what we traditionally think of as journalism and what he alleges to have done flushed out. May i Say Something about the espionage act . It was passed 102 years ago this week. It is really a world war i era law. It came two years later in a famous case of a german immigrant who was bringing pamphlets against the draft and world war i. The court did implicitly endorse in unanimous opinion, did implicitly endorse the espionage act. It has never seriously been challenged. Thats 100 years ago that his conviction was upheld. An amazing thing because its a vaguely worded status and a journalist would realize, its very difficult to prove intent and courts have thought otherwise. Its one of the reasons why it has been good for so long. One troubling statistic is, let me think of the numbers. Of the 13 people ever prosecuted under the espionage act, eight of them were charged under pres. Obama. So more than all other president s combined. In recent years it has worked. People have been convicted. Lets took look at the free crack free press paradigm. You are the authority on that. Can you help us understand how the case set the stage for where we are today . Dependent pentagon papers most people remember i have a little note that they began publishing 48 years ago this month to 1971. June 13, 1971. It was a study that defense secretary commissioned. It was a history, it was intended to reflect the lessons of american involvement in Southeast Asia for future study. Im not completely sure that Robert Mcnamara really read this story but he was stuck with them. They were very few copies and there was a guy who helped write the pentagon papers and had one of the copies assigned to him going through los angeles. Anybody who has seen the movie the post this is like the cliff notes version. Right. So having his children, his teenaged children cut off the classification marks and then copying the papers at his girlfriends Public Relations office. The details are not all that dramatic. It took him, well it took quite a while for him to persuade me to read it, even. He would take it for people. It was a huge thing, 47 volumes and trying to get to various people to ask that it be made public and it never succeeded. Is a long story, to make it short, he basically gave a copy of the papers. He had xeroxed various parts of it. I will skip that for now. The spent months examining these documents. They had hotel suites with security and they were looking them over and trying to decide if there was anything they could figure could harm National Security. They decided it didnt. June 13 they began publishing documents and within a couple of days Henry Kissinger had persuaded Richard Nixon and his attorney general John Mitchell that they should try to prevent publication. Not prosecute, not bring criminal charges, but to have a prior restraint from a continuation of the publication. Ultimately they failed but the remarkable thing was that the soliciting general of the United States who argued not only for the Supreme Court but the post case at the us court of appeals asked the pentagon. Tell me the 10 or 12 things that are really dangerous. Really compromising. They could not convince him that there were any. This distinguished legal scholar up at the Supreme Court trying to persuade the justices that this was going to do harm to National Security when he himself did not believe it. You said you had come up with similarities and differences between Daniel Ellsberg and julian assigned Julian Assange. At the beginning, ellsbury was not so favorably viewed by the public and certainly not by his colleagues and former colleagues in government. The key thing is daniel ellsbury never claimed to be a journalist, never purported to be i dont know if the term existed at the time but he was a whistleblower. He now regards himself, almost 90, regards himself as an earlier whistleblower. Julian assange purports to be a journalist. As my colleagues have said, we dont really know what he is. And by the way, i think most journalists are very uncomfortable between assange being called a journalist. He has sort have been unpopular, hes been obnoxious well its an interesting question about whether you like someone are not. Which is sort of irrelevant for questions of principle and the law but it does make, it makes it easier for there not to be a lot of Popular Support for someone. And it makes it hard to accept him as a poster child for these really profound issues. Although weve talked a little bit outside about how we dont always get the best examples to try to decide these cases on like the people versus larry friend flint, it was not the highest minded content but thats the whole thing. But we are stuck with assange whether we like it or not. Hes not a publisher, hes not a source really will he is a publisher right . A publisher of information. He published it on wikileaks but it didnt pick up attention until people picked it up initially going back into the history when he released the Apache Helicopter video, which was the height of his popularity in fact, he had been releasing things and then decided to go big. The source was chelsey manning. The person he persuaded to provide an extraordinary number of documents. It was a very different thing from the pentagon papers in the sense that daniel ellsbury always assumed someone some of us didnt agree with that at first, but his criminal prosecution in los angeles. He always believed he was going to go to court and have to defend himself. He had lawyers lined up in advance. He doesnt want to have to defend what he did. Even though i do think we are stuck with him representing these profound principles, i think some would say if he believes in these things he should be willing and prepared to defend himself. In some ways theres more of the similarity between Edward Snowden and ellsberg. I wanted to move on to the question of following the pentagon papers there was an unspoken bargain of mutual restraint which ended during the Obama Administration. You pointed out that they prosecuted more leaks than every Prior Administration combined. So im going to open up to everyone. What accounts for this shift in dynamic . Do you have any thoughts . Starting with the Obama Administration . Why . It may not have anything to do with this administration. I really dont know the answer but one thing is that the nature of journalism has changed so much. There are so many more leaks, theres so much more content being put out every day and that may just increase the pressure to try to clamp down on those. The Obama Administration did seem to draw a line at prosecuting the sources, and understood it as that taking the additional steps that the Trump Administration has and looked for conduct in terms of whether he was aiding and abetting the source and leaking this information. It certainly has changed the climate legally and in the newsroom in terms of how you treat your sources. How you protect them. I think part of the explanation is that pres. Obamas attorney general was a hardliner on leaks of government information and i think he persuaded the president that this had to be stopped. I just want to say, i want to echo what she said because ive been at the post since 1999 so ive seen the shift from the analog to digital. I started in journalism when there were publishing cycles a day and there was no competition. That all changed in 99 to about 2005. It was like suddenly everybody could publish everything and people were able to put databases up online, weak stuff anonymously, it was like all bets were off and all of the traditional rules changed. We saw the decline of the analog journalism industry but fundamentally was at the core of our mission. I think the Obama Administration , i dont know about political agendas, but maybe that surge was a reaction to that which is we have to put the lid on this. Everyone can leak instantaneously. We cant just go to the point post and lobby them. So lets start making examples of people and i think thats what you are seeing. Some of it felt like maybe it lost a little control. Suddenly everybody has the power to publish everything at once. We dont control the ink anymore. You cant count on lets invite the publishers and beat on them. Its because people like assange and other people can publish from their homes and hide their trails. Obama advocated open government. That was his government and he responded a little differently. He promised to reform and transparency and we all know that didnt happen. In fact there were just as much if not more. I still have the letter that he sent out when he said there should be a presumption of openness, not close to miss and it was actually the opposite. I think its interesting because there has been some criticism of the relationship that exists between big publishers on the government. Just because it was a very gentlemen the kind of controlled dialogue. There was disagreement but it wasnt this renegade out of control having to put the lid on the spot. Then you and i agree and we are both guessing here on stage which is dangerous for everyone. [ laughter ] i want to talk about the Obama Administration making a distinction between sources and journalists. Do you think that they would benefit from a federal shield law or do you think they should face the same legal jeopardy as their sources . I think there have been many efforts to get a federal shield law in place and we certainly have supported those efforts. Whether that will actually come to fruition remains to be seen but states have their own laws and we benefit from them and use them all the time. It is an important tenet to our investigative and other journalisms and how we treat sources and newsgathering materials. I dont think it would hurt. The only question that i would say hypothetically is when you get into the weeds about defining who is doing journalism. And just as an individual, i have a little bit of discomfort turning this into a credential cardcarrying elite organization. Early journalism was founded on broadsides. The headline was important if true so i think thats fundamental that everybody can publish. A shield law would inevitably raise the question. Who gets protected . I dont think any of us want a federal lobby defining who is a journalist and especially not right now. We would probably have to ask facebook first. Joke. Instagram. [ laughter ] yeah, didnt go over that well. I want to go for specific cases because the post has obviously dealt with some very sensitive government National Security information and made a lot of choices around what to publish and how. We are going to first go to and everyone can listen along because im going to ask you to weigh in on this but in 2005 it was written about the cias used of covert black site. In several countries it was used to interrogate terror suspects. It including ongoing debate within the cia about the ethical legal and practical issues of the use of secret prisons. That story ended up very much being published but there was a lot of discussion about what to do. I just want to read a little bit , and im going to put up on the screen what len downey ended up saying about this. Im going to just skip to that, excuse me. The post editors agreed to meet with the directors of National Intelligence and the cia and later bush invites president to cheney to listen to their concerns. As executive editor i decided to publish the secret is in story but without the names of the Eastern European countries where they were located. Because the story stated this disclosure may disrupt counterterrorism efforts and could make them targets of terrorist retaliations. Her editors were kept informed about the concerns of the government about the publication of this material. Inside the post what len downey said his the discussion centered on whether the damage seemed real and whether it outweighed the Public Interest. I just want to ask your take on, i know you were not in the room when those were being made but it was nice to open up to people like what is the discussion when a story like that is under consideration . First of all i did not edit that story. I was at the post at the time and shes an excellent reporter that ive worked with closely. That particular example, and a couple of others, topsecret america and the snowden stuff, they involve matters of National Security. They were all the last 10 to 15 years involving three executive editors. I think in all three cases this is a great example. It shows the prudent care and consideration that we give to these matters. The biggest problem that i face is that i dont know what i dont know and why reporters dont know what i dont know. And thats true. We dont just take material and in this case, this piece that he wrote, they are conferring in real time with the directors of National Intelligence and the cia and white house tell us about this material. Lets hear your concerns. Lets figure this out. Ultimately he made a decision that he felt came down to on one hand heres the Public Interest but on the other hand we dont want to overstep our bounds. As a journalist i dont want to get people killed, i dont want to create problems. I want to spur discussion. The way that i think about stories which is true for National Security, i think about all of the reporting that we do whether its a story about a police shooting, you want the people that you are writing about, its the no surprises real. They should not pick up the Washington Post and suddenly realized they been working on an investigation for two years. Thats a journalistic failure. Journalism should be a cycle of communication right . Weise we see a lot of got you type of stuff. That is conducive to getting at the truth and thats not conducive to getting people to actually cooperate and tell you why we should not publish this entire document. You want to have a dialogue and i think that speaks to the kind of care that the newsroom exercises. The government did not tell us to do that. He made the decision. One traditional factor is a question of how do you establish what harm may result . Theoretical. The classic story is jfk persuaded the New York Times in 1961 not to reveal that there were cuban exiles training to evade invade cuba. The New York Times knew it but didnt publish it. When that turned out to be a disaster, bay of pigs invasion, i mean total disaster with deaths, president and he said he wished they would have published it. These are simpler times in some ways. No internet. But world war ii, the Chicago Tribune found out that the United States had cracked the jack and his code, the battle of midway. It published the story and the japanese never noticed. That might be worse. It is so much more complex now. Its not a comfortable thing. Theres no rulebook. Its casebycase, realtime, thats why its very conducive sometimes. Its very competitive so you cant always show your hand but its conducive if you are doing an investigation to engage earlier than later. Somebody gives you a trove of documents and you have to interrogate the material. We dont published just to be provocative. Stories may be per not provocative but we think theres a Public Interest. Thats what drives me. You mentioned a case earlier when you are working about the shootings and went back and called every single do you want to talk about that . It was a great suggestion. Weve documented Police Shootings for four years. Five years. Im losing track. In 2015, the second year of the project we said lets name every officer involved. If there are 1000 shootings a year you can extrapolate the number of officers. Initially i thought because the entire project was built upon other media sources, every day two of our researchers go in and pull the names out of the media accounts. We thought, well we can actually add the names of the officers from the media account. All three of you said even though these names are already out there we should call every officer. I said why . Its the no surprises rule. Being named in the hometown newspaper because you shot and killed someone is one thing. Being on the Washington Post website for eternity, the internet lives forever. The way back machine will capture rid of people take it down. Thats a smart call. We attempted to talk to every single officer. I want to say two of them spoke to us. Thats the kind of care that we take. There is no rule that said we had to do that but it was the no surprises idl where he doesnt pick up the paper and youre on the Washington Post website to go back to the assange case, we still dont really know what or how much damage may have been done to this day. Of course the cia and other intelligence agencies were not about to say what was damaging because that in itself would reveal something and thats what makes it so different from the pentagon papers case. It was a whole new domain. I remember when some of those papers were published everyone said well its good that the Foreign Service officers serving this country or that knew how bad the president of country was because there were some very embarrassing leaks but underneath there could have been some damaging things and Julian Assange did not exactly consult with anyone. Later Edward Snowden claimed he reviewed all of the documents before releasing them. I myself am skeptical. The post also withheld aspects of that. He has said before publicly that they conferred with National Intelligence and the white house. The main reporter, they made a decision to not share every powerpoint that dealt with prison which was the intelligence gathering apparatus. Some people criticized the post for that and others say the post went too far. Marty said publicly if the government had had their way they would not have written anything. I do want to highlight. He did say that we did not agree to every request of every sort. Had we done so there would have been no stories whatsoever. The agencies were opposed to publishing anything at all and what we saw was something that went beyond specific methods that they have guarded on grounds of National Security. I think there was a fight. The documents revealed that the nsa was engaging in surveillance and data of breathtaking intrusiveness. It used to be asked a lot. Whom do we trust to say can journalists be bold and cheeky enough to say that they know better than the government . At least for a long time i would see the answer was yes. Journalists had a better perspective. I think these things which we never anticipated. Its a different story. In some ways its a much more complicated thing, when you are dealing with a complicated surveillance program, you have to get comment. It was just a journalistic 101 kind of question and if they have an interesting comment that can change what you are eventually going to publish. It happens all the time. Whats interesting about the parallel, people compare snowden and assange. He explicitly handed over information to journalists because he wanted them to make the kinds of publication decisions that journalists typically make. I think in some ways thats the opposite of what assange did and he stepped right into that. I dont want to finish on you but i just want to give you the opportunity to talk about a little bit about if these kinds of cases change the way that you think about legal issues that come to you at the Washington Post. Its what weve been talking about, what we do ethically is responsible journalists. That distinction between what we do at the Washington Post and what he is alleged to have done is an ethical distinction and not a legal one its not built into the espionage act. Its applicability does not determine whether someone is a journalist or not. Getting back to your first question that is why the indictment raises questions about its applicability and whether the espionage act would be used against traditional news organizations like the Washington Post. In terms of what we do, certainly this is something we keep in mind, for better or worse we are not dealing with classified information every single day. I think having a newsroom that has such a strong editorial structure and that we rely upon to make so many decisions over the course of reporting, and things come to legal when theyve reached a certain point. Day today i dont think this impacts what we do because we continue to act as responsible journalists. That is not to say that there may not be another dump that will sharpen these issues and force us to reckon with them. Obviously as the indictment plays out if it does, that will obviously inform the contours of the espionage act as applied to these different circumstances. Certainly it is alleged that they are similar to typical Investigative Journalism activities. That is something we certainly need to think about but we have such strong practices in place that at this point we feel pretty confident in terms of what we are doing. At least the first indictment which as youve said, there was a lot of that that was not problematic but one of the issues they highlighted was the concealment of a conspiracy through using signal which is an encrypted way to have a conversation which is extraordinarily common among journalists. Thats an effort to conceal who we are having conversations with so that sources dont lose their jobs. We have to protect our sources at the end of the day and we dont want to intentionally or unintentionally out them. Our credibility is all we have. We are citizens who happen to like writing stories and gathering information. Again, what happens to assange matters a lot in the future. Chris was never convicted not because the government didnt put on a strong case but because of government misconduct. The case never came to a conclusion. He was neither convicted nor acquitted. It would be interesting to speculate on whether the government will commit misconduct against assange as well ands oil its own case. This is probably a temptation to do so. I guess we have to stay tuned. Im afraid thats all the time we have. Thank you all for coming and thinks to my excellent panel. We will continue the conversation. Thank you. [ applause ] things are happening. Names are taking off, people arent getting through. Youve heard the same complaints and it seems to be if they are conservative, if they are republicans, if they are in a Certain Group theres discrimination. The First Amendment and the bill of rights begins by protecting our rights to free speech and our democratic processes depend upon robust free speech. Speech with which we agree and speech with which we disagree. Im the senior tech policy reported here at the Washington Post sitting next to sen. Ted cruz. Thank you so much for being here. Thanks for being here as well. Just a reminder that i have an ipad up here so i can take questions for those who are and are not in the audience. Thanks again. Lets dig right into it. The clip that we just heard was from the hearing that you convened. Just a few weeks ago talking about this issue of conservative bias in social media, why dont you start by walking us through why you had the hearing and what the concern might be. I chair the constitution subcommittee and the topic of the hearing was political censorship on social media and i will tell you is i have traveled the state of texas this is a concern that i hear from texans, from americans across the country that the power being amassed in a handful of Big Tech Companies is a level of power really unprecedented in our political discourse. If you look at the power that Google Facebook and twitter have, it is power that William Randolph hearst could never match. We have now in terms of the political discussion roughly 70 of americans are getting their news from social media. For young people roughly 95 are going to you to regularly. This was a source of information and there are consistent patterns being demonstrated a political bias. The Immediate Response is will prevent. Whats the evidence . That underscores part of the problem. Theres no transparency whatsoever in terms of the extent of the bias or lack thereof. At the hearing we talked about specific anecdotes. We talked about for example, i asked a representative from twitter if they considered Mother Teresa to be hate speech. I put up a tweet that had a picture of Mother Teresa and a quote where she says abortion is profoundly antiwomen. Twitter initially blocked that, they ultimately allowed that to go but they initially blocked it. I asked the representative is this hate speech . They could not answer that definitively and weve seen instances like Martha Blackburn when she announced her campaign. Shes a city member sitting member of congress and got elected from 20 tennessee. Twitter blocked her announcement video again on the question of abortion because presumably they disagreed with what she was saying. What is so pernicious about this, if you have a media outlet that is skewed right or left you can say i dont agree with these folks or those folks but what is pernicious about social media is the ability to block things invisibly so that if your view is disfavored you can put out a post or tweet and it fades into the ether. You have so no idea about how many of your viewers are seeing what you are saying and like why is the ability to collate your feed so you only see the input these companies want, i think it is a collection of power over the political discourse that to me is deeply troubling. We will unpack some of these specific examples but if theres one thing that maybe unites democrats and republicans its this feeling that some of these social Media Companies are black boxes . Absolutely. We saw Mark Zuckerberg come and testify and it was a joint hearing of judiciary and commerce. I serve on both committees but it was massive like 45 senators which was a complete mess anytime you have 45 senators asking questions. It should have been ominous that of those senators sitting there, virtually every single senator asking questions were deeply skeptical of the practices of facebook. That ought to be a warning sign that that degree of unaccountable power, we just saw one of facebooks founders come out and say this is too much power in facebook needs to be broken up. I think there is concern. Do you think they should be broken up . I think theres a good argument. Elizabeth warren tried to buy advertisements on facebook arguing that it should be broken up and facebook blocked her advertisements in what i would say is not exactly an exercise of judgment or wisdom. She tweeted out saying this is an example of how big tech has too much power. I did something ive never done before. I retweeted elizabeth warren. Let me bout talk about an area where you dont agree which is this issue a political bias. There are a lot of democrats expressing a concern that they thought it was somewhat invented and even folks from the right have asked the question of whether there is in fact serious evidence of systemic bias, top to bottom bias seeking to limit the reach of conservatives. The americans for prosperity which is definitely not on the left side of things claims that some republicans were making not only unfounded but a dangerous public narrative. Is there evidence of systemic conservative bias . I will readily concede that we are arguing by anecdote and for anyone making Public Policy argument by anecdote is very unsatisfying. Its not the way to do it but theres a reason why. Nobody has the data other than these companies. For example when i put the Mother Teresa quote, and a whole bunch of examples of prolife quotes that were put out the twitter suppressed and i said have you ever suppressed anyone on the other side of the debate . Have you ever suppressed anyone sending a prochoice tweet . They wouldnt give an answer. Blackburn. Her announcement video. I said have you ever suppressed any Democratic Candidates . Announcement videos . They wont answer that. Nobody knows. So when zuckerberg testified, i sent about 640 written questions. A whole bunch of laws from associates tilt a ton of hours coming out of that but i asked all sorts of questions. I asked for example in 2016 how many posts from republican officeholders did you block . How many posts from democratic holders . That is an objective answer and if the data came out that they blocked 3205 from republicans in 2907 from democrats those may actually go and say theres not a pattern of political bias. If on the other side it was 10,000 posts from republicans and three from democrats, that would raise serious questions and the maddening thing is the answer that facebook basically gave was go jump in a lake. Were not going to tell you. What do you do . Whats the next step . One of it is focusing on the scope of the problem which is what the initial hearing is designed to do and we are doing a followup hearing with google. The reveille i will readily admit is complicated if there is in fact a pattern of political bias. He admitted that Silicon Valley, i think his phrase was overwhelmingly liberal. Facebook said they have 15,000 people engaged in nothing but content review. There reviewing content deciding which to allow and which to block. That was a ton of people. I set of these 15,000, how many of them have ever contributed to a democrat . How many have contributed to a republican . If there was anything resembling Political Data that may exonerate them but they refused to answer. What do we do about it . That was the question. Everyone agrees that a federal Speech Police would be a terrible idea. No one wants to see the federal government engaged in this but there are at least three potential remedies we should think about. The first concerns section 230. Under that, Big Tech Companies have a special immunity from liability that nobody else gets. If the Washington Post libels someone they can be sued. Big Tech Companies have an immunity from that from the same lawsuit the Washington Post would face. The Reason Congress gave that immunity is because the risk these were supposed to be new trick. The reasoning was if these are the posts of third parties its not fair to soothe the social Media Company for what parties are saying. What Facebook Google and twitter have made explicit is that they dont intend to be neutral. They are putting their thumb on the scale. They are not being neutral. The ceo of twitter says they dont want to be neutral. We saw recently for example youtube d monetizing conservative comedian Stephen Crowder saying he didnt violate policies that they were going to demonetize him anyway. It strikes me that if they are going to be partisan gatekeepers that theres no reason the big tech Media Companies should have a special immunity from liability that no one else does. Stephen crowder has been in the news quite a lot. You dont think youtube should have taken x action . Absolutely not. To give folks a sense of what has happened, he was a comedian and a conservative pundit attacking a reporter and at times called him an angry little , queer,j do you think that that should have been allowed to stay on you too . Insults are included in free speech and if someone doesnt like what someone is saying, the response is respond to them in pushback. Let me give you an example. Just to be clear this is an example of where the reporter on the receiving end of this had pointed out pretty publicly that he had been the victim of harassment, the victim of threats, there is a clear link between what had been written online with the threat of real world violence offline. Hold on a second. There was no indication of real world violence. Youtube explicitly found that what he said did not violate policies. As i understand it, did he have some epithets . Yes. But the Public Square, if you go into my twitter page and pick any random tweet, i could tweet about the weather outside and i guarantee you there will be a bunch of commentators telling me to do things that are anatomically impossible having all sorts of insults and they are protected. They have the right to do that. Free speech can be messy and ugly. I will give you one of the classic examples with. They are ignorant, bigoted racist morons and get the subpoena Supreme Court said they rightly have a right to march. The answer to their stupidity is not to say you arent allowed to speak its for us to say that is ignorant and bigoted and racist and moronic. If this reporter didnt like what crowder is saying, engage with him in substance. Dont call on youtube to silence it. For that much power who in their right mind would want political discourse controlled by a handful of Silicon Valley billionaires . What if it leads to violence . We see time and again where the things people post do not stay online. The most extreme example was the shooting in pittsburgh at the synagogue. It had been posted online by the attacker attacking people of the jewish faith and carrying out violence as a result. What happens in this case . I think thats a false analogy. If you have videos of mass murders violence or a different beast as is routinely the case, snuff films or airings of murders are not aired, thats a very different from saying okay. Should the communist manifesto be available . If you want to talk about something that has led to violence, billions have suffered as a result of the communist manifesto. My family in cuba. My aunt was present and tortured but i will give you an example. No it shouldnt be silenced. If we are in the business of saying some ideas are too dangerous to be heard, that is madness. But attacks on people of the basis or sexuality should be protected, should be allowed to do those things . The rod rubric brought rubric hate speech. Some of the questions that i asked facebook. Are the following statements hate speech . Is the statement that a man and a women or is the statement there are two genders men and women, is that hate speech . They will not say if i ask twitter and facebook, if someone quotes verbatim from the torah, the bible or the koran, nothing else but simply quotes from one of those sources, is that hate speech . They wont answer. And i think thats a very dangerous world. If you disagree with a Public Policy position there are all sorts of positions that i disagree with and im not trying to silence the people who say that. The best cure for bad speech is more speech. If you disagree with someone saying dont silence them what would you do about these things . I think people should be allowed to debate freely and theres a check. If you appeal section 230 theres a check on libel or slander. If i wrongfully accuse you of being a felon and you are not, you can sue me and collect damages. There are checks in the Public Square. What prevents the Washington Post from any given day publishing views . Whats different about big tech is that its invisible. Nobody knows for example, we have examples of blocking but we dont know for example if i tweet something right now, ive got three or 4 million followers. Many more than i do. I have no idea what percentage of my followers actually see what i say. I dont know if its 100 , 90, zero point no idea, no measure and no accountability. Let me give you another what im trying to get at is where the line should be. At one point can a company step in and Say Something someone has posted is causing or threatens to cause harm. They can take that sort of thing down and will not take a lot of political heat. We have a common law system that has existed for years so we direct threat of violence can be called down. If someone says assault so and so or murder so and so that could be criminal conduct. That is different from an insult. Unless its criminal you think it should stay online . I think we should error in favor of free speech but i think number two there should be transparency. Here are questions that facebook and twitter refused to answer. What was the average add rate that facebook charged the Romney Campaign in 2012 in the Obama Campaign . As far as i know nobody knows the answer to that. Would say they are roughly comparable. Would it trouble anybody if the campaign were charged three times as much . 10 times as much . Or suppose facebook decided they like republicans. Nbc could not do that. They could not say we will run republican advertisement for free but not democratic. There is zero accountability on the political bias. They simply say trust us and even if you agree with their politics, that kind of unchecked powers should trouble you. Lets turn to something that happened a few weeks ago which is this fake video of Speaker Pelosi that circulated online. This was a heavily doctored video slowed down to make sure make her look like she was inebriated. Facebook ultimate we chose to leave it up. Should they have left it up . At the end of the day i dont know. They were private citizens who did this who had his identity revealed by reporters and he was subject to a lot of harassment. Free speech is messy. The attacks you dont know if the video should have been taken down . If something is fraudulent i think that is a valid basis for taking something down. If it is deliberately fraud and not clearly satire, theres a difference between fraud and not liking whats being said. Theres a great deal of subjective decisionmaking with no transparency in terms of whats happening. To your point, how do you address Something Like alex jones . This is someone who publicly was posting conspiracy theories about a good number of things including the shooting at sandy hook. At times it appeared you had been defending his ability to say that. What are your thoughts now . Should he have been able to continue . I think alex jones is a nut. I dont listen to the guy, i dont know what he has to say but i also dont like that a handful of billionaires suddenly decided this voice shall be silenced. We the chamber have spoken and his listeners have no right to hear him. Part of the reason that i spoke out is because he has been a son of a to me. He routinely goes on air. He didnt do it but he did take out jimmy half. I dont like crackpots that accuse my father of murder. Thats why i defended his First Amendment rights. Because the First Amendment is about letting people speak and letting the marketplace of ideas decide. Its precisely because i was defending someone who comes after me to illustrate that this is not about my particular policy views being favored. Journalists used to be vigilant about the massive power. It may be that the views they are suppressing disagree. If they are suppressing pro life views most journalists are not prolife so what skin is it off of my nose . I think thats a dangerous power to hand over if you suddenly have two or three billionaires deciding what speech is allowed and what speech isnt and its all invisible. This is an example of someone who has a large following that had been enabled by the social media platforms that banned to him. You dont think those companies have a responsibility to limit the spread of that . I will note that he is facing slander and libel litigation. You do have a legal system. If he is spreading slander and libels, he certainly is in my instance, and i will confess that my father contemplated filing a lawsuit, but i told him you know the old line never roll around in the mud with a pig because you will get covered in mug mud and the pig likes it. That was my advice to my dad. Just dont mess with this guy. We do have a legal system that provides a remedy for that. The one group magically immune from that are the Big Tech Companies. The question im getting at is that we find ourselves in a situation where experts and other lawmakers fear that social media has become this ecosystem for falsehoods. You have people like alex jones who use those channels to spread falsehoods. The companies go to take action and that are criticized for having done so. How do you address that . The action seems to be consistently patterned on one side. For example you to be monetized my old law professor, hardly a man of the right. For a video that he did on his real. They decided to demonetize him because they disagreed. Who the heck are they to be deciding the right way to resolve these issues . Its through the form of public debate. Thats the right way that respects the right of the people. Oldschool journalistic rules. There are checks if any newspaper or station gets too extreme, there are a bunch of other stations. What is dangerous is that in many respects they are monopolies. Twitter and facebook are where people get their political news and theres not really another viable alternative for a great many people. They have monopoly powers and they would never have imagined having you too. We dont know what the algorithm is but if they decide there are outcomes we want, political outcomes we want and we are going to use our status to favor all of the political outcomes, we want and disfavor the ones we dont, that power ought to be disturbing and it is to a lot of people. Do you hear that we find ourselves in a way in which the 2020 election could be a breeding ground for falsehoods . It sounds like you would prefer if they didnt really have some of these content moderation roles at all. I would prefer it if they let people speak. You are saying politics is a breeding ground for falsehoods. Social media is. Go back and read the political campaigns that we had of our first few fret president s. Politics has always been a tough is this. It aint beanbag line, it aint bangs. The answer is not to sanitize it and say dont say things that we dont like. By the way, the First Amendment was not designed for popular views. Popular views, whatever is popular doesnt need the First Amendment because you have Popular Support. The First Amendment was designed for unpopular views. And unpopular views are sometimes wrong and sometimes right but how do you want to answer that . Do you want billionaires making that system or the Public Square debates and ideas and merits making those and even the best way to respond to lies is address them and shine light on them. Dont try to silence anything you disagree with. But we never had a moment in time like now where somebody can post one tweet on twitter and they can occupy conversation for weeks to follow, right . And the question im trying to get at is with the power and the reach of social media, what rules should there be in place at all . It just feels to me like you dont feel there should be guard rails on these companies within the companies with respect to the rules of what should be allowed and what shouldnt be . Were talking about the companies and not congress. I understand congress. But the First Amendment means something and most of the world doesnt embrace the First Amendment. What we have in the United States is wonderful and special and unique. That the government doesnt engage in censorship. Even obnoxious antigovernment rules. You go to china and try to explain the oppression of the communist government and see what happens there. Much of the globe youre not allowed to express those views. We live in a world where one person can send a tweet and it can ricochet around the world. Wonderful. What a wonderful democratization of views. We have seen revolutions fuelled by that. Whats one of the first things that tyrannys try to do if they have the people engaging in unrest whether its iran or china or elsewhere, silence social media. Dont let them speak. We have 7 billion people on planet earth. Let all 7 billion speak. But we have seen it be used for genocide in myanmar and become weaponized by russian agents that want to spread misinformation. It feels like these companies dont have those guard rails in place and they arent the ones enforcing them that were asking for some of the bad things to happen. When youre dealing with out right fraud by nation states of government, you can certainly take steps to deal with that. Fraud y fraudulent acounts of people that dont exist. But many are real people that exist and theyre expressing views. They just dont happen to be the politically favored views by the sensors. What about americans that we know are americans that are silencing views we should not be silencing the views of americans that are expressing their thoughts. Lets talk about the regulatory side of things. You mentioned antitrust a little bit. The conversation in washington right now is that the Justice Department and the federal trade commission have split up oversight of some of the Big Tech Companies. What would you like to see the fdc and the doj do here in the space . Im glad the public reporting has been that doj is looking at google. Those companies are larger and have more market power than standard oil did. Theyre larger and have more market power than at t did when it was broken up under the antitrust laws and in particular. If one is using a monopoly to engaged in politically biased censorship, theres a good argument. Is it complicated . Yes. Is that a different manifestation than the sherman act was adopted to address . Unquestionable but it was adopted to address the abuse of monopoly power and that has different manifestations in different times and eras. So what standard oil is doing is different from what google is doing but both enjoyed massive monopoly power and were using it in ways that were contrary to law. By the way, theres a third potential avenue which is for remedy and its one that sounds in either fraud or breach of contract and framed really simply. Its the typical user on twitter or facebook, if you sign up you assume that if you follow somebody youre going to see what they tweet. Youre going to see what they post. If somebody follows you, theyre going to see what you tweet or you post. Thats the implied contract the users have. What is really pernitious is the practice of shadow banning. Thats where those social Media Companies simply shrink the number of people and do it silently so that nobody knows it happened. Now theres been whistleblowers from twitter that alleged this. The company to be clear has said it did not engage in this practice. It did and then in the same breath the witness said at the hearing does twitter restrict the number of viewers on some posts . Shrink the number of viewers . Answer, yes. Do you tell the people posting you shrunk the number of viewers getting their post . Answer, no. So that is shadow banning. So the top line headline we dont engage in it and then they admitted to the exact conduct at issue. And that, the throttling so i have met with multiple officials throughout the administration seeking at the first step just some basic transparency. Just provide the data of whats going on. How many people are being blocked . They have this data. These are not hard to find out. These are objective data. So how many tweets did twitter block last year . They know and nobody else in this room knows. And its a little bit concerning that not many in the media seem worried about that. It used to be that journalists like the idea of speaking truth to power. Well theres a whole lot of power right now and you dont get a lot of journalists who are speaking out i dont know of any journalists that i saw that spoke out in favor of alex jones. Now look, hes a cook but lets go to Steven Crowder who is less and you didnt see a lot of people speaking out for him and some of it is well, gosh, i dont agree with those guys so im okay with their being silenced. Thats a very dangerous slippery slope. I dont speak for journalists or profess to speak for journalists but the question was why folks like that can attack and spread falsehoods and seem to get away with it in the social media platforms which is the heart of the conversation. But insults and attacks. That threaten the families. Theres no allegation that Stephen Crowder threatened anybody. Thats not an allegation. Youtube explicitly concluded you did not violate our policies but were demonitizing you anyway. How is that . Think about that from your job if your boss calls you and says today im demonotizing you. That starts to reflect the kind of power that these companies have and by the way, these companies also have, for the traffic to the Washington Post and everybody else. Should google be broken up . I think theres a very good argument for it. How you do it is complicated. Im not proporting to have the answers on the remedy. I am saying this is a serious problem and we should understand just how widespread it is. So the first step, you know, look i would encourage folks that are interested. Take a look at the questions i asked facebook. Over 600 questions that were detailed about how many people have you blocked and what circumstances do you block. Which statements are deemed objectionable and they dont answer it which means there are no objective standards other than unchecked and unregulated power. You talk about section 230. How do you plan to proceed on section 230 . Look, the next step is were going to be shortly holding a hearing on google. I expect that to be the next step. And then well move forward. There are a number of legislators. I had conversations with a number of senators both republican and democrat that are concerned about this and looking at different levers to address political censorship so i expect to continue working creatively so address it. Talk a little bit about im sorry, theyre talking in my her ear. Abroad theres companies that look to regulate speech and the way the Companies Deal with the speech. After the Christ Church shooting in new zealand we saw a number of countries consider whether to impose fines or things on companies that dont take down troubling alarmists, violent falsehoods and things of that short fast enough. Should the u. S. Consider such a thing . No, we shouldnt have the government look, there are lots of countries that have a long tradition antithetical to the First Amendment. We shouldnt have the government silencing views. The right response to hate speech is responding with truth. Take another example, the klan, the klan and White Supremacists are idiots. I have to point out i remember some moron or something that was saying something and i said so pretty loudly and i remember there was one, i think it was a New York Times reporter that said both ma arrco rubio ai both criticized this person. It was some klan something or other and this New York Times reporter said oh they are positioning for the 2020 campaign . And i couldnt help but tweet back and i said, yeah, its got to be political positioning because you know, the klan has such love for cuban americans. You know, that, the response to bio b bigotry and hatred. The response to it is speaking the truth to it. But that stuff often tends to drown out the truth that youre talking about. Does it . It appears to be it its your view that the klan is drowning out the truth in america today. Now, the klans views are idiotic and i think the overwhelming super majority of americans recognize that. Thats an example of stupid bigoted views. But you think good speech will always win out . I think it is the best check and i trust it more than i trust authoritarian power brokers whether its the government censoring or a hand full of Silicon Valley billionaires. No system is perfect but the marketplace of ideals, the ability to contest ideas is much better Winston Churchill famously said democracy is the worst form of government known to man except for ever other. The same is true on free speech. Its not perfect. But its much better than empowering anybody to be a dictator over what is allowed to be spoken. On that note well have to wrap senator. Thanks so much to everybody for coming and for joining our third annual program. To watch the full play back and for highlights you can visit wapo. Com and follow the post live account on twitter. Thanks everybody for coming. Thanks again, senator. Talk soon. Appreciate it. He testifies before the Senate Finance committee including the recent agreement. Members are expected to continue on a 2020 spending bill. Thats followed by the senate. And votes on executive and judicial nominations. On cspan 3 two hearings on sclil. The first on reducing health care costs. Later on russian activities in ukraine. Congressional term limits. Join the