Transcripts For CSPAN Key Capitol Hill Hearings 20150527

Even if there is not an immediate lifting of the sanctions. On the pnd, i can tell you the , french are keen of having were not going to let the pnd issue under the carpet. The negotiations, for the moment, obviously they are not moving forward quickly. It means that the iranians make the calculation that it could be easier to get concessions from the ministers with some dramatization. A good deal of dramatization. It is also theater. There are some theatricals in negotiation. Really, dont listen to the outside declarations. The sanctions will be lifted in an incremental, reversible conditional way. Each side will have to be able to prepare its public for the opinion. Peter i think he was mindful of protocol. It contains provisions that provide for access to military science. I think where mindful of that protocol. Peter there is that, there are also proper inspections separate from protocol. There has to be a proper inspection regime so that we can if we have reason or legitimate request to visit this or that side we can still do so. This is still being discussed in some detail. We will not let this issue disappear. This will be an important part of the final negotiation. Barbara the next gentleman has been very patient. Speaking of the art of diplomacy, the sort of lock back on the allowance of managed inspections, is this dispel the notion that has been perpetuated for a while that the iranian negotiations are perpetually boxed in by anything Supreme Leader tweets or says is there clearly some give their. Gerard i dont know the momentum of the negotiation and iran. The negotiation the negotiators are negotiating. They have their own Public Opinion with their own divisions. The same way you have in the u. S. They have to take into account the settlement the same way the u. S. Administration has to take into account the opinion of the congress. No negotiation is simply a technical or political without Public Opinion, which is in a sense the background of the situation. Barbara gentleman here, and then thank you. I with curtis fans 24 hour news agency. I have a question about the impact of a nuclear deal on the situation of human rights in iran, particularly for the kurdish people. Do you expect the situation to improve or will be world turn a blind eye for strategic interest . Thank you. Barbara who wants to take a human rights question . Peter all of our governments remain concerned about the human rights situation in iran. There are things there that worry us. Sometimes it is about the way individuals are treated, sometimes the way minorities are treated. Sometimes surprising elements. I think there are a number of respects in which iran has a long way to go in terms of Meeting International standards on human rights. I am not an expert regarding the kurdish minority. We will look iran especially if we are able to include the agreement to move more in the direction of behavior then we have of the moment. Barbara iran could start by letting our colleague go. George mason university. Ambassador, i was reassured when you indicated that russia and china are being helpful. And the final stages of negotiations, how helpful is russia actually being especially in light of their decision to resume 300 air defense Ballistic Missiles to iran . One wouldve thought this was held out as a carrot they had gone out and done this. I also know there are rumblings in the Russian Press that in fact may be a nuclear deal would not be such a good deal for russia. Also even rumblings that if the west is not understanding on the ukraine, russia can be less helpful on iran. I am from the older generation that sees what happens in the Russian Press is not accidental. Would anyone care to comment on russias motives. Peter to be straightforward, we thought a decision to deliver those kinds of weapons were not helpful at all. It was a deplorable decision. Let me remind you this was not a decision that violated the arms embargo. It did not violate international law. Gerard it has always been important to show that is not the west against iran. And the russians and chinese are being perfect, loyal negotiators in this process. That is key. They are doing their part to work with us. Like peter said, they have taken they took they did not want to simply blame china on these negotiations. Barbara i think i saw something in the paper saying that these weapons will probably not go. It is more of a carrot. Gentleman back there. Peter, i am a lawyer in washington. The question is, is the position of the west credit . The position of the west seems to be, if you do not do this deal, we will continue sanctions or enhance the sanctions. I have heard today how this might be the high watermark of sanctions. Our own businesses dont like the sanctions. Do we have a credible threat to the negotiation . Barbara i think what the ambassadors have said is it depends on how the negotiations break down. If it is perceived to be the fault of the u. S. Congress, or others on the side of negotiating, and the sanctions regime will unravel probably pretty quickly. If it is perceived to be the iranians walking away from a good deal, presumably there would still be some sanctions at least in europe. Is that true for the russians and chinese . With the p5 plus one then split . Peter i agree with you. It depends on who is to blame. If there is no deal. I think we should not harbor any illusions about International Sanctions regime. I think many of the emerging countries would consider congress locking the steel as a trigger this deal as a trigger to this regime. I would see a certain danger, if the blame game in the International Community comes to the conclusion that it is not iran to blame then the International Solidarity that has been quite strong in recent years would most probably erode. Gerard in legal terms, no. In legal terms, it could be lifted. The sanctions remain in the vote of the u. S. The u. S. Sanctions will remain in place and the eu sanctions could be lifted in a unanimous vote. They will be raised in any case. The implantation, implementation . Peter gerard a lot of corporations are afraid of u. S. Sanctions. Barbara have they started drafting a new it u. N. Council . Peter i think there is a draft somewhere. Yes, i think there is a draft. Gerard one the questions is about sanctions. The way sanctions will be reimposed if the iranians are not standing up to their commitment. I would like to direct my question to the french ambassador. Have you been able to persuade the gcc that the nuclear deal in a negotiated will enhance security, rather than undermine security . Peter gerard i think it was the american administration, it was a very useful initiative because it is true that we have to be the assurances to the gulf countries. If they need security assurances, it is not only because of the nuclear deal, but it is because of the geopolitical situation i was referring to. That has given to iran, initiative. We thought in iraq, and we are seeing it also in yemen. The message which was summarized by the statement, that was a useful one. It is basically also what we told our friends from the gulf countries that we consider their security requirements serious. We want to play a role in it. We have a military basis since 2009. We have agreements since the 90s. We have a long commitment towards the countries. I think their concerns are going well beyond the nuclear issue. It is more of a geopolitical situation which is a source of concern, especially because they think that the money if the sanctions are totally lifted could be used by iran for purchasing adventures in their part of the world. Ips, given that there is concern over recruitment by the Islamic State in europe and given that iran is playing probably be leading role in fighting i asked, external role that is in iraq and indirectly in syria does iis figure, does it contribute at all to the urgency or eagerness on the part of the eu three with respect of wanting to establish a better relationship with iran to deal with this . Peter im not sure that i would agree that the iranians have been that effective. I think the iranians have gotten their own reasons for pushing back against isil. Remembering that a decade ago the iranians were potentially allies of hours against al qaeda. Partly because our diplomacy did not succeed in those days, we found ourselves seeing ieds killing american soldiers in afghanistan. The reality is that saudi extremist groups, al qaeda iso, whatever you want to call it, there are other fringe groups, they are antishia and iran, the iranians have their own reasons for fighting back against groups they believe are dedicated to the destruction of their religion. I think it would be wrong to see the commitment we are giving to these Nuclear Negotiations as part of our desire to see i still put out of business and stop committing the atrocities we see on a daily basis. As i said earlier, this negotiation is worth doing in its own right. It is specifically linked to the question of stopping iran with Nuclear Weapons and stopping weapons of mass destruction in the region. If we start linking other things, that cannot help. That could spell the end of the negotiation. We are doing this because it is the right thing to do. Equally, it would be a very useful spinoff if the result of achieving that kind of negotiation with iranians, other aspects of iranian behavior improve. If there are common enemies where we are making common cause , that is something to be looked at in the future. One is not linked to the other. Barbara the lady in the middle. My name is hannah morris, i wanted to asking about the snapback and how this mechanism would work . I can imagine six years down the line, some of these nations have been lifted, there is increased his notice for example and germany is benefiting. How does the snapback work if we have flight violations that not everyone agrees with is a violation. Will this mechanism be tied to certain behaviors that iran commits . I just want to understand what this mechanism would be like. Barbara material reach and how do you want to define it . Gerard the snapback for the moment, the idea was that we did not want to in a sense to give life to some members for bringing back sanctions. The french have invented a system which is the opposite. It means that the sanctions, the snapback is automatic but if there is really a vote in the opposite direction, which changes the veto from one side to the other. It has not yet been agreed. You cannot define material breach by definition. It will be the first to the commission created to discuss this issue. After that it will be back to the political level. There is something getting on my nerves, it is when americans say the europeans want to make money. Basically we actually not you made the sacrifice of the sanctions. We lost a lot of money because of the sanctions. Not the americans, because you are not any more on the high moral ground. On this issue we have done a tough job, we have done it in a loyal way. Again, European Business people are not more greedy than americans. If the iranians are not going to abide by their commitments, the europeans be strong and we work with other members to reimpose sanctions. We are trying to fix the mechanism that allows us to do it as quickly and effectively as possible. It is technical and different elements for an agreement. Barbara france is always against automatic. Gerard we want to try to avoid the chinese saying they are against it. We want a system which will be the opposite. In a sense, it will be reinstated automatically. If the p5 agree not to. Really it is in the mechanism that is not submitted to the veto of our colleagues. Barbara so it is a majority. Gerard of course p5 in germany. [laughter] there is no germany. Barbara p5, not p5 plus one. Gerard the u. S. May reimpose sanctions the same way the eu may do it. Peter i would say in the eu we can organize the snapback. In the u. N. Context, you guys have come forth more difficult. Barbara lets see, the lady right here in the middle. Voice of the moderate quickly and, when i was here before for a panel, Barbara Slaven was on and she said that 70 of the iranian people wanted a peace deal. Barbara 70 of iranians wanted a normal relationship the u. S. Now we have the nuclear deal, and the american mindset is more openminded. Maybe because of isis, i dont know. Im wondering with you and your countries, what do your average people, for the first time their mind is open that peace is possible, what about you and your country . Barbara i would think this diplomacy is popular. Peter i think all of our countries and government have their own different baggage. In that part of the world, sometimes with iran, turkey, countries were we have a history or we dont. I think if you take the case of iran Public Opinion in this country has been seared by the experience with the hostages. In the case of the united kingdom, Public Opinion was appalled when they broke into our embassies. Iranians have their own memories, some accurate, some not. We have all got baggage. I would say for the united kingdom, our Public Opinion is not at a stage of being deeply worried about the concept of a normalized relationship iran with iran. We go back a long way. The Iran Oil Industry was set up by british companies. We have had our own political and business links. The u. K. Was the dominant power in the persian gulf for a long time. We go back a long way with all the countries in that region. I think Public Opinion, if asked to support the kind of deal our country were to negotiate, they would not have a problem with the normalization with relations with iran. However, that said, i would say all of us will once to be seeing iran behaving in different ways in the years to come. I say be too are not linked, but it might be human rights, it may be supportive terrorist groups, we will be looking for progress in those areas. Barbara the gentleman right there. My question is in regards to the potential arms race in the middle east. Saudi arabia has famously said after the Framework Agreement that any i anything iran had, they wanted too. That seems to me like an opportunity, not a negative thing. If the deal shapes up, and gives us confidence that iran will never develop a clear weapon, why shouldnt we say, saudi arabia you are more than likely welcome to sign off on this. Why not use it as a model for arms control in the middle east . Gerard it is the most worrying aspect of the agreement. We have created a new status of a breakout state. We had be known weapons states and weapons states, and now we have something else. When you make a negotiation, you have other things to think of. One is, which precedents are you setting for other countries. Here, it was emphasized by kissinger in a hearing and the senate, the u. S. Senate. That is one of the concerns we have to address outside the agreement, that not only saudi arabia, simply rushing to become breakout states. It is the opposite for me it is one of the major week points of the agreements that we are negotiating. The agreement is not perfect. It is a compromise. Any agreement is a compromise. It is not a perfect agreement that france would have wanted. I think it is the same for germany and the u. K. , it is what is possible. I think what we reached is what was possible, it does not mean that it is not have consequences that we have to address. Barbara i think the question are also met the verification measures. Is not just a question of one year breakout, they would have to accept Additional Protocol and other transparency measures. It is not positive for the future of the proliferation system. That is true, lets not forget the visions the rights of countries. That is something that all the states have that are members. I might add that we are the only country in that configuration that is a nonnuclear country. So we know what obligations come with that, what rights. We might also have contributed to show the iranians we are not imposing, the Nuclear Countries are not imposing something on them that deprives them of rights others have. I think the question whether there will be a Nuclear Arms Race hinges very much upon the kind of verification regime, how it is designed and works in practice. If we can create credible viable inspections in the other occasions, that would take away a lot of grounds for engaging in arms race. If we get to that point hopefully, the other governments in the region will not be looking for exact parity. They have a Nuclear Program and break out a. Never decade or so, it should be whether they have con confidence that others in the region 11 talking about buying one off the shelf if the iranians and of having Nuclear Weapons, they should do that. The arrangements we have reached with iran, we are negotiating with iran, they take initiative where the program has gone to. Why would you do that . This is not about having it for the sake of having it. For anyone with an interest in regional stability, we have to make sure with the proper regime of verification, but the iranians also have an interest that they are serious about incrementing their side of the deal. That will disparage others from saying, my god, i dont have the confidence that this will work. I think everyone has a responsibility. It does not need to be about parity, it has to be about confidence. We dont want more Nuclear Weapons in the region. There are other countries on the oneyear breakout, japan countries that could but do not want to. They cannot be an entirely new category in that sense. I am more worried about how are we on time . Times up. Ok. [applause] thank you all for coming. Thank you plowshares for your generous support. July 6 that is our date for when we might have an agreement. Coming up on cspan, a couple of events from National Constitution center in philadelphia. We will begin with a look at the press freedoms in the u. S. Then a conversation on religious freedom. Then president ial candidate Bernie Sanders help advanced in burlington, vermont. We will have that later. On our next washington journal, we talked to Denis Kelleher who heads up a watchdog group. He will talk banking regulations seven years after the crashes. Then, former indiana senator Richard Lugar will talk about bipartisanship in congress and his work at the lugar center. Then, a conversation with a staff writer from the Marshall Project about efforts to make changes in police procedure. Washington journal is life each morning at seven easter n. We also take your phone calls facebook messages, and tweets. David on the right brothers, the hockey accident that changed his course of history. It was the history of who it was the hit wilbur in the teeth and not out all of his upper teeth when he was 18. And it sent him in to a spell of depression selfimposed seclusion. In his house for three years. He was not able to go to college, which he planned to do. He wanted to go to jail. Instead, he stayed at home. Reading and providing himself with a liberal Arts Education of a kind most people dream of having, all on his own. With the help of his father and the local library. But it the path of his life, its worth it in the way that no one would have anticipated. Sunday night on cspans q a. Now, a conversation on free speech and the u. S. Constitution. Topics include campaignfinance reform and a speech on College Campuses. We will hear from law professor randy smith who is the author of a book on the folly of Campaign Finance reform. And william marshall. From the National Constitution center in philadelphia jeffrey rose moderates. Jeferfery where the left and the right agree on free speech. Please welcome me in introducing our panelists. [applause] we have another dream team panel. Let me introduce them briefly. Senior Vice President and general counsel of industries. President and ceo, Bill Marshall is the kenan professor of law at the university of North Carolina. Bradley smith, this is a great title for academics between 20132015 at the West Virginia university law. We have bigger business cards. He is also on the board for center of competitive politi cs. This panel is cosponsored by the Federalist Society and American Constitution Society. Out of all the wonderful things ive had the opportunity to do since coming year, bringing these two great organizations together is among the most satisfying. They have joined together because of their love for constitutional bait and dialogue. But also because of the generous support of the templeton foundation, which has formed the coalition of freedom. And we are cohosting a series of debates like this, podcasts, and were going to create the best interactive constitution on the web. I have to plug it. Were going to reach out to the top scholars in the country both what they agree about and what they disagree about. In terms of contemporary issues. We will distribute this free to every school kid in america, the College Board is going to work with us and make sure everyone who takes the ap history and government exams has access. It is a living instantiation of what freedom day is about, vital and important for bringing both sides together to debate the meaning of the constitution. With that club, i want to jump back in. There was a really interesting fame on the left panel. I didnt know i would be first. Its ok. It was a wonderful area of agreement, anthony from the aclu and the folks from cato, they were talking about the important work that you and coke have done to support studies of over incarceration. I went you to tell us about that were, is there a connection between your concern with over incarceration and your concern about free speech . Absolutely. Thanks for inviting me. People were shocked, but thanks for inviting me anyway. There deathly is a connection. The center for American Progress talked about our work on criminal Justice Reform. And really, at the end of the day, we are involving criminal Justice Reform work and we have been for many years. First off, it is core to charles koch beliefs in a free and prosperous society. Going back to the last panel, which was excellent as well, removing obstacles for the disadvantage or poor. If you want to help the poor, as we do, everybody in this room and panel does, there is no way to reform our criminal Justice System. They are the most adversely affected by that system. That is one part of it. We had some negative experiences our self with the criminal Justice System. That in the mid90s, we learn from we wanted to see what ever we learned and how the process went to us. If it is happening to a big company with a lot of resources which happens to the average citizen in the average joe in the street, that got us working with the National Association of criminal defense lawyers. Personally, from me, im from worcester massachusetts, and i worked at a jail when i was in college. I worked in a jail, i was not in jail. [laughter] it was the best job i had until i went to law school. I saw many kids i worked with who made mistakes and that ended up in the cycle of criminal justice because they were dramatics, that left an impression on me. Lets get back to why were all here, the bill of rights, the constitution first 10 amendments. Police four of them deal with criminal justice issues. And they deal with between the Fourth Amendment in the sixth minute, if you dont have the First Amendment the other nine dont matter. It is all about free speech and our natural right our Founding Fathers may not have had perfect, but they knew the greatest encroachment to individual liberty would come from the criminal Justice System, and they were right. We will work with anyone anybody on these issues. Beautiful, you have drawn the connection between the first and Fourth Amendments. You cannot have the criminal Justice System without the First Amendment and the framers are centrally concerned about the connection between unreachable search and seizures, writs of assistance, and mike lee when he came, this was an incredible speech. He talked about the main case that inflamed the framers was the case of john wilkes who criticize the king anonymous pamphlets. He does not specify places to research, the king charges them with seditious libel truth is not a defense. Lord camden risa greatest opinion and colonial history. The private diaries are both the private rights, also freedom of thought and you only the table for what im going to ask you. Weve got a great debate here, one tremendous debate about the i want to set us up for a second. The First Amendment and the Fourth Amendment to what degree that might inform free speech on campus. We also defend due process. I had someone who should have known better, a professor at yale, saying why are these things even connected . Why do you do these unrelated things . It was a bizarre idea to me. I mean, if you get to the fundamental liberal idea what Jonathan Rauch talks about in liberal sides, its all about knowing that you have limitations, but i is, that you are not omniscient, and that we need structures that help us deal with these failings. Due process recognizes this, restricting people from censoring. Its a great sense of epistemic humility that actually makes all the difference. Im afraid that universities are failing to teach a generation those wonderful and important habits. Mr. Rosen he has just charged us with failing to take due process into account. You are not forced to go to faculty meetings, however. [laughter] mr. Marshall the hate speech debate is hot right now, and liberals on both sides of it. As we begin to see that in the last panel, some traditional civil libertarians think there are due process violations in banning unpopular Commencement Speakers. Others are more sympathetic to the dignitary rights of offended minorities and vulnerable speakers. Which side do you come down on . I come down more on the freedom of expression side, but i dont come down on easily. I think if you walk into the classroom as a student, and youre being subject to all kinds of ridicule the cause of who you are, its hard to participate in the Academic Climate the same way you would if you were part of the privileged class that comes in with all the power on your side. So i think a lot of these , efforts are really to equalize the learning environment and protect people from hostile environments, which is a very legitimate goal, one that should be followed because we need to think about that that the classroom doesnt affect everybody the same. The workplace doesnt affect everybody the same. And when we see a tax on peoples dignity that go on, to use that language from the former panel, it weakens educational structure and the work structure and thats why there are protections against it. Mr. Rosen this word dignity has come up, and there is a great clash between european and american notions of free speech on one hand and dignity on the other. And the debate is surfacing about what europeans call the right to be forgotten. It comes from the french right of oblivion. The french just want to be forgotten. Americans want to be remembered. The bottom line of this incredibly important line, if we are both in europe and one of you is tweeting that im doing a boring job moderating the panel, i can object that it violated my dignitary rights and google and yahoo would have to decide if im a public figure or not. If they guess wrong, they are liable for up to 2 of their annual income, so we are talking serious money. Describe this i think i want to ask you this. Who is right, the americans, or the europeans . [laughter] i wouldnt want to betray my country on National Television here. I think our differing approaches to privacy on some of these issues, i think one thing americans are sometimes forgetting of late is that hardfought right to privacy. I dont know who is better. I think there is a balance that needs to be struck and we may be going in a direction that further than we would like to go. The area i work most often is Campaign Finance. It is interesting, i believe in france. I dont want to be quoted on that, but here we say we need to know whos financing all these ads. There they say no, you cannot disclose who is financing always at, in order to protect the privacy of those engaged in political speech, to preserve social interactions as well. If we are going to demand to judge everybody on their politics, i think society becomes a very unpleasant place to live. Theres much to be said for keeping a greater wallop privacy around what people do and say at any one time. Im not quite sure that answers your question, but that would be my thinking. Whichever way is the best, we may be at a point now where we have gone overboard. You know everybodys got to know , everything about everyone, and im not sure thats healthy, either. Mr. Rosen you raise the question of anonymous speech and i want to focus on that later. First, maybe a response greg do you want to talk about American Free speech and imperialism . There is an ideal that all the censorship that takes place on campus, at least its done with good intentions. There are few times when human beings act with a single intention ever. I get the argument that campuses are trying to make places more welcoming and inclusive. We are not a litigation organization. We have dealt with case after case where administrators have told student that they cannot hand out copies of the constitution without getting two weeks advance notice from an administrative. We had an Animal Rights activist in california who was told not only did he have to restrict his protest to a tiny respeech zone, that he had to apply in advance and wear a little tiny freespeech badge in order to use it. So i understand the argument that there are good intentions but we just cant blindly trust in the good intentions of power. Mr. Marshall on my campus, we have one of our faculty members who has written a number of critical editorials against the governor of our state in there trying to take away his center and do whatever they can against him. Thats another example, i dont think we can say that one side or another has a monopoly on this. The problem about freedom of speech is we all believe in it strongly until it makes down and then its free speech for me and not for thee. We really need to be able to be applied across the board. I do not think that College Campuses are anything close to bastions of censorship where people are not free to say what they want to say. Certainly in the classes i have at the university of North Carolina and my clients have elsewhere, they are open forums and people say all kinds of things. The diversity of opinions are extraordinarily welcome. There may be a few of these instances, but i dont think they give any sense of the climate on American Educational campuses. Mr. Rosen is it your experience that College Campuses are hospitable to a diversity of opinion . Mr. Holden working at koch, im a bit cynical, i must admit, theres a group called unkoch my campus. And because the Charles Koch Institute and foundation theyre , working with educational institutions across the country, funding free Market Forces classical liberalism, and its led to a lot of targeting of targeting professors who are teaching courses on free market economics. They want their private emails and they want to know this and that. We talk about free speech, im pretty much a freespeech absolutist in a lot of ways. I think there are natural rights. The government cannot restrain them because they did not give them to us. We been hearing about inalienable rights since the declaration of independence groups are financed by Many Organizations that oppose koch politically, and thats their First Amendment right to do it. But its hypocritical when these groups say they are doing it because they want to point out other big business interests on campus. Theres a lot of groups on the left, a lot of wealthy people on the left that have businesses that are Funding University projects and programs. I dont want them to get attacked at all, but its wrong to attack either side and i dont think there is a lot of tolerance that ive seen the last few years. Mr. Smith i would be more skeptical than bill. I think there are things that students know they are not allowed to say on campus and they do not say. As a conservative libertarian in a law School Setting where in some cases, im almost the only faculty member who would hold those views, i become used to a certain ritual over the years. It usually occurs about midway through the first semester. There will be a group of students that will appear at my office, four or five students. Something like that. They will come in, and its not quite clear what they want. They talk about class a little bit and they kind of do this but they dont have any seeming objective. They finally someone will Say Something like, what did you think about x, y, or z . Or whatever. I will say i think its a load of hot wash. They will say, we thought there was someone on our site and they start pouring out the fact that certain opinions are not allowed to be offered, that they will be ridiculed or targeted by their professors. I think most people and most professors on campuses do welcome diversity of opinion. A few people can really spoil that atmosphere. In too many cases we have given a hecklers veto to people, in most of these cases where Commencement Speakers are run all caps and so forth. My guess is most students would be perfectly happy to hear them, and a relatively small group is allowed to exercise a hecklers speech. We need people who will stand up and say this is a university and you can be exposed to ideas that you dont agree with. Even one from the koch brothers. The American College of universities as 9000 campus professionals this question. Is it safe to hold unpopular points of view on campus . That is an incredibly soft question. Only 16. 7 of University Professors strongly agreed with the statement. Jonathan and fellow jonathan and philip came out with a paper talking about how social psychology is being hurt by the lack of diversity. They give an example of being at a conference of social psychologist, asking them to raise their hands about how many of them are conservative. There are about a thousand people in the room. Only three of them raised their hand. When he realized was that statistically speaking, there are certainly more than just three in this room, but the fact that they are afraid to raise their hand speaks volumes. Mr. Rosen the stats seem vaguely right in terms of the fact that conservatives seem to be a minority on faculties. Why is that . I think part of the answer is people who come into academics do so with a certain that the idealism that often leads to left of center kind of positions. Just because people might be left of center on particular issues doesnt mean they are intolerant and dont want to hear other ideas. I think that most of the teachers i work with or aware that the best way to have real conversations in the classroom are to have conversations of the type we are having here, in which somebody might be outnumbered 31, but thats ok. You want to stand up for your position, you stand up for your position, and thats a good thing. And you actually learn. I went to a very conservative law school at a very conservative time. I certainly got a lot of grief from certain faculty members on the positions i took. I think it made me stronger in my ability to articulate my views. Mr. Rosen the question of anonymous speech has been flagged, and we also have to talk about Campaign Finance issues, which cut in unexpected ways. Anonymous speech, brad smith ways that the framers were , concerned about, the main thing they wanted john wilkes be able to have was the ability to write and anonymous pamphlet. The number was 45. As mike lee said, that number 45 was so galvanizing to the framers that they help parties where people would eat 45 ham sandwiches and write 45 on the sides of their tavern. This was a totemic experience for them. Lets see mark, anonymous , campaign speech. Why is it important to give anonymously to campaigns. Mr. Holden its important because its consistent with the bill of rights and the constitution, which we were just talking about. My point of view is that people should be able to give money anonymously or on the record. It should be up to them decide and not the government. Im going to paraphrase the late Justice William brennan, which im sure he will be very letter by. Basically the bill of rights the framers did not lay out what our rights were. They made sure government could not infringe upon those rights because they were presumed to be preexisting. And my point of view is to the extent people want to expose we were talking before we got on here. If charles and david koch, for every penny that spent on a conservative or libertarian cause or is your candidate, there is no dark money as far as the kochs, in my opinion. There is a cost to disclosure. From a costbenefit analysis, i dont quite see who really pays attention to this other than activists on each side that want to harass and intimidate and create list. Ive seen both sides do it. I know they do it against us and there have been a number of death threats. Im not asking for sympathy or empathy. Im just saying it comes at a cost, and who really benefits from the disclosure . Therell be ads on tv that talk about more taxes and regulation. Probably not something any of our groups are sponsoring from koch. If its about Less Government or that type of thing, maybe it is. I dont see any need for all the disclosure laws other than for people to put together lists. And try to intimidate. I dont think it brings about a lot of full and fair discussion on the issues in our country anymore. Mr. Rosen might there be a difference for disclosure like individuals or advocacy organizations like the naacp which the Supreme Court said should be able to have anonymous membership list, and like for exxon . Could that be different for campaigns . Do you want corporations to disclose, but not individuals . Mr. Lukianoff i think that theres a lot of disclosure for campaigns thats compelling, if its a super pac or that kind of thing. The naacp versus alabama case. Theres another one involving the socialist party several years ago. Im not saying for exxon, they dont have to disclose thing. I dont know where the right line is, what the divide is. What im saying is, who is really benefiting from disclosure and while redoing it at this point in time . From my perspective, and admittedly im inside a bubble but i dont see driving a lot of productive behavior. In fact, it has led to death threats. Mr. Rosen brad, you raise the question of anonymous speech. Mr. Smith its an important point, is not a question of all disclosure or no disclosure. If you ask me, i tend to feel like the government should not force people to disclose facts about themselves without some really powerful reason to do so. Generally people have a right to , be private and others can evaluate that anonymity when they think about the speech. But im also willing to make compromises. Because in the real world, other people disagree. We need to find some kind of accommodation. Theres lots of different lines that can be drawn. For example they say dark money, nobody knows where it comes from. There are no political ads in the United States that are dark money. They are all required to say somebody paid for it. What they really mean is we dont know as much about who paid for it as we want. It just says it is paid for by the naacp or the u. S. Chamber of commerce, and we want to know in particular who that is. And there are names that dont stand out for anything americans for better things. [laughter] but you can usually find out enough about the group. One of the things that cracked me up, to give one example, i remember after 2010 when they first started talking about dark money. I cant tell you how many news stories i read crossroads gps, a shadowy Dark Money Group founded by ed gillespie and karl rove to elect conservative candidates to congress. If its a shadowy, Dark Money Group, they are not doing a very good job. [laughter] you just told us what is going on. If i can go on a bit more, there are different options. One proposal i am seeing more and more is not getting passed but people are pushing it. Somebody from the organization has to appear onscreen. It usually says whoever that has to be, the chairman of the organization. I am brad smith and i approve this message. Right . Is that a good thing . That is a different type of disclosure. That person may be homely. People do not like homely people in politics. That is the reality. They react better to goodlooking people. It may be a race. It may be someone who is arabic. Some people will not like that. There are a lot of things like that that we need to start being careful of and thinking about. And we have gotten into this argument, are you prodisclosure or antidisclosure . Rather than thinking about different types of disclosure. Even a person like me, who could be said to be antidisclosure, is willing to live with a lot of disclosure. There are reasons people want it that are not frivolous. But sometimes we are not doing cost balancing. We are not recognizing you can draw different lines. Mr. Rosen bill, you have been wonderfully restrained. Mr. Marshall when you see this being paid for by mothers for apple pie, it does not tell you much. We have to put this in a larger context. Im glad everyone is interested in the poor. They have little political influence because they do not give money. It is helpful to voters to know who it is they are supporting. One of the cues on that is who contributes to a particular campaign. The fact is it does not make that much difference. But large amounts of money can be put into races by groups who no one knows who they are, and at the last minute sway elections because the other side does not have enough money to be able to defend against the attack. Disclosure is a secondbest kind of regulation to give a cue to voters to have some idea why somebody is attacking a candidate or not. Mr. Rosen we have to put on the table the question of Citizens United. We are having a great debate about whether Citizens United was rightly or wrongly decided cohosted by the Federalist Society and the Constitutional Society in boston on may 12. We had a great debate on a similar topic in philadelphia. It is strange bedfellows. It was two of the great civil libertarians arguing in favor of the position that corporations have the same First Amendment rights as national persons. And two arguing against it. This is an area where libertarian conservatives are sometimes procorporate speech. Brad, you are an expert on Citizens United. You have heard some of the debate today about corporate speech and religion rights being extended. Did Citizens United go too far . Mr. Smith i do not think it went too far. Lets take it on its own terms. It is a narrow decision on a typical set of facts. The position of the u. S. Government was that it could ban a documentary about a Major Political candidate during an Election Year simply because like every movie you have seen rented from amazon or anyplace else, it had corporate involvement in its production and distribution. That idea strikes me as absurd. If you want to talk about the radicalism of the Supreme Court, they said, a government can ban a documentary about a political candidate. If you take it in a broader sense, i think it is right. Corporations the court does not believe corporations are people in the natural sense. But it is recognized that corporations have rights because the people that form them have rights. Thinking about the fourth, fifth, and sixth amendment, the government cannot seize corporate assets and leave shareholders with certificates of stock and say, it is a corporation. They have rights because shareholders have rights. It is the same thing with corporate speech. I also think corporate speech is often good for an election. Lets say you have a company out there in a small town in iowa or Something Like that. It wants to say to the people, if our government does not take stimulus money, this company is going under. You should know that. I think that is a good thing for the electorate to know. I think they ought to hear that from a corporation, not from the ceo of the company or some individual. I think on those particular facts and in the broader sense Citizens United is probably correct. Mr. Rosen the argument on the other side . You are not a traditional floyd abrams libertarian but draw distinctions between the state and federal government regulating elections. Tell us some of that. Mr. Marshall one of the interesting things in case law is that states have not been allowed to experiment. Montana had an interesting law in place that was there because of the fact that copper barons took over the government in the early 20th century late 19th , century. They had special laws to deal with corruption that took place. The Supreme Court struck that down under Citizens United without giving states the ability to experiment or see what might work. And what might not work. Part of the issue on corporate speech, and i think there are reasons why you might want to protect it, because speech is speech. We like to hear speech in the marketplace. You also have to remember it is subsidized speech. The only reason it exists is because the state has allowed a corporation to come together and get all kinds of protections that allows it to amass the kind of wealth it can use to influence the political process. The theory i just gave you, by the way, on corporate power, comes from Justice William rehnquist, who took that exact position on why he did not want to protect corporate speech. Mr. Rosen did Citizens United make a difference in the way you are able to give to campaigns . Mr. Holden it was independent expenditures, and we do little of that, so no. But i do not think the government should be saying who should be speaking or cannot in a political season. There is a lot of disclosure that goes with that. I think that from our perspective, the more voices that are out there, the better. This whole notion that people are going to be persuaded by an ad, i live in wichita. I grew up in worcester. They are normal places. Not places like new york or d. C. No offense to people from d. C. Or new york. [laughter] we have friends everywhere. [laughter] i think most people make decisions based on factors peculiar and personal to them. Whether they are swayed by ads i do not know. In kansas, we had the first competitive governorsenator race in the first 20 years i have lived there. I cannot watch ads by the end. I think people are not as swayed by it. The whole idea that someone is going to change their mind about an issue they feel strongly about because someone runs an ad or that type of thing, i think that is overplayed. Four Citizens United to me i am , where brad is on it. I think it is fine. I think both sides spend a lot of money on ads. I do not know how much impact it has. Mr. Rosen one last thought . Mr. Marshall i want to know why so Many Companies are giving money for ads if it is not working. Mr. Holden they are giving it so their voice can be heard. Marketplace of ideas. I said both sides do it. , whether they are effective or not, who knows . People run on the records. These candidates elected in 2014 that flipped the senate will be up in six years. People vote on issues particular to them. Both sides run a lot of ads. That is how it is, for whatever reason. Mr. Smith higher spending does inform the public. The public votes based on fairly basic information. Repetition is the hallmark of learning, right . The same thing over and over. If you repeat yourself, you will remember it tonight. That is how you get through. It helps voters locate candidates on the political spectrum. In a sense, i think that mark and bill are right, the ads will not change the minds of people who have strong perceptions. They may not change them generally, but they may inform a voter on where a candidate is on a particular issue. And that is a good thing. Mr. Rosen one last set of questions. Our job is to figure out what the left and right disagree and agree about. As in the Fourth Amendment area, we had a nearly unanimous opinion. But they involve rather jarring facts. Eight out of nine justices protected the right of people to film violent crush videos. A similarly lopsided majority struck down californias desire to regulate violent video games. A similar majority said that very hurtful protests at funerals, military funerals, saying terrible things about gays and lesbians, were ok. Is the entire panel celebratory obviously not of the results but of the principle in these cases that we have to protect the speech we hate . Does anyone think the Supreme Court has gone too far . And i would just start with you. Mr. Holden obviously, hate speech, no one is a fan of that. But when you frame it that way and look at how big the First Amendment is and what it has allowed for, flagburning, animal abuse, that kind of thing, while that is repugnant, repelling and no honest person would be in favor of that, it is protected by the First Amendment. Which kind of underscores not to bring up Citizens United why everyone gets so exercised over that. And in some ways theyre saying that flagburning is more appropriate than running ads. I think they got it right. I think the First Amendment is big and broad. As we Start Talking about all our rights being hinged on that, that is why it is number one. The First Amendment, everything else, including with reform issues and criminal justice issues, all flow from that. Mr. Rosen go look at the original bill of rights. The First Amendment was third. The original First Amendment said there had to be one representative in congress for every 50,000 inhabitants. If it passed, there would be 20,000 congresspeople today. Just as well that in the past. Thank goodness it did not pass. It is sort of a coincidence it is first, but it is undoubtedly most important from the natural rights philosophy. Greg, i presume you think that Justice Alito was wrong to dissent. Mr. Lukianoff i certainly do. One of my beloved interns was interning for Justice Alito at the time he wrote the opinion. We were like, how could you . But when it comes to offensive speech, i think we are thinking about it wrong. We are at a major point of divergence between what the law says and what cultural attitudes are becoming. The First Amendment, the ability to protect offensive speech, which i think is essential to speech as a whole, is alive and well in Supreme Court law. Culturally, our understanding of free speech has diminished a great deal. The idea of hearing people out the idea of giving benefit of the doubt, the idea of not forming twitter mobs against anyone who makes a misstatement. I wrote a book called freedom from speech that says we need to go beyond explaining i hear First Amendment lawyers make this argument the First Amendment is good because the First Amendment protects it. We cannot have a circular argument. The most important thing we miss, because we have got into normative judgments about whether speech is high or low value, but what we seem to be missing is that there is a real value to knowing what people think, not if, but especially if it is horrible. This is a very brave and Scientific Method of looking at the world. But it is being ignored. Making references to dignity. It is not about saying what fred phelps says is good, it is just about knowing what he actually thinks. Mr. Rosen bill, maybe stand up for Justice Alito, who argued for dignity and said the feelings of the families at the funerals should be respected . Mr. Marshall sorry, cannot go there. I do think that one of the things that brings the left and right together is the celebration of the First Amendment. And the idea that when we get offended, we shut down the speech. But in the abstract, we all think this is a freedom. Even though it is the third, as you point out. And i do think that allows reprehensible speech as well as the kind that we like. Mr. Rosen would you like to make it unanimous on this question . Mr. Smith in those opinions they do not interest me that much. They are at the extreme. As mark and greg hinted, the typical argument is that we need to protect that, protect pornography, hateful speech, in order to preserve the core of the First Amendment. What strikes me as odd is the core is what the court seems to be giving the least protection. That is talking about politics. That seems to be downright backwards. You get more protection at a demonstration at the funeral of a serviceman. As opposed to a running an ad that says my opponent is a jerk. I will say it is a point of agreement in that what seems to come out is there a strong agreement on a robust First Amendment. Most of these decisions were lopsided majorities. There are some issues like Campaign Finance or hate speech that are divisive. But i do get some comfort that americans are still pretty good on the question of freedom of speech. Mr. Rosen there is a fine bit of agreement. It is time for closing statements. In the spirit of our panel, i will ask each of you to identify the aspect of freedom of speech you think is most important in the country. What will you do to promote it over the next year . We will go in reverse order. Brad. Mr. Smith i think that the core issue is the issue of political speech, which has been under attack for a long time. Both sides do it. Whoever seems to be losing or winning attacks the other side and tries to shut off speech. Tries to keep them from speaking. In the 1950s, you had teachers being asked to report what books they read. Things like that. Now it seems like the challenge comes from the left to attack political speech, force people to disclose themselves and be subject to ridicule. I think that is a major problem. I think we have to get over the idea the First Amendment is a bizarre, libertarian barrier. I think it is what the founders thought, a way to ensure that government was clean, corruption was exposed, elections were fair and open. At the center for competitive politics, we fight on that through litigation and try to educate people about the way money works in politics. Get people thinking about what the alternative really would be if we gave government a blank check. Mr. Marshall i have to agree it is political speech. But i think it is a more complex issue. One of the questions about freedom of speech is, is it a value in and of itself . Is it there to promote democratic decisionmaking . Depending on your view, you may come out to different kinds of results on campaignfinance. When you ask about a candidate the first thing you ask is how much money they can raise. In a system in which someone has to sit in a room for 20 hours a day, dialing for dollars to be competitive, or a system in which poor people do not have access, that is troublesome. It is troublesome for government to do any regulation. I have to agree with that. You have a deep conflict going on. But it is not an easy result on either side. The first thing i tell my First Amendment students is, if you think this is an easy decision on either side, rethink it. One of the things the American Constitution Society is doing, and what this organization is doing, is to sit down and really listen to each other and talk to each other and figure out what it is we are trying to accomplish so we become a little more sensible on some of these issues. Mr. Lukianoff you asked for American Freespeech imperialism earlier, and it was not time for that yet. But for closing statement, i will say this. It is something i take seriously. We feel very proud and confident on this panel that free speech and the First Amendment will be well protected. But to a degree, i think we are kidding ourselves. Free speech is in trouble in the rest of the world. We just had an article by gary trudeau that some people said amounts to blasphemy laws. There is no argument you can have for a blasphemy law regime and still have freedom of speech. The rest of the world has National Security laws we would find terrifying to a degree. I do get a little to a degree, the First Amendment will not mean much. The right to be forgotten is disastrous, potentially. Unless we are making strong moral, philosophical, and practical arguments about free speech, understanding free speech is an International Human right, it will not survive long in the u. S. So i am arguing that we are nowhere near this but i am arguing for a global First Amendment. It should be protected anywhere in the world to believe what you want. Mr. Rosen thank you for that. Mr. Holden i agree with that. Not a global First Amendment but the sentiment, for sure. Here is where i am on it. Picking up on what bill said we , heard the last panel talking about criminal Justice Reform. How that brought different groups together you would not think would be in the same room. And it has. Koch would like to find more of those issues. We would like to think we have good ideas to add to the discussion. We would like to use our First Amendment rights as an individual and a corporation to have a dialogue with other groups about issues of common interest. There are a lot of them out there. Criminal Justice Reform is one. If you look at the issue, it is the tail end of the problem. Were talking about economic opportunity. We need to talk about the education system. We know our friends on the other side have ideas. We like to have a discussion instead of everybody going to their corners, throwing names, running ads, and fundraising off each other. That is how we would like to use our First Amendment rights. Until its 2016 and everyone goes back to their corners. Thank you. Mr. Rosen an exhilarating discussion. We have disagreed about aspects of the application of First Amendment principles to situations from campaignfinance to the regulation of political speech but agreed about hate speech and centrality of the american tradition. And both mark and bill talked salutingly about something we have seen throughout the state that there is a real value to bringing people who disagree fundamentally together. As those of us on the stage and in the audience are, listening respectfully to each other, so we can identify areas of agreement and disagreement. Your job, ladies and gentlemen is to go have a drink, which you have earned, but to answer the question i just raised to the panelists. Think about what each of you will do over the next year to celebrate freedom, participate in debates about it, and encourage other americans to do the same. This is about self education. Educate yourself. You have to learn about the ordinance on all sides of these debates so you can make informed decisions. That requires reading up on the history of the constitution, the cases that gave rise to it. Learning about the arguments on both sides, not assuming that either is right in advance. Ultimately, realizing this one document is the thing that binds us. We disagree about some much in this room, but all of us agree about the centrality and power and beauty of the greatest document, the u. S. Constitution. Thank you for an incredible day, for making this remarkable conversation possible. Give them a round of applause. Hooray for freedom. [applause] [captions Copyright National cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] more now from the National Constitution center. Coming up, the constitution on religious freedom. When youre from two attorneys on opposite sides of the cases for the u. S. Supreme court. From philadelphia, this is 50 minutes. Good afternoon. The First Amendment to the United States constitution states that Congress Shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. These words do not signal the end, but rather the beginning of the spirited debate about the proper relationship between religion and the american state. In the early years of the United States, some interpreted the First Amendment to mean that congress could not establish an official religion. But cities and states could. By contrast, Thomas Jefferson described the First Amendment is erecting a wall of separation between church and state. In everson versus the Supreme Court, urged that this wall must be high and impregnable. In lemon against kurtzman, the court recognized that some recognition is inevitable. Adding that the line of separation, far from being a wall, is a blurred, indistinct and variable barrier depending on all circumstances of a particular elation chip. The first president , george washington, articulated an additional approach in his letter to the synagogue which has often been cited as a basis for the concept of religious pluralism. A definition that is more inclusive and perhaps more appropriate in todays United States than the general term tolerance. Washington said, it is now no more that toleration is spoken of, as if it were the indulgence of one class of people enjoyed the exercise of their inherent natural rights happily, the United States requires only they live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support. Our speakers have dedicated their careers to considering issues of the appropriate interaction between religious liberty and u. S. Laws. Greg lipper is council on key cases in the u. S. Supreme court. Michael courson writes about the intersection of religiousbelief and politics. Greg is with the americans united for separation of church and state. Before that, he worked at a law firm. Christina ariaga is with the beckett fund. She has been the council in hobby lobby against burwell and other cases. She tells me she has quite an eclectic collection of pets at home. We learned that in the green room. Michael gersten is a columnist with the Washington Post and worked with the one foundation to defeat disease and poverty globally. There are two categories of cases we going to talk about today. The first are the more traditional types of cases with the religion field. The accommodation cases. They often involve minority religion in the place of accommodation of minority religion in a majority society. There is another category in the news, which is what i would call religious accommodation point 2. 0. Those include cases like hobby lobby against burwell. I know since that is in the news, it is on everybodys mind. Since we have counsel on both sides the case with us here today, we will as then to start off by telling us about what has happened in the area since hobby lobby against burwell. Ill start off with christina. Kristina you may wonder why my hair is messy. Greg and i already got at it in the green room. [laughter] i have been asked to talk about areas of agreement. Im working hard on that. I am sure you hear my accent. I have not been drinking. I am cubanamerican, so i feel very passionate about these issues. I am the executive director at the beckett fund of religious liberty. One area of disagreement we have is the hobby lobby case. As you may have heard, americans united mischaracterized it as crazy evangelicals denying health care to women. That was not actually the case. Im kidding. You never said crazy. [laughter] the Greene Family of hobby lobby are an evangelical family from oklahoma city. They started their business from a garage. They started making frames. As devout christians, when they opened their stores in 46 states, employing 26,000 employees, they close on sundays. Their trucks only take merchandise into the stores, they dont allow the trucks to have alcohol. They dont have any lewd cards. They offer generous benefits. They pay for everything the Affordable Care act requires but when the mandate was enacted, they had no objection to 16 out of the 20 drugs that the government mandated. The only objected to four. They were drugs that the government conceded may prevent implantation. The science was never argued in the case. For the family, that was a form of early abortion. They cannot cover those four drugs. They covered everything else. Great health benefits. They also paid more than twice the minimum wage to each of their employees. They found themselves painted into a corner by the government. The government forced the owners of hobby lobby to provide these drugs and exempted millions of americans from having to comply with this mandate that they considered so vital. The case became politicized. You may have heard about it. When the government went before the Supreme Court, the Supreme Court decided their case was very weak. There are arguments were not Strong Enough and we won the case. And that case, the government said that closely held corporations have the right to religious liberty. There was hysteria that rights within, women would die, none of that happens. It was all very politicized again. Since then come any Court Decision has benefited individuals in prison or who individuals who want to exercise their right to religious liberty. Does that answer your question . Meryl greg probably has a slightly different version. Greg the facts and the legal principles. She mentioned it is having this discussion. Meryl were not going to ask you to resolve that here. Greg lets go back to the hobby lobby case. Hobby lobby is often portrayed as a case of brought under the First Amendment. It was brought under a statute the religious freedom restoration act. That was enacted in 1990 three and one of the great political coup by ya moments. One of the great kumbaya moments. People came together and cosponsored it. President clinton talked about the proverbial divine intervention ringing all of the to bring all of these people together. The premise of the freedom of restoration act is there are some cases in which accommodations should be made in peoples religious beliefs. There are some cases where greater exemption should be provided. For instance, muslims must have beards. Oer the extent that requirements of autopsies and that violate someones beliefs. What has happened in cases like hobby lobby and places like indiana and arkansas the , religious restoration act has been a weaponize as a tool for some people to impose the religious beliefs on others and deprive third parties of the rights. I think that was something that has not been allowed to happen before. There are many situations in which accommodations are appropriate. It has never been until the hobby lobby case. What happened in hobby lobby and these other contraception cases is forprofit commercial employers are permitted to withhold what is otherwise required health care compensation. Some of the employers refused to cover any contraception. Some refuse to cover much of it. In the case of hobby lobby, i take her word that no one has died as a result of it, but tens of thousands of hobby lobby employees are deprived of certain forms of contraception including the i hud iud which is one of the most expensive forms of birth control. There have been cases previously in which people had raised religious objections to Social Security taxes or paying the women the same as men or paying minimum wage. Those claims have always been rejected. Individual companies have never been able to use the religious beliefs of their owners to harm third parties, including employees. That consensus has been broken down in a deeply fractured hobby lobby decision. It will have profound consequences for the way we understand religious liberties. And the balance between the rights of religious worship on one hand and a system of secular laws that protects everyone on the other. Meryl i want to get back to the notion of weaponize. Theres an argument that can be made on both sides about weaponization. I was asked you christina, the case that said a 1997 case, burner against florez, it has been 1718 years since the decision of that case. We are only now starting to see the focus on state level refroze or many refroze. There is a disturbing correlation between that and the passage in indiana of gay marriage. Does that chicks suggest that the focus on that has something to do with factors other than those being articulated . Kristina what was the last question . Meryl being articulated. Kristina several states started to adopt state versions of it. Many states felt they did not need to have protection in their state. The was a sister legislation. We are so nerdy. Were talking with all of these acronyms. For a cuban to say that quickly, and without tripping it is quite the feet. To your point of who benefits really on these freedom religious restoration ask, one of our client is a native american in texas. In 2006, the department of interiors sent covert agents , department of interior had covert agents that when into his family powwow because could they had heard he had eagles im sorry, eagle feathers. There is an act that prohibits native americans that are not in federally recognized tribes to have these feathers. They sent covert agents and confiscated the feathers which were essential to his practice of native american pastor. It is thanks to the federal religious restoration act, the government had to return these feathers. It is true the original one was meant to protect minority religions. Most of our clients are minority religions. What it never said or never alluded to was anything having to do with what were going to discuss later, sexual orientation, or gender identity. I think the states move as moved as quickly as they could given the position. Meryl mike i want to bring you , into the conversation. How to you see controversies over florist, cake bakers . How does this play out. What kinds of accommodation should be made for people who have lives that may not be ones that are as easily accommodated by evangelicals, or people from certain religious beliefs . Mike it is a little strange. Im a noncombatant in this legal battle. [laughter] given where im sitting, and likely to be a casualty. [laughter] the history seems to be relevant here. This was a twopart test about compelling governmental goals that was cause championed by Justice Brennan and the aclu for many years. It was in effect for decades. It was really Justice Scalia who was the bad guy in this scenario who wrote this decision that overturned this and caused congress to react and reinstate his test. It was Chuck Schumer that took leadership of this. It passed the senate 973. It really was a point of agreement. It is a shame, a terrible shame when issues this important get sucked into the vortex of the culture war. What we are talking about is not just one issue among many, where talking about one of the great achievements of the american tradition. The protection of a religious pluralism which is good for the country. It has motivated people to good do good. Religion has when it comes to hospitals, homeless shelters, charities, a variety of religious groups. It has motivated the search for justice over the years. Prison reform movement. Other things. Religion is not religious freedom is not a problem to be solved or some controversy to be engaged in. When you hear George Washingtons statement from earlier that is a thrilling moment in the history of the world. A power like america came to the defense of a genuine pluralism in which people could pursue their own visions of the good with respect for one another. I hate to see when rifra laws are used in ways that are suspect. It actually brings discredit to that cause. I would also say that the rifra standard which we have had for decades has never come up against this public accommodation loss. This hasnt been a problem for decades. All that standard does is say that there should be a balancing test. Not guaranteeing any outcome but accommodating deeply held religious beliefs. I think you could question peoples motives in bringing up rifra laws in the states. But this balancing test has been well tested with a pretty good method to accommodate the normal rules of the majority and a handful of exceptions of people who feel that their beliefs are being burdened. It is the courts that make this decision. They have been generally wise in its application. Meryl lets talk about the Little Sisters of the poor, and the notre dame case. They see more traditional in the sense that these are religiously owned and affiliated organizations that are refusing to provide particular categories of benefits. Mike do you see a distinction between that and people like the green and honda family . Mike i think a lot of people engaged in this issue, there is some divide come even on the even on the part of advocates of religious liberties. Between those who put a great emphasis on the autonomy and identity of religious institutions, and those who would extend it for profit institutions. I think that divides some of the coalition on these issues. It is indiana law as i , understand it made sure that it applied to forprofit corporations. I think people may be more mixed on that. I guess i would defer to the experts. Meryl and i am going to asked. Greg . Greg cases like Little Sisters of the poor and notre dame and others is the second wave of challenges to contraception regulations. I think they present to important distinctions. The first is the one you mentioned, merrill grid these at least look closer to actual religious institutions than does a National Retail craft chain. On the one hand. On the other hand, these entities have received a significant accommodation and refused to take yes for an answer. Because for two years now, the administration has said fine come you dont have to include contraception in your health plan. All you have to do is fill out a form saying i object and finish send it to your insurance provider and they will provide the contraception coverage to your employees at no cost to you and to them. That was still not good enough. All of these entities were challenging it. Signing this paperwork made me evil. Administration granted even a further accommodation. You dont have to fill out the form. Fill out a form to the government saying i object. Send it to the government. Again, these entities have refused to take yes for an answer. The Supreme Court ultimately said is there is a less restrict it alternative because the government has created this accommodation for these nonprofits. These nonprofits, many of which christinas organizations represent are arguing that even filling out the form so that somebody else will provide coverage to their employees is objectionable. Basically we will not rest until our employees are unable to get contraception from anyone. I think another example of this sort of extreme weaponization of religious liberty, but i think it contributes to things that michael talked about. When religious liberty gets associated with denying women the vital health care, control over their bodies, refusing to sign paperwork, that is deeply troubling to the cause of religious liberty. You saw the same thing in indiana and arkansas. When religious liberty is associated with discrimination denying People Service and public accommodation, that is deeply troubling. Religious freedom restoration acts have become toxic. They have become toxic because they have been abused in these ways. When the governor is saying no this is not about termination it is about his fallback is it is about that is deeply troubling and has eroded what had been a great consensus and religious liberty and i think it will do longterm damage to the broader cause. Therell girl christina, do your clients not take yes for an answer . Kristina those sisters are so unreasonable they devote their , lives to serving the poor. They take in thousands of poor people. They hold their hands while they are ill. They help them die. They are committed to life at the beginning, middle, and at the end. They just said hell no we wont , go. No, they did not say that word hell. The government has exempted millions of americans from having to comply with this mandate for commercial reasons. First secular reasons. They were the governments friends, they refuse to exempt this order of nuns and then they created this paper game. Sign here. Sign there. It is a money game. It doesnt take a lawyer or a mathematician to understand someone has to pay for it. When the sisters signed a piece of paper, it triggers a contract. Someone has to pay for it. They consider that to be an illicit thing. They consider that a sin. The government is not in the business of telling people what they can or cannot believe. I have three teenagers. Who has teenagers . I think it is reasonable to advocate for churches that consider human sacrifice of teenagers. Right . You would agree with me. The government has the right to come in and say in the interest of the state not to allow human sacrifice. For those reasons, the government can intervene. The answer is not government intervention. It doesnt take a lawyer to understand that a gay musician or a gay photographer should not be forced by the government or anyone else to photograph events at the Westborough Baptist church. This last week, but the aclu americans united said no one said that they should be able to participate. No one should be forced to participate, no one in america has ever supported those claims. Levy advocated for the legalization of marijuana. My children are watching. I have never inhaled. [laughter] why should she be forced, if she were an artist to participate . People disagree on religion and sex all the time in america. The answer is not to bring and in government regulation and , the answer is not to exaggerate claims. There has been intent on both sides that has not been good. That does not mean you wipe an entire body of laws that calls for a day in court simply because someones view was considered to be repulsive. Meryl what about the notion that the government is going to take over providing the contraception if the family does not provide it. How is that different than the case of the Conscientious Objector . If they dont get the service, someone else have to. Certainly a Conscientious Objector is fine. Kristina it is very different. When that Little Sisters of the poor say we cannot pay for it, that is different from someone taking it. They just cannot pay for it. The government is providing millions of dollars in funding through title 10 to planned parenthood clinics that provide these drugs to women that want them simply by showing up for free at no cost to the woman. This is all taxpayer money. The government has figured out a way to put a . 50 stamp on a piece of paper and carry it from florida maybe it is . 51 to get a letter from california to florida. Why can they not figure out a way to get contraceptives to women that does not involve them involve nuns . They put a man on the moon am of the there forcing the Little Sisters of the poor to violate their conscience and pay for drugs that the object to . That is unprecedented. I think shes losing the site of balance. It isnt for us to question the reasonableness of anyones willingness or unwillingness to sign a form. We balance interest. There are other people at stake. There are employees who will go without coverage if the nuns will not fill out the form. To say, well the government could pay for it. The government could pay for anything, but we would not say for instance that i have a religious objection to paying women the same as men. We would never say be government has money so they could make up the difference. No, we would say youre going to enforce equal pay laws. We would not say, i have a religious objection to paying them on wage area minimum wage. I think meryls question about the Conscientious Objector is right. Notre dames lawyer was asked the argument does that mean it would be a substantial burden on religious exercise for the conscientious object or simply to say i object . Yes, even that would have to be considered a substantial burden. That is all well and good for people to believe that is fine. When someone else is losing an important benefit as a result, that is where i think there has to be balance. The idea that im entitled to every impossible idiosyncrasy in my belief is fine, but as a result of that, other people lose their benefit, that is when it crosses the line. Meryl we are going to leave it there. Clearly not something we will be able to resolve. Lets find areas where both sides may agree more. That may get us back to some more traditional areas of the protection of minority religions and a majority society. The most recent examples is the hobbs case. I think that is an area where you more or less both agree. Yes. Christinas organization represented a muslim prisoner who wanted to wear a half inch a beard in prison. The case was brought under that religious persons act. We disagreed on how to pronounce acronym. She says rlupa. Even then. That was a case in which brought the coalition together. A modest religious accommodation that is important to someones religious belief granting a accommodation doesnt harm anyone. That is a case where we do agree that religious accommodation laws are serving their intent purpose. It would have been different if i have a religious right to not associate with women prison guards, i think that would cross over into imposing religious beliefs on someone else. We might disagree. The quintessential accommodation doesnt hurt anyone. No reason not to grant it. Yes, i think there is plenty of room for agreement on this case. Kristina one of the reasons the Supreme Court ruled that this prisoner had the right to grow the beard, it was because the state of arkansas had no real reason. There were no security reasons. The state of arkansas had said you cannot grow the beard the just because we said so. I was the weakness of the argument. In the case of many other religious freedom cases we were seeing the one because often times the government says you have to do it just because we said so. Like Little Sisters of the poor. Like hobby lobby. Like many cases where the government had no real reason to not make an accommodation and not make an exemption. But yes in the end, we agree , this was an important case. Did barry lynn, did he start americans united . No. Kristina you look good, very red barry lynn. 14 pastors in the state of North Carolina from the same denomination supported by americans united are suing the state of North Carolina. In the state of North Carolina samesex marriage is not legal. What the pastors wanted is their day in court. That is what the freedom of religious act it does. They give a day in court when there is a disagreement. Meryl lets try to get off of rifra. I am going to turn it over to mike. Are these cases becoming more difficult . As we can as we become increasingly pluralistic, is that becoming is that creating anxiety . Are we getting to the situation where religious accommodation cases may be difficult for the courts to deal with