Transcripts For CSPAN2 Bill Of Rights Book Festival 20150125

Terrific. I had so many question is didnt get to answer. Id like to ask you one question, which is, these are the kids of the elite, but youre watching booktv on cspan2, with top nonfiction books and authors every weekend. Booktv. Television for serious readers. Heres a look at some books being published this week. Former director of the cias counterterrorism senator center breaks down Clandestine Operations in kandahar. And n ghetto side looking at the american legal system. George freedman points to regions in europe where he believes geopolitical tensions are mounting. In the tragedyics bartholomew spare row traces the life of brent scowcroft. Special Army Special Operations remembers his combat experiences in the reaper, and in one nation under god a look at the history of americas religious plurality. Watch for the authors in the near future on booktv. Next on booktv front the bill of rights day book festival hosted by the National Constitutional center in philadelphia, a discussion between lee livine, and stephen wermiel, a discussion of the book the proking any ity william j. Brennans fight to preserve the legacy of New York Times versus sullivan. This is about an hour. [applause] ladies and gentlemen, welcome to the National Constitution center. I am jeffrey rosen. Im the president of this wonderful institution. And since ive started here at the National Constitution center in june 2013, i cannot imagine a more exciting day than bill of rights day which we celebrate today. Before i start and explain why this is so hugely significant for the Constitution Center for philadelphia and for the u. S. A. , i want to begin by reciting the mandate from congress that the National Constitution center is privileged to have and many of you i see familiar faces in the audience. Many of you know were live on cspan all day today so i just want to share this Beautiful Mission we have with our cspan viewers and that is this. The National Constitution center is a private nonprofit but it was created by congress on the bicentennial of the constitution to disseminate information bet the u. S. Constitution on a nonpartisan basis. That means we are the only place in america in these times that invites people from all sides of the spectrum, from the left, right, and everywhere in between to debate not political questions but constitutional questions and let citizens make up their own minds. As part of this Inspiring Mission i cant manage a more exciting and momentous event than the one were celebrating today on bill of rights day and that is the opening of a new exhibit at the Constitution Center which displays one of the twelve original copies of the bill of rights. Basically George Washington on october 2, 1789, sent out to the states 13 copies of the bill of rights and one copy to the federal government. 12 of those copies survived and one of them is being installed in a beautiful new gallery today at the Constitution Center. It will be open for the next three years. It includes rare original copies of the declaration of independence and the constitution and tells the story of how the rights that were promised in the declaration of independence were implicit in the constitution and finally codified in the bill of rights. And this is one of the copies that has been at the New York Public Library for 100 years, and thank tons historic and beautiful agreement, the commonwealth of pennsylvania and the New York Public Library are sharing it for the next 100 years so we have it for three years until 2017. The three years cone sign with the 225th anniversary of the bill of rights and it goes back to new york for three years and back to us and we will trade it like a prescious constitutional football for the next 100 years so that citizens from around the country and around the world can view this bill of rights and they can also see this incredible new interactive we have installed where people can click on any provision of the bill of rights, seive it historical ant seed depth antecedents and watch the spread of liberty across the globe. Check it out at Constitution Center. Org. Its a remarkable and visual experience how the u. S. Bill of rights influenced liberty around the globe. Ladies and gentlemen im now just so excited to be inaugurating the first of four book talks in the National Constitution centers first ever bill of rights themed book fair. Were so excited this is broadcast live all day on cspan and invite our audience to write down questions on note cards and invite viewers from around the country to tweet us your questions. Were Constitution Center constitution ctr and use the hash tag ncc bill of rights and after we talk ill take your questions. What is so great about these four books, they relate to each in fascinating ways and im so glad were starting with the question of spree speech at the heart of the debates over the bill of rights and then broaden out to ideas about natural rights versus traditions expressed in thought of thomas payne anded minute burke. Then talk about how the declaration of independence should or should not influence contemporary constitutional interpretation and have a great debate between two scholars of a different perspective, and culminate in a wonderful knew biography of john marshal the chief justice who solidified the constitutional achievements of the framers and made the Supreme Court a coequal branch of government. So as robert bork said when he was animal nate, youre in for an intellectual feast and also a feast of constitutional education and debate and civic enlight ment. With that introduction im so existed to introduce two friends have within this book the progeny Justice William brennans fight to preserve the legacy of New York Times versus sullivan. Lee is the leading First Amendment libel lawyer in the u. S. Anyone would turn first to him if we have a knotty question on press freedom or def defamation. He is a partner in the firm levine sullivan, cook and schultz. Accepted media clients in libel, invasion of privacy, copyright and related First Amendment cases for more than 25 years, recognized by the best lawyers in america and teaches at georgetown university. Steve verge yell vermiel past chair of the aba section of individual rights and responsibility rights for log and has written the great and definitive biography of Justice Brennan, liberal champion which is also superb. So silence your cell phones, write down your questions on note cards cspan audience, start tweeting your questions to constitution ctr crossthe hash tag ncc bill of rights and well get right to it. Lee, just hoped just opened this beautiful enough exhibit. The first thing to stress is the First Amendment, which you talk about in your book, wars not the original First Amendment there are two other amendments that appear at the top of the original bill of rights. One says congress cant raise its own salary without intervening election. That became the 27th amendment in the 1990s. And the only Second Amendment said there has to be one representative for every 50,000 inhabitants. If that passed there would be 4,000 people in Congress Today as oppose told the 435 there are. Why is the First Amendment which we think is the moe important, was not to the framers, apparently, the most important. There are number of explanations for that possible. One is that there was, as you know, an original debate over whether or not we even needed a bill of rightness the constitution there was a sense that the original constitution itself set out explicitly what government could do and couldnt do not what i couldnt but itself it wasnt set out what i couldnt do it couldnt do. I so one thing congress couldnt do was pass laws that would abridge the freedom of speech or press or interfere with the right of assembly and we didnt need a bill of rights to make that clear. There weres madison and jefferson, who thought that needed to be clear. We need to list those things that the government could not take part in interfering with. Those fundmental rights of being a citizen in a democracy. And first among those rights were the freedoms of speech and of the press and freedom of religion and the other freedoms set out in the First Amendment. Thats a great and clarifying answer, and as you suggest, madison thought that free speech was important. The amendment he considered the most important in his original list, which didnt pass would have prohibited the states as well as the federal government from abridging freedom of speech and the right of religious conscious. I took the civil war and the 14th amendment to achieve madisons vision and a reply the bill of rights to the states. There was a crucial debate between madison and john adams at the time of the framing about the governments power to punish seditious libel. Criticism of government officials, either false or true criticism. Tell us about the provision which john adams passed to punish not the critics of his administration but it whats not exactly a neutral act. Tell us about what the act did and what james mad din sons objections were. The supporters believe they had won the fight, that in our new democracy the notion of seditious libel was something that was very common in england. You could be punished for criticism of government officials. In england particularly the king. Punished criminally or civilly for bringing ridicule or disrepute on the king. The proponents of the First Amendment thought they repudiated that idea and put it to rest, but in 1798 led by John Adams Congress passed the sedition act which basically did just that. It made it a crime to disrepute, to criticize the president in particular and what followed were a number of prosecutions a number of people jailed and fined for violation of the sedition act. This was a deep partisan divide. They were critics of john adams. They went to jail. They paid the fines. As soon as Thomas Jefferson became president he pardoned them and even subsequently had the government repay the fines, and we havent heard much about the sedition act since then, until the New York Times against sullivan which well get to shortly. Great so, lee take us the years between 1798 and New York Times and sullivan, involve something important cases about sedition around the time of world war i, when Congress Passed the espionage act of 1917, which i being invoked today perhaps to prosecute journalist said that criticizing the war should be illegal because it might lead to the bad tendency of leading people resist the war. Homes hole. And bran brandeis dissented, although holmes changed his mind. Tell us about the debates over free speech around the time of the sedition act and how obvious was it to holmes and brandeis and others that the prosecution of sedition, of criticizing the government, did violate the First Amendment. Its interesting, as you mentioned before jeff the bill of rights did not apply against the states at all for a long time after the bill of rights were enacted, not until after the civil war when the 14th 14th amendment was passed. So we have this long period where theres precious little law about what the First Amendment means and doesnt mean because the federal government by and large, after the sedition act, didnt try to do much to infringe what we would now commonly refer to as the freedom of the press or freedom of speech. It wasnt until world war i when in the context of the war the government started under the guise of the espionage act to prosecute people who looked at in hindsight were doing little more than criticizing the government. A majority of the court in those days upheld those prosecutions. Justice brandeis and Justice Holmes wrote very eloquent dissent, suggesting that violated the First Amendment. I wasnt until much later and ultimately in sullivan itself that the court backed brandeis and holmes position. There were cases along the way to be sure, that kind of put us along the path built wasnt until sullivan that both comported with what jefferson and madison were saying back in the sedition act days, and with what hole and brandeis were saying at the time of world war i. Im going to ask steve about sullivan but i want to understand and our viewerrers to understand what seditious is and libel is. Libel is a false statement damaging to someones reputation but at the at the time of the sedition act couldnt the sedition be true and i gather according to british law, the greater the truth the worse the offense . So tell us about the distinction between likele and is false, and sedition, which can be truthle. The original context we inherited from england was that only the speech only had to be dispaging of government, of the king of his ministers and the people running the government. Didnt matter itself if it was true in fact truth somehow made it worse. It increased the harm to reputation and disrepute of the government official. Common law libel, the kind of libel that whats centerpiece of New York Times and sullivan was slightly different. That was libel that law of libel was the kind of lawsuit that you or i could bring against somebody who said something that injured our reputation and in the early days and in the common law of england we inherited, truth would typically not always but typically recognized as a defense to libel. So if you pled as a defendant wait a minute, said that but it was true and you can prove it was true, you won. That bill a contentious issue later on as we struggled to try to figure out of the burden of proving the truth of the libel from discouraging people who were unsure whether they could prove the truth of what they said about someone in court from saying anything in the first place. Which would tend to inhibit free speech according to that view. Great. So were going to be talking today mostly about libel which is false but embarrassing statements. Theres a separate theory of law involving truthful but embarrassing statements. That i gather is covered by the right to privacy and the question of intentional infliction of Emotional Distress or if you put someone in a false light and theres a huge debate today, maybe well get to at the end, about whether europe can ban and require google and facebook to take down truthful but embarrassing statements that people posted about each other. Goes under the rubric of the right to be forgotten. Thats down the raul, steve, New York Times versus sullivan. The times runs an ad signed by celebrities including Jackie Robinson and eleanor roosevelt. Tell us what the ad says and the objectionmr. Sullivan. The ad twas a full page ad in the New York Times and it was aimed at trying to rally support for the Civil Rights Movement and particularly dr. Martin luther king the ad said that Law Enforcement officials in montgomery alabama, interestingly it didnt name any officials, just said Law Enforcement officials had harassed dr. King had padlocked the dining hall at the local college, had expelled students talked about student protests singing my country tis of thee and ran through six paragraphs of describing Civil Rights Era activities in the montgomery alabama, area. Lb sullivan was the sheriff of montgomery, alabama, and basically said that the ad damaged his reputation and libeled him. The falsehoods were relatively minor, the dining room wasnt padlocked but some students were not allowed to eat in the dining room. The police didnt ring the campus with a police line, there was just a Strong Police presence at the campus. The students didnt sing my country tis of thee, they sang the star spangled banner. Things like that who in a commonsense way you could say couldnt damage his reputation but there are things in the ad that were clearly wrong. The problem there sullivan sued the New York Times for libel for damaging his reputation. Even though the ad didnt mention him by name. It presented a number of difficulties, for one, the New York Times in those days did not have a policy of verifying every fact in every advertisement. They verified that the people placing the ad were who they said they were, and that was as far as their responsibility went. So when it came to a trial and the New York Times only real defense was to say the ad is true they really werent in a position to do that. First of all there were falsehoods and second of all, they werent real requesty their falsehoods. It wasnt the New York Times saying it. It was the people who placed the ad saying it. So under the libel law in alabama at the time this was a very kind of complex, challenging situation. Great. Well, not great, but thank you for describing it. So lee the New York Times faces really serious damages if theyre held libel. Remind me how much they would have had to pay Something Like 23 million in todays dollars and several million by the standards of the day. But describe what the common law of libel in alabama was and then describe what william brennans alternative was and what he held the New York Times in his holding. Its important to recognize that it wasnt only commissioner sullivan who sued. There were five other lawsuits as well brought by the governor of alabama, by the mayor of montgomery, by other city commissioneres, all suing about the same ad and all claiming, even though none of them were mentioned, that it was about them and they all sued for 500,000 each, which is in todays currency, about 23 million. And if all of them had won which they surely would have the New York Times would have literally gone out of business so it was significant and not an accident. It was a coordinated strategy to bring the lawsuits and attempt the chill the New York Times and other National Media from shining a spotlight on what was going on in the Civil Rights Movement in the south. The only reason they sued the ministers who placed the ad as well was to prevent this is a technical jar goney thing of law but to prevent the times from moving the case from the Alabama State courts where as a practical matter the fix was in to federal court where there was a reasonable chance that the times would have gotten a better shot. But theres one other important thing to recognize. This, which is that this was this lawsuit was not some sort of bizarre cookedup crazy theory under the laws at that time. At that time what commissioner sullivan was alleging was a pretty standard defamation case. If anyone out there read that ad to refer to commissioner sullivan and injure his reputation, he had a claim, and it shifted the burden of proving falsity. Commissioner sullivan didnt have to prove he suffered any damages. Damages were presumed. He didnt have to prove that the New York Times was in any way at fault. Fault was presumed. So that by simply showing that it about him, and that the words tended to despair his reputation if the jury saw fit he could recovery 500,000. That was the law people didnt think about the strategy of bringing cases like this for the purpose of inhibiting their freedom of speech. So, steve you have written a definitive biography of Justice Brennan and this is just a magnificent book because brennan was so centrally involved both in sullivan and all of its progeny, as you call it, the cases related to it. The first expanded and then in some ways contracted on the promise. Brennan, as you said in the book was not a personal fan of the press. He had bad experienced and yet he wrote what alexander mikeol john said was an occasion for dancing in the streets for friends of friends of the First Amendment. The motor important First Amendment argument of the 20th 20th century. What was going on in brennans mind . How did he decide do resurrect madisons vision of the First Amendment and overturn the sedition act and how did he come up with the standard he did . Brennan was in a sense almost schizophrenic about the press. I mean this in a good way. In his personal encounters with reporters, he didnt particularly like the experience. He thought reporters invaded peoples privacy didnt really show enough respect for the individuals they were writing about, but there was no greater believer than brennan in the importance of a free press in a democratic society. Didnt have to like everything they did but he understood that you couldnt really be an effective democracy without a press as a check on government, a press that felt free to really be able to write freely about what was going on in the country. And so that is the sort of dichotomy that was present here in New York Times against sullivan he understood, and his colleagues did, too that one of the important things going on in this case was that the officials in montgomery were basically trying to drive the Northern Press out of the south. They didnt want stories on the front page of the New York Times every day about the way civil rights protesters were being treated and about how desegregation was playing out in the early 6s so if they could make it so costly for the New York Times and other northern media to do business in the south, that they might pull out. At the time of the case, the New York Times had already withdrawn their correspondent from alabama in hopes of being able to avoid being served with the lawsuit. The other thing i might just note in to ad to lees earlier explanation, i think its fascinating to remember the New York Times in those days had a circulation of 600,000. 30 copies were sold in the entire state of alabama. 01 of their circulation or Something Like that. Dont told me to the math. But so brennan understood right away both the civil rights importance of this case, but also the opportunity to put forth this notion that the michaeljohn notion the madison and jefferson notion, that free press was essential to the functioning of a democracy. To do that he came up with a new constitutional standard, one that had been used in a couple of state Court Decisions prior to 1964. The jargony term which he later came to regret is the frame, actual malice. A public figure public official could not sue for libel unless that public official could prove actual malice actual malice meant that the statements were published with reckless disregard or knowledge of their falsity. So, not just negligence. I could be a sloppy reporter but not be intent on defaming somebody. I could just make a mistake. That is not reckless disregard. Brennan intentionally set a High Standard, made it difficult this is how it sort of ties into the notion of seditious libel that we want to be able to freely report on government, on Public Officials, and only when reckless disregard take place, or knowing falsities can a public official then sue and recover for damages. Okay, so, as you say bren nap came to regret the term actual malice because juries thought it meant the reporter didnt like the official and thats not what i meant. It meant that, a. You had to know it was false or, b. Published it with reckless disregard whether or not it was true or false. Lee, if god forbid i had a libel problem as a journalist i would turn to you. I want to ask you about some contemporary applications of this standard. Right now everyone is talking about the the Rolling Stone case about the uva rape case, and colleague have asked me could the people who are written at that uva sue on the grounds that this was wreck his disregard for the right to since it was false . And i actually wrote back to them email lee levine. So im now asking you could someone sue Rolling Stone . The question is, could they sue successfully, i guess. Yes. And in some ways that is not knowing anything about the underlying facts other than what i read in the newspapers it may well depend on who they are and that gets to another major issue that the Supreme Court, with Justice Brennan leading the way tried to deal with after sullivan. Sullivan dealt only with Public Officials and the rule in sullivan was that a public official suing for libel or defamation had to prove actual malice this knowledge of falsity or reckless disregard of the truth inch the years that followed the court grappled if we the issue who else, if anybody else, had to prove actual malice. Brennan led the charge, expanding so it anybody who is a public figure not just people who hold Public Office but people who are public figures the public had an interest in because of their conduct they took had to prove actual malice, for a time blend unanimous corralled enough justices to have a rule that publication that addressed a matter of public concern, anybody who sued about that publication whether they were a public figure or public official or not had to prove actual malice as well. That victory of brennans proved to be shortlived and in 1974 brennan found himself in the minority when a different majority of the court held, no, private individuals, people who are neither Public Officials nor public figures do not have to prove actual malice. They only have to prove negligence in order to recover. Simply being not careful enough or unreasonable in how you went about your reporting. So getting back to the uva case, if the plaintiff in the uva case was a public figure, lets sale the fraternity itself sued, a reasonable argument that National Fraternity is a public figure. They would have to patrol that Rolling Stone published the article with either actual knowledge of the falsity or reckless disregard of the truth. A very High Standard that somebody suing Rolling Stone might not be able to meet. On the other hand, a person suing as a private figure, one of the people who was mentioned in the story, or one of the alleged perpetrators is a reasonable argument theyre not public figures and would only have to prove negligence, which is easier to meet. And on the question assuming stone stone tone merely called the victim and didnt confirm her story could that qualify as public figure. It could. That would be for a jury to decide. One thing that is pretty clear although not universally is that when youre a private figure and the standard is only negligence, which it is in virginia, where presumably a lawsuit would be brought courts do not make threshold determinations about whether this was negligent or not. It goes a jury and its up to the people sitting in the jury box to assess the evidence and determine whether or not what Rolling Stone did or didnt do under the circumstances rose to the level of negligence. On the other hand, if it was a public figure suing the issue of actual malice, the standard that Justice Brennan crafted in sullivan, that universally been viewed by the Supreme Court and other courts as an issue of law. A standard that in the first instance a judge has to apply. So one of the very important considerations and protections that the press has when the plaintiff is a public figure or public official, is that somewhere before a trial a judge makes a determination of, there is enough evidence here by which a jury could find actual malice . And more often than not the judge concludes no there isnt, and throws the case out. So the press never has to go through the burden of enforcement of an actual definition trial. Thats less frequently the case when the plaintiff is not a public figure or public official , lee, the shows us how einvolved between public and private figures and set up different standards for them. Want it you to further help us understand the evolution of the court. I gather from the very beginning there was more First Amendment friendly position held by justices black, douglas and goldberg that would would douglas and goldberg have forbidden liable for private figures. I dont think they would have gone that far. Black and douglas as is well known, took the position that when in the First Amendment says Congress Shall make no law, it literally meant no law so that any law that permitted libel suits against the media for printing things about Public Officials, would violate the First Amendment automatically. Wouldnt be an actual malice standard. Y uwouldnt be any lawsuit, period. They didnt really go so far, i think, as to say they wouldnt ever allow any libel suits against private figures, but their presence on the court in these cases made it really challenging. The core of the court in the 1960s was this liberal core that included brennan and chief Justice Earl Warren and black douglas, goldberg. That would have been a kind of natural majority in these cases but brennan couldnt ease live get the votes of black and douglas and goldberg as they expanded sullivan to apply to public to other kinds of Public Officials and then to public figures. So the interesting part of this book i think, is that every one of these cases is from sullivan for the next 30 years, just really hardfought. A constant tug of war. Shrill van looks like it creating this clear, broad, forceful principle about the First Amendment, and it does, but every iteration of it after sullivan is just a battle and a struggle inside the court. It is indeed, and the drama comes in your resurrection of the debate between the justices from their private papers. Lee, tell us about the criticisms of sullivan and we had a phenomenal podcast on the 50th anniversary itself between jeff stone and richard epstein, and heres a plug, ladies and gentlemen for our incredible we the people constitutional proud cast. Every week we call up the top to debate the constitutional issue of the week. The pod casts on itunes and on the web sites are getting up to 300,000 downloads a week. I want our cspan viewers to check it out. Its a thrill to have such civil debate about such controversial issues but richard epstein, lee said New York Times versus sullivan was wrongly decided. We should have given Public Officials more able get to civil recovery for calculated falsehoods and embraced the possessionofjustices clark and harlan and fordis. Tell us what the more conservative justices would have preferred. There were several layers of criticism. One is you hear it from Justice Scalia who sits on the court currently, who always trots out New York Times versus sullivan as his primary example of a case that the Supreme Court got wrong him views the issue of constitutional ajudd addition is look back at what the framers intend and he opinioned to the sedition act and say how can you say the First Amendment prohibits seditious libel when the ink was barely dry on the bill of rights when they passed the sedition act. Brennan said there was a disagreement at that time and the author of the bill of rights, saw it differently and brennan says in sullivan the verdict of hoyt is that the sedition act was unconstitutional when it was passed and most people, most informed people recognize that. So, thats one level of criticism. The other level of criticism is that as a practical matter even as applied to Public Officials having this kind of, as Justice Brennan put it in sullivan uninhibitedded robust and wide open debate has consequences makes people less interested in running for Public Office, destroys reputations and careers when things even when things are false, and it creates too much of a breathing space for truth. The other objection, of course is as sullivan expanded outward and applied not only to Public Officials but public figures and as the court in 1974 said the common law of libel which is a claim that didnt require false suddenly required at least the showing of negligence even by private people, thought you are giving the press and others a license to destroy reputation, even when it was false and there was actual injury. So that became the more contemporary argument against sullivan. Lee, steve lee said the court expanded sullivan from Public Officials to public figures and then to any newsworthy matter but that raised some hard line questions about who counts as a public figure and theres the famous gorse case where Justice Brennan advocated for a standard embraced by the lower court i remember from law school he said youre a public figure if you thrust yourself into the vortex of public debate. And Justice Powell said, thats fair because Public Officials have more access to the media. Someone says something false about them they can respond. Is that true in the age of the internet . Now everyone is a 15minute celebrity and everyone can thrust themselves into the internet vortex and also respond to falsehood. How has the enter northwest changed the definition of a public figure. Im not sure the courts caught up to the changes the internet has made but the ability to both ways, the ability of something that you say about somebody to go viral, instantly, and i turn to jeff and Say Something nasty about lee, and jeff tweets it out, and its in moments thousands of people are reading it when i thought we were having a private conversation. But the flip side is, lees ability to then send his own tweet out or use other means of communication to try to disspell whatever it was is there as well. So i think the original kind of notion that the court relied on of public figures and Public Officials having a better ability to be able to try to tell their side of the story, really isnt as true as it was. I just have to add that as to the 1974 case that you talk about, elmer gorse had ever bit the ability to go to media ask tell hi side of the story. He was vary prominent Civil Liberties lawyer in chicago but the Court Considered him to be a private figure. Geretz, the chicago lawyer like the ferguson case, hired to represent the chicago teenager killed by the Chicago Police officer, John Birch Society accused him of being a communist and the court holds he is a private figure. Technology has its virtues and its challenges. Lee, im just curious because youre the leading guy on this. How has the enter chet changed internet changed thing inside do you represent privity figures who contend they been dough famed i represent people who are being sued by private individuals for things said on the internet. Its interesting because if you talk to what for lack of a better. Youvism ill call Silicon Valley companies at the forefront of Digital Communications this googles and twitters of the world they will tell you, New York Times versus sullivan and everything that came after it is very nice and were very happy to have it but what is much more important to us is a law that Congress Passed not too long ago called the Communications Decency act which has a section called section 230, which provides that Internet Service providers and web site hosts cant be sued for liable at all if they are simply transmitting what somebody else said. That is a huge expansion of the degree of protection and i think its fair to say that google and twitter and all of those things wouldnt exist today or at least not in the same form if they could be sued for false and defamatory statements disseminated by other people over their facilities. Web sites like the cbs web site they could be sued for what they put out on the internet that other people content that other people created. And if you talk to folks in Silicon Valley theyll tell you flat for them, section 230 is the new New York Times versus sullivan because it is provided a degree of freedom much broader on the internet than the newspaper or television station would enjoy for disseminating the same thing under sullivan. And that leads us back to europe, which does not have a version of section 230. Lee, what is how easy is it to sue for libel on the internet in europe without that immunity and without the protections of sullivan . Well, theres nobody that knows more about privacy and its intersection with the First Amendment is you sir. Thats not true. But ill try to do my best. Europe has always valued privacy in competition with freedom of expression more than we have. Its a cultural thing. Its an imbedded kind of thing and the dna of folks who live in europe and as a result theyre law reflects a much more forceful protection of privacy and the most recent manifestation of it, which is increasingly troublesome to u. S. Companies, is this socalled right 0 to be forgotten. The idea is if something is published about you even if its true and you decide years later that i dont want that up there, dont want when people do a search for my name to find out that when i was in high school i attended a party and got really drunk and actually got hauled off by the police. So in europe, you can now go to your local minister of Data Protection and say i would like google to take that down and the european courts have said, in all of the countries part of the eu, you have a right to have that taken down. It is a right to be forgotten. Literally. And the big question now, which is about to be litigated, is whether or not europe can force going toll take it down north just on google spain or google denmark but on google u. S. , the main google web site so you cant see it, so that you want to research the history of somebody who is running for Public Office, you wont be able to find out what their indiscretions of youth or even their indiscretions of 20 years ago. You described it beautifully. The right to be forgotten comes from a french right, the right of oblivion, which is completely french. [laughter] the french all want to be forgotten and americans want to be remembered. But as lee says, think this is the big e clash between american notions of free speech and european notions of privacy in the 21st century. If i object sayer tweeting 0 or a cspan folks is tweeting this is a boring interview hi and object, this violate mid dignity, then google has to decide whether or not im a public figure or whether or not the information is relevant to a matter of literary, scientific or journalistic interest, and if hiss right and a privacy commissioner in dublin says my dignity has been affronted then google is libel for up to two percent of its null annual income which last year was 50 bill. This concentrates the mind irhear some gasps in our Good American First Amendment us aens. Steve, what would Justice William brennan have made of this right to be forgotten . I think he respected the right to privacy, and helped advance it in many other contexts but i think he was a big believer in more information than in the market place of ideas. If he were going to be offended by the expansion of libel law beyond Public Officials he had many opportunities to sort of voice that, and the vast expansion to public figures, to sports figures to movie stars to writers, never seemed to bother him. So i think he would kind of stay where he was would stay on the same side. Im sure youre right, and what of the folks on the other side . You hear from people like justices white and also clark and harlan and other justices more of a concern about dignity and more of a fear that the calculated lie had no social value and therefore should be prohibited. Might they be more sympathetic . Yes but in one sense they were at fleece brennans mind they were talking past each oomph right from the start even in New York Times against sullivan, inside the court from reviewing the papers of the justices, there was discussion about the deliberate liar or the calculated lie and brennans position all along was, were not authorizing that. Were not protecting the calculated lie. Were not encouraging that in any way. Were trying to draw a line between legitimate mistake and freedom of reporting and freedom of discourse, and the deliberate or calculated lie. But you had justices like white and others who firmly believed that should be a matter of concern and that brennan was in some way undermining our ability to go after the calculated liar, and brennan believing he was never doing that. Excellent. I have more questions but we have in phenomenal questions from the great cspan viewers and from our National Constitution center audience. You can continue to tweet your question to constitution ctr using the hash tag ncc bill of rights and here is our first question from twitter. Have adversarial journalism ayla green walled and risen, historically been as threatened as it is today . Lee . That a very good question. The answer i think is probably not. I think it is more under attack today than it has been in the past. Not because of definition law. I think sullivan has done a very good job of protecting the jim risens and Glen Greenwalds of the world for being sued for libel. What has changed, however, is that they are more at risk for being hauled off to jail for attempting to protect the confidentiality of their sources or for reporting what the government deems to be classified information and, therefore, puts them in line for violating Something Like the espionage act that prohibits publishing classified information that might do harm to national security. And we have gone through a period in the last few years where the government has first, for the First Time Ever gone on record in an affidavit filed in a federal court in the district of columbia, saying that journalist could be prosecuted under the espionage act for publishing classified information it received from a source but at the same time we have since had the attorney general of the United States state publicly that will never happen so long as he is attorney general. As you know he mitted his resignation and wont be around so long so we dont know how good thats going to be or how long. Steve, the espionage act, the heir to the sedition act of 1798, now being invoked by the executive branch and a question whether journalists can be prosecuted, what would Justice Brennan say. In the pentagon papers in 1971 he was pretty firm that there was an extraordinary burden on the government to demonstrate a genuine threat to national security, am imminent general win threat before somebody could be prosecutes for publishing truthful information. The pentagon papers were a truthful account obtained by the New York Times and other media. The court was divided in a sense that some justices left the door slightly open that there might be types when the government could meet that standard whereas i think other justices made it seem as though the government would almost never be able to meet that standard. If you read brennan really carefully, he was one of those who left the door ajar but it was such a tiny crack im not sure even a dust mite could come through the crack. Thats helpful. Now we distinguish between false statements of fact which is common law of libel we have been talking about, and now truthful but embarrassing statements which are covered by the pentagon papers case and which Justice Brandeis this the brandenberg case said could only be suppressed if they were intended to and likely to cause imminent lawless action. Thats the crowning jewel of the American Free speech tradition. Its picked up on the standard that he introduced in his couldnt currency in the whitney case in the 1920s but you really need evidence that the speech not only is expressive advocacy but its likely to lead to imminent violence and that is something that america embraces and europe most emphatically does not. Here is another question. Lee could president obama sue a publication for denying his birth in the United States . He could. He could and technically under libel law, if that was feud as a defamatory statement, injured his reputation, he could win if he could show actual malice the person saying it knew it was false or had reckless disregard for the truth. So far at least no president s have brought libel suits so probably isnt good politics. Im not sure the law stands in the with a of him doing that. What would count, someone just reading on the internet or wikipedia and assumes its true . Does that cover to you for actual knowledge . Thats an interesting question. And it comes up among other things in the Rolling Stone issue. In one of the cases we discussed in the book, Justice Stephens wrote an opinion for the court that seemed to expand the meaning of actual malice. It used to mean that you had to know that something was false or you needed to know it was probably false wreck his disregard of the truth was interpreted to mean a high degree of awareness of probable falsity. In this case in 1989 Justice Stevens said it could be by deliberate avoidance of the truth. Like an another stretch who stuck his handed in the sand and didnt want to to the if it was drew just said it that, could be enough evidence by which a jury could fine wreck his disregard of the truth. That concept has not been unpacked in the law but there is the notion if you willfully blinded yourself to truth and didnt do anything to try to figure out whether it was true or false that might be enough. My own view is, as that issue gets litigated more and more, it will be demonstrated to not be enough because of the emphasis in Justice Brennans opinions on actually having a subjective high degree of awareness of at least probable falsity. Just apropos of what we we were talking about at the outset if we were a country that recognized seditious liable, the birthers might be guilty of seditious libel. Good thing that sullivan is on the books and the best way you can cover yourself against a claim of wreck his lost disregard is got your facts phenomenon the nonpartisan web site of the National Constitution center, National Constitution center. Org. Steve, was there any distinction made by the fact the New York Times versus sullivan was an issue over an advertisement rather than an issue of reporting as in the Rolling Stone example . Well in 1964 commercial speech was not entitled to any real First Amendment protection. The court didnt really view this as commercial speech. It viewed it as political speech because of the content of the ad. There was some discussion of it among the justices but was not really treated as a case. If it were today and not viewed as political it was viewed as commercial, it would be subjected to a different First Amendment standard and entitled to somewhat less protection. That was the dunn and bradstreet case from 1983 you say the landmark that wasnt. What did it hold. Draws a number of distinctions about private speech and particularly private commercial speech basically being all bets are off. You can if its entirely private and commercial theres not much First Amendment protection at all for the publication. Great. Im going to take a last question just because its brings us back to our celebration of our display of one over the 12 original copies of the bill of rights. The question is, why were the original first two amendments to the bill of rights dropped or perhaps put another way i why were the originally included since they dont seem to effect individual rights . As lee said at the beginning, for most of the framers, the most of the amendment inside the bill of rights were either unnecessary or dangerous. Unnecessary because everyone agreed that human beings have certain natural and unalienable rights by virtue of their being human and therefore you didnt have to write it down. And then dangerous because if you wrote it down, people would assume if if wasnt written down it wasnt protected. There were certain provisions regarding the apportionment in congress which were important to the Congress People who propose it it but less galvanizing to the ratifying conventions and thats why the original First Amendment wasnt ratified until the 1990s. We are going to take a 15 minute break and then return to our wonderful ntc bill of rights book fair. Before we do that, ladies and gentlemen, for starting off this phenomenal day with such intelligence and vigor and illumination, please join me in thanking lee levine and steve vermeil. [applause] booktv is on twitter. Follow us to get publishi