Today legal analysts discussed this date of free speech rights under the Trump Administration. The Cato Institute posted this 90 minute discussion. I would also like to look beyond the audience. I like to welcome our viewers at cspan and other people watching on the internet. Welcome to our event will President Trumps threatened free speech my name is john and the Vice President and publishing here at the Cato Institue. Every event they will be, will represent a conversation among the group you see in front of you. Primarily the three experts on the First Amendment. I want to begin today by introducing each of them briefly. I should say, these people are as accomplished a great deal in law and the First Amendment. Im going to give you very concise bio of each so we can get to the conversation. Our first guest is fleming rose. To my immediate left. He was principally responsible for the to september 2005 publications of the cartoons that initiated the worldwide cartoons controversy in early 2006. He is the author of several books including and perhaps i would like to say above all, the tyranny of silence which was published by Cato Institue in an english translation in 2014. He has been awarded many literary prizes in denmark, including a literary award from the leading intellectual newspaper just last week. Frank buckley to my right, is Foundation Professor at Scalia Law School at george mason university. He has dual canadianamerican citizenship and is the author of the way back. The promise of america which appear last year and he was kind enough to discuss at a policy luncheon. Our final conversation partner will be bob corn revere. He is a partner at the washington office. He was named 2017 lawyer in the air in d. C. By the best lawyers in america and the categories of First Amendment and litigation First Amendment. He is coauthor of the modern communications law. I thought i would get our conversation started today on our event. That i would as verbatim as possible, read some quotes over the last year or so by now President Trump on First Amendment and free speech issues. In february 2016, then candidate trumpet said quote a im going to open up our libel laws so when they write purposely and negative and horrible and false articles, we can see them. And when lots of money. Were going to open up those laws so when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece we can see them. And when money is that of having a chance of winning because they are totally protected. In october 2016, he elaborated some. He indicated the idea that he thinks the First Amendment provides too much protection. That he would like to change the laws to make it easier to sue media companies. He lamented that under current law quote aour press is allowed to say whatever they want. Mr. Trump recommended at that time, moving to a system like in england were someone who sues a Media Company has quote aa good chance of winning. At the same interview mr. Trump said he is quote aa tremendous believer of the freedom of the press. Nobody believes in it stronger than me. November 2016, after having been elected president of the United States, mr. Trump tweeted nobody should be allowed to burn the American Flag. If they do there must be consequences. Perhaps loss of citizenship or a year in jail. And finally, yesterday, mr. Trump tweeted, if uc berkeley does not allow free speech and practices violence on innocent people with a different point of view, then, no federal funding . Fleming, could you get started here by offering some thoughts on mr. Trumps statements and your views . I would be happy to. It is nice to be here and thank you for the invitation john. I would think i would say in general about President Trump that he promotes a culture of intolerance. And the example you provided was, the flag burning. The suggestion that people might be stripped of their citizenship if they entertain that kind of activity. I think that indicates what i am pointing to. And this is a traditional approach among populists in the us and europe when they so to say, insist on speaking on behalf of the people and they believe they have a right to determine who belongs to the people and who dont. And if you do not agree, then you are not part of the community and you can be stripped of your citizenship. So this, i think this culture of intolerance and bullying is one general trend. When it comes to reliable law, i think mr. Trump by now understands that there is no federal but liable athere are only state law i think that you can use and or apply. And here, i dont think that mr. Trump is maybe the main perpetrator but his contributing to a climate that is changing the equation of the relationship between media and public. Since the New York Times in 1964, its been common feature that it is up to the media to determine what is newsworthy. And it is very difficult to win a case against the media if they had determine something is newsworthy. I think that is changing and it donald trump is playing into that climate. We had the hulk verses acase i think when they agawker went bankrupt. And you can disagree on the facts or on what gawker did but i think the conclusion is that no court anymore will provide the news media the final say when it comes to determine whether something is newsworthy. And donald trump, by labeling the media, disgusting people, this honest people, is playing into the undermining of the trust in the media. I have to correct something john said. John said he had assembled a panel of experts on the First Amendment. And i am none of that. I am here only because i was a trump supporter. So i am the sacrificial lamb. [laughter] and indeed my publisher was rather in protest. But what he does not know about me as i actually worked as a newspaper reporter. But i did not do it in this country. I did in the country i grew up in, in canada. I completely get it. Okay . There is just america and there is iran and there is nothing in between, right . [laughter] so you know everywhere else in the world is a world of despotism. But then i recall the quote the dark night of fascism is about to descend on the United States. But somehow it lands in europe. Now we dont do fascism. And as for the libel laws that trump wanted, well, working as a newspaper reporter ai work for a thompson paper which is a chain. This was in prince albert. This was ai was asked my politics i said i had been the president of a tory club and i was hired and if of the universe is unfolding as it should. And, by the thing i did was learn a bit about liable law. It was fascinating to realize i had some responsibilities to the truth. I mean it was just weird stuff. We are doing audits for example. If you report that Norman P Brown is alive and norman being brown is dead of course it is fascism and all that. Of course is not america. What else could it be . But the newspaper industry in britain is pretty darn good. Some people would have had the experience in the last couple of years of trying to get news about america from the telegraph or the daily mail. As for toronto, i mean they have for dailies. They are all doing rather well. Theyre all suffering from the ravages of competition and classified ads and the internet and all of that. And of course the barbarian invasion of ill educated millennials who cant read all of that. But somehow they are doing well, right . I mean circulation of the stars about 350,000, globe and mail the same. The post 200,000. They are doing rather well and i have not heard too many complaints about them suffering under this fascist liable law that you have been describing. Bob. First, i have to congratulate you on the title of this. This will, President Trump threatened freedom of speech. I think i would modify and say when will donald trump threaten freedom of speech. [laughter] his campaign was one threat to the press or freedom of speech after another. And, the thing that makes it unusual, it really is nothing different from most administrations. The difference is that donald trump is a bit like a fouryearold with tourettes syndrome. And he just constantly is speaking without a filter. As they have this constant outbursts that probably express the inner thoughts of most politicians. But he just says them out loud. Whats interesting is that, there been more panels in more places about donald trump and the First Amendment than any i can remember since i have been practicing law in washington. I have been practicing for over 30 years. There seems to be one every week. Assessing what the impact is going to be. And i get that. With statements like we need to open up the libel laws and the press being the most dishonest people on the face of the earth. But i think it is necessary to take a look and see what distinguishes this administration from previous ones. If you really want to assess the impact. I mean after all, while president obama didnt make the same kinds of inflammatory comments about the press that donald trump does, he did in his administration, initiate more leak investigations and prosecutions for leaks then all previous administrations combined. We also have, if you compare President Trump to hillary clinton. I dont think she was any more transparent than donald trump would be for certainly to the press for that matter. You know, both candidates this year campaigned on a platform of appointing Supreme Court justices that would undermine First Amendment freedoms. If you accept donald trump statement about opening up the libel laws as some indication of who you want to appoint then, that was one goal. Hillary clinton campaigned on the idea of appointing someone who had overturned citizens united. And again, i cant remember a time when candidates from both major parties campaigned hoping to undermine existing protections for the First Amendment. So when the question was raised, will donald trump threaten the First Amendment . The answer has to be compared to what . You know, i think both major parties, most politicians are hostile to the First Amendment. If they could they would like to open up the libel laws. They would find other ways to limit the press. So the question really is, what exact things would trump do . That could undermine the First Amendment. I think first in terms of just practice with the press. And weve always seen threats to limit press access to the white house. Steve bannon saying it is time for the press to sit down and shut up. Well, no. Its not going to happen. And i think those will have an effect but it is hard to tell whether or not that will be more in favor of free speech or against. Because i think news organizations will adapt. It may actually improve journalism. You have more reporting and less relying on access to people in positions of power. The New York Times, Washington Post, other organizations are already investing more in their white house coverage. And so, it may end up being a net positive because at least you know who your adversary is. With the administration describing the press as an opposition party. If that is the case lets see a real opposition. Secondly, in terms of policy. Trump might appoint to various key positions. I think that can be a mix of things. Jeff sessions is confirmed as attorney general. I dont think that is going to lead to any more openness when it comes to leak prosecutions. And during his confirmation hearing was noncommittal about whether or not he will continue that trend. There has been talk about whether or not the Justice Department will rely on his National Enforcement of obscenity enforcement unit. Donald trump as a candidate did take the pledge to crackdown on porn. Which seems odd for someone whos been in a couple of soft porn videos himself. But nonetheless. [laughter] you know, there is a chance that policy may move in that direction. I know people who practice First Amendment laws in that area are quite concerned about what might happen under the Trump Administration. And a sessions Justice Department. But time will tell on that. But other agencies like the federal Communications Commission are likely to move in a more First Amendment friendly direction. And the chairman was awarded the First Amendment or last fall. He had really nice things to say about protecting the First Amendment. But then you know, things can happen and was the chairman is subject to the political pressures of that role and we have seen chairman talk a good First Amendment game in the past. When push comes to shove, be more restrictive. But i am very hopeful about that. So i think we will proceed by people wanting the floor and taking it in a normal conversation. Then we will see how it goes. I will do some time aif you want to. I just want to comment about what you said about the uk libel laws. I agree that the British Press is not bad and they are doing quite well. Within the framework of the current libel laws but in fact that it has changed a little bit, 10 or 15 years ago a oligarchs and Saudi Arabian billionaires, they went to colts in the uk to suppress information that they did not like. There is a us citizen who published a book on financing terror. And she named Saudi Arabian billionaire in her book and he sued her in uk court. She was in fact convicted. I think three books were sold on the uk amazon. Com. She could not go to the uk and i think Congress Passed the law to make it clear that she couldnt be prosecuted in the United States. So these libel laws are in fact being used to suppress critical information. Suppress lives or i dont know the case, so i cannot comment. But i do get into the conversations with people in this country about freedom, which is the subject of cato. And it comes down to autocare we have the First Amendment and at least we dont have it the same way. And again i ran, that seems to me to be a piece of may i say, First Amendment fetishism pray it is not the case that you can easily compare freedom in one country versus another country. What if he did, which is something that cato does. Right . Cato has different freedom in different countries. And if you like freedom, if you were given a chance to stop all american laws in the constitution and First Amendment, for the Canadian Parliamentary system and its libel laws and medicare. You would be intelligent to swap. Because if you did that, you would find yourself living in a freer country according to cato. I rest my case. And indeed, other countries ahead of the United States on that list, all of them are well, mostly countries with british common law. That is to say, british or canadian style libel laws. Canada by the way, has the most proplaintiff libel laws anywhere. Although dino its funny about this thing . There is a tendency to look at things in isolation. Canada has extremely friendly and substantive libel laws but very defended friendly procedural laws. But the United States is just the opposite. Immune american procedural log barely beckons athey have strict amendment berries when it comes to other things. And to quote ben johnson. The differences may not in practice be all that good but in general, i discovered this myself. Im not practicing but i assembled this group called scholars and writers for america. And i did it in part because of that it would be amusing to find people who call themselves scholars supporting trump. And then what happened was the press went through the list trying to find dirt on the people. And they found one person. A person who, 30 years back, had been smeared as a nazi sympathizer. And there was nothing to the story if you had researched it for just a moment, you have realized the charges were completely aeverybody apologized for this afterwards. And i mean completely cleared of all of this. But nevertheless, the new republic carried a story smearing her as this you know, this nazi agent on the list. And one thought wouldnt this be a Good Opportunity to put a and then i discovered that by putting her name on the list, she was now a public figure and the New York Times aof course there is no such thing as the New York Times and sullivan in canada. Canadian Supreme Courts expressly decided not to follow that decision. And i regretted that barrier. I mean as it was we wouldve had you know, recklessness at least. And if one did a momentary search on the internet, you have discovered that there was a story and then there were these 10 counter stories and it would have been just too complicated to do. So i regret that. Yes, there are times when i will just mention this one last thing. I dont know about the case you mentioned. There are the cases where it is important to vindicate truth. And as you have mentioned, british courts, you will recall the david irvine case. He is a holocaust survivor. He was in austria. Thats where he was convicted to a prison term. Yes but im talking about the case in britain. A british judge said im going into this. You know i sort of know what happened to ain the holocaust but i will approach this with a fair and open mind. Having read all of the material, i conclude that david irvine is going to pay 2 million pounds. And truth becomes an important thing to vindicate in all of this. And that which gives newspaper writers a greater incentive to get the truth is not always a bad thing. Let me jump in here and maybe broadens out a little bit. The one thing about First Amendment, free speech issues for a long time. One thing ive noticed is, people generally believe that lives should not be permitted to be spoken. The only problem is, generally speaking, everybody believes that the other side is saying why we are in a aone here. What you actually set up is, now i understand this is a different thing but it is the general athere is no room and flexibility for saying well, maybe its not you know somebody can see it differently or that kind of thing. Number even people who are supposed to be in favor of the First Amendment and on Campaign Financial issues really dont want people running for office to say things that they think are lies. So once you in a sense, now we have the fake news area and all of the stuff. I would say that culture out there in a sense is people actually dont have that kind of leeway. To think that without that flexibility you really have created some justifications for First Amendment for free speech violations or limiting free speech. Thats why having government be the arbiter of truth is such a bad idea. And that is true whether or not you are discussing it as a matter of government regulation of newspapers or anything else. Or if youre talking about private litigation as in the case of libel. As trying to set that bar. That is why the New York Times is developed the weight there with a strong presumption that it is up to the plaintiff to demonstrate. But the statement is false and rained about what other constitutional protections. Im fascinated to hear about canada. It is a burning country. Elective syrup. And they do have different libel laws. When i think it would be an extraordinarily bad thing to try to try and import here. That is one of the reasons why wasnt so worried about candidate trump talking about open up the libel laws. For two reasons. One, he did the size idea what he is talking about. And second, dont he is going to be able to find judicial appointees. It would, in his charm, open up the libel laws. In fact if you look at the record of his nominee neil gorsuch give a rather strong case immediate and defamation cases. So im not so worried about President Trump fulfilling the promises of candidate trump in that regard. But in terms of the search for aand i speak as a form b former journalist myself. We saw in a case just a few years ago what the consequences are when the government does try and enforce standards of truth. And that was a case involving a federal law. It could punish people criminally for lying about having one military honors. But the court ultimately determined was that it really is a benedictine the government enforce standards of truth by law. And that it was much better handled through the marketplace of ideas. Through other people pointing out when someone has been untruthful about their military accomplishments. And i think that really does maintain the constitutional balance. Those similar laws have been attempted in trying to maintain trade by political candidates. If you can imagine that. Seems like you have to have night courts operating 24 hours a day if youre really going to enforce standard of truth by candidates. And frankly i think we currently athe oval office will have to worry about this a great deal as well. But we learned a hard lesson. That it really is incompatible with our constitution system. I think what we have heard right now is obamas rhetorical critic of identifying an extreme position. Then trying to position himself in the middle. Let me assure you john, there is no ministry of truth in england. Or in canada. And if you listen to parliamentary debates you would realize there is a pretty big latitude for the slang that goes on. Of course you parliamentary privilege but you know, it is simply not the case that if you are in a free society that you will going to start stomping on people playing politics. Right . And that is the point really. Again, if youre trying to judge liberty. I mean it depends so much more on the attitudes that everyone understands in society of that which is permitted and that which is not. And if youre in a liberal society, you know which, most western countries are. You understand that instinctively without having to be informed by the First Amendment expert. He simply no. And you know that when you go to these other countries, youre in a free country. And you know this because of the people in the country and not the politicians and not the courts. So you know, i guess i am somewhat sympathetic to the argument that maybe you should just blow up all of the libel law. You know, i teach contracts law. But you know, and i like it because it is about private order. I feel really uncomfortable trying to teach securities regulation. Which i do not believe in right . I would be like an atheist trying to teach a course and sacred geology. Antitrust law. Where american aall things which im not convinced and to the sum of Human Happiness in any great way. And liable in particular. There are so many ways i mean first of all there is all the new media which you will not go after. Because they are a judgment group. In the end it doesnt matter what a rag like the new republic might have to say in the end . Perhaps publishing ai70 only because i sympathize with duke of wellington but also because i dont exactly have the greatest respect for the american judicial system when i think of it aa case like the michael mann lawsuit. I mean, that was supposed to be shut down by this slop act. That is an effort to basically ais an acronym by the way for so lawyers are ait goes on and on. Might it not be better just to get rid of the whole thing . I am happily persuaded that inasmuch as i do think that libel laws work in canada, maybe they are not suited for america. And if you think you can just export laws like that, then you make madisons mistake. Importing the celebrated montesquieu about the celebration aseparation of powers. What madison didnt understand was that before modest view was a political theorist, he was a sociologist. In each country had an appropriate set of laws. The appropriate set of law for america might not be those of another country. If you grew up libel without me President Trump would have no recourse except his twitter account. Primarily. I will mention, i was a trump supporter. An advisor on the campaign. And though i read the post pretty regularly, i am not aware of anything that was said by the post or the New York Times that would make us libel. But do you believe that the truth should be protected by the First Amendment . There are circumstances where as in the david irvine case, where thought the result aand you know in general, i guess a certain amount of skepticism does make sense. You know the story about ain the newspaper each day look for mentions of themselves. For people to sue. You know ahe would say, judge and jury must decide. There are libel trolls that way. But you know the system mostly works pretty well. On people going around looking through to sue other people unless you are michael mann. West donald trump has a long record of suing people. By doing so for strategic purposes. To bank of a journalist or something. It is an increasing tactic to use it even though there is no expectation of winning. And it is being athe media are not as wellfunded as they used to be. So economic weapon has happened in the case where hundred and 40 million i guess, might mean that the media would back down if they sense that they would not be able financially to make it. And this is what is going on in this free society. When the powers that be, they go off the newspapers. You have oligarchs or politicians to shut down the media with this athese suits and economic weapons. So, your mention of the media reminds you of your initial comment. Which is about trusting the media. And naturally, i read a New York Times article in the last week or so. It pointed to Public Opinion data from a group. About the declining trust in the media. And it has been. I mean over the last 30 years, you know, they ask the same questions. And this i think his people, some people argue that this is connected to the idea of president Obamas Administration to do that many leak investigations which was really ai have intimidation on the press. They can do because nobody trusted the media and they are not particularly lowlife. Does that matter . Should we care about whether most, the most corporate or the most organized institutionalized part of the First Amendment doesnt have much public support. Absolutely, i think it is very important. It doesnt mean they should not criticize the media. You should. Andy should point to inaccuracies and failures. But, the media is an institution that is important to democracy. And trust. And the presidency, the media is important. To living democracy. So i do believe that, and i do believe donald trump when he calls the media deposition, it is contributing to the undermining of trust because it is based on the notion that of course the media has its own biases. But you treat your opposition in a different way that you would treat the media. So i think that is quite ai think that a more fundamental thing when it comes to donald trump and free speech and the right aso on and so forth is the following. I think it was Daniel Patrick monahan who many years and i said that everyone is entitled to his own opinion but nobody is entitled to his own facts. And that is not true anymore. Now, now we have alternative facts and this goes to the heart of what they have called the liberal science model. The fact that the Enlightenment Foundation on science is based on the notion of the right to free inquiry and this will be served if you have the right to criticize or there is no personal abut the truth and the final and will prevail. And the more speech, the more criticism, the more backandforth, the better we will achieve in the end. And if that is the case, in a situation where you cannot agree about what is fact and what is not is a fact. There in lies the problem. And john, the question asked is a very broad one. I dont know if you can point to any one thing and say that is a problem. In a world of alternative facts, who do you turn to . I mean it used to be the media model ahe had expert gatekeepers with large established organizations. Whether it is broadcast networks or major newspapers. It served that gatekeeper function sometimes well and sometimes badly. As media has become more democratized for the internet, you have a number of Different Things going on. One is the economic base where traditional media has been eroded. So they do have less strength to stand up to questions from government and other institutions. You have less trust because media sources have become more diffused. And then it becomes more and comment upon the individual to be able to evaluate information. And make critical judgments about what is to be true and what is not. You cannot just rely and trust on an authoritative source to tell you as existed in the paris media model. And so becomes more difficult and more pressures are placed on the individual. What we really badly need is more education and Critical Thinking skills in media literacy. So that when somebody comes forward with their facts, youre able to you know, the general public is able to evaluate that. And make better judgments. But part of the good news and bad news about the internet, it has democratized information so that every individual has access to a global platform. But it also has made it so that the average reader, the average viewer has no real anchor. For determining what is real and what is not. Let me step in right now because i think we all know what the story is here. The immediate is a selfinflicted wound. We on that. I mean reading the Washington Post over the last year has been absolutely hilarious. The antitrump stories. Sure yeah, two of them on the front page, no problem. And the metro section. And then of course the book review section and the sports section. I never once did seen antitrump story and the weather report. I will give them that. In the future theyre going to be essays and books written about what happened in the media in the last year. And what happens the media is the media gave flip the bird to about half of its readers. Right . And those readers who did not like being called deplorables and he did not think that they were simply clinging to guns and their religion, they went to other news sources and they are out there and so we are getting that kind of competition. I mean the suggestion that there is one simple purveyor of truth which happens to be the New York Times or the Washington Post, i think is hopelessly nacve. I dont want to asome school of journalism courses on whatever, i think it will be cured of anything by the market. I think at some Point Newspapers and maybe the times atheyre trying to do this. Other newspapers will wake up and say look, there are other people out there and they have some, theyre not all bigots. You know, the kind of aif you call him that we they would say to take a hike. Right . And they will turn you off as they should. Somehow the strategy did not work terribly well when it came to selling newspapers did it . Maybe at some point. At the difficulty here is viewing this as a political game. Where you are either on one side of the other. Frankly i find the full candidates are deplorable. Now that is part of the problem. When you have a system that is apresenting really a very limited range of political views. It is really not a question of whether or not the media is for one candidate or against one candidate. It is really a question of having some way of getting information out there. That people can trust. And that is vetted. A lot of people critically evaluate the information presented by whatever party wants to exert some kind of role. But . Youre talking about opinions and i agree with you that the media has contributed to the undermining of the trust. But, what you think about an outcome of the Trump Administration talking about alternative facts . And that we can not agree anymore about what is effective and what is an opinion . I think it was bloody stupid. Yeah, it was more stupid i think . Weve been talking about the problem the ministry of truth. And now we are saying but we will have that only the newspapers will do it. Do you see a problem there . There is no ministry of truth. It is not the government and it is not the New York Times. Absolutely. There is not a lot of alternative sources. And the liberal science model is rush because it is based on these two principles. No final say and no personal authority. You have to put together for arguments and they had to be checked in the public and knowledge production and projection of facts ait is breaking down. When this process of back and forth criticizing and challenging cannot lead to a result we agree on what is the truth right now. It doesnt mean that the final truth but at some point in the process. And i believe that is really, is a deeper problem. And it is not only about donald trump. It is a general cultural process that is going on. Let me push this off in a slightly different direction. Is the problem actually anonymity . Right . Not only just the anonymity of violence like we saw in berkeley, that is pretty typical. But the fact that so much of this speech has taken the place of the older establishment media. Which i agree with frank. I think the role, the question is sometimes people that dont actually have much use for the First Amendment like a lot of the establishment media, we may have to support them anyway. Because thats what is the right thing. But i would say, the whole question of anonymous speech online is in large part the replacement for that. And that is also part of the question of facts and so on. Is like the old joke you know. On the internet no one can tell if youre a dog. Outlets like breitbart. The anonymity question is when i raised right . The anonymity is that you can, this is sort of those agoes back to the question because as part of the issue. People can attack others or just, or they can suggest you know, a guy showed up at a a with a gun at a pizzeria nearby my house with no facts really. Just support him. Our argument always is, and im just going out there. Im not giving up this argument. It is more speech. That is Justice Roberts argument. Thats what he says in citizens united. The answer is more speech. Is it working with the replacements for these . Breitbart is not anonymous speech. I was not able to tell by your question whether you are in favor of anonymous speech or not. I think we have a strong constitutional tradition that goes back to the founding that is predicated on anonymous speech. But at the time of the founding, he a lot of the dissent would not have happened. Had the speakers been required to identify themselves and because of that the Supreme Court in decision after decision, has recognized the First Amendment does protect anonymous speech. Now that being said, anonymous speech online can lead to problems. You know theres a joke, nobody can tell of your dog. They can tell right away if youre an ass though. [laughter] there is a lot of that going on and a lot of trolling. People feel like you know, because they are behind the veil of anonymity that they will just say anything. And that is just something we have to put up with. Because the answer in the end is more speech. The list was anonymous after all. . Im getting you guys stirred up. Im in favor of it too. By the way we should do one quick plug because we were mentioning jonathan rauch. For those of you that have not read it this book is an ongoing debate. No one has special privilege and the debate never ends. This ais the answer more speech . And refer to the incident with the pizzeria and it plays into the debate about big news. And that is also a challenge right now. I may just talk a little bit about what is going on in europe. Where i come from on this front. In europe, there is an increasing pressure for criminalizing fake news. And it means in fact, a minister of truth. The government is to decide what is true and what is false. Which i think is very unfortunate and right now you have very influential german politicians. Both and the social Democratic Party and the christian Democratic Party that want to equalize fake news to hate speech. Up to five years in prison. If facebook disseminates fakeness and does not take it down within 24 hours, they can be fined b,25,000, b,500,000 which is 500,000. The antitrust minister of italy has come forward with a proposal. He wants to coordinate from brussels, the fight against big news and interesting thing is, the majority of these politicians, they identify the populous partners in europe as the disseminators of fakeness. It is invented quite transparently to go after your political opponents. I would not recommend that the United States, and im quite sure you will not go that way, but aand but, it leads to a situation where you will have government sanctioned news. And that is what you had in the soviet union. And in fact, in the soviet union you had a law criminalizing dissemination of the deliberate false information undermining the soviet political and social system. And that is the article in the criminal code that was used to point dissidents in labor camps. I am quite sure that the european politicians are not aware of this nasty association but nevertheless i think it should make them think once or twice before heading down that road. Well, now you get your chance to get better answers out of our people here. Let me say first, we are going to the question and answer section. Please wait to be called on. Wait for the microphone also. So this is sometimes an issue. And the reason for that is, everyone in the room can hear you and also people that are online. So please wait for that. A person will bring a microphone. And here, just on issues that we just have been discussing. We ask usually that people announce their name and affiliation. If you dont want to go thats fine. [laughter] for some reason youre going to be on t. V. Anyway. But aplease, above all, make your comments in the form of a question. Lets begin with aand im not being very rude by the way i just pointed people. I dont know your name. The lady in the middle, she has her hand up. We will try to get to everyone. Hi my name is rachel oswald. Im a journalist and very concerned about press freedom issues. My question has to do with dangerous speech and violence. People say dont cry fire in a movie theater. I am wondering how that old adage applies to the digital age. Or just the state of heightened, the haynes spread of news and also heightened polarity. Im thinking for example, somebody wants to burn a koran. We know historically that when someone in some corner of the world burns a koran, it will be violence and possibly death and other corners of the world. And the people who disseminated the fake news story about the pizza parlor sex ring. You know certain kinds of information that it is so incendiary that some people would move to violence way. How do we treat that kind of speech . That it will make people turn to violence. Start with the homes of shouting fire in a crowded theater he said no one would argue it is protected to shout fire in a crowded theater falsely and cause a panic. When he wrote those words in 1919 it was a time people were being sent to prison for advocati advocating against americas involvement in world war one and the United States was using the espionage act to punish people who were speaking up and president ial candidates. And the likelihood they you have that imminent action take place. So the first developed was very protected so now you asked about whether or not to a debate if the words are so inflammatory we need to take action. If we anticipate a global media then read better star surpassing with the freedom of expression. We will still have to deal with the fact that people will get upset with what they see or hear or anything else. Isnt an excuse to limit freedom of expression but that is the threat when assessments and having a safe space to be protected from any kind of upset but that leaves to a perception of a right never to be offended that is the standard that the First Amendment is history. I was involved with in the crisis and some of the issues that you raise one informed the debate back then and there were people who said you should not have published those rituals. The interesting thing is all of the violence during the khartoum crisis transpired for individual citizens to not have freedom of expression. These. There is no violence this is not a criminal offense. Helped t to manage disagreements in a way they did did not lead to violence . The from that member argument if you understand human beings to make up their own money than there is no automatic relationship as individuals we have the capability to choose how we react to what other people say. If we know that human capability reduces human beings to those imager children. There is a clear distinction to be made there seems to be a bit of that these days and speech which really offends people. Would anybody be worked up if it was of a christian orfe jewish bible . Ups know. Is that a hideous distinction . U. S. Skiing someone else . Not are you offering a fig leaf by which that person thinks they have the privilege. Vendor stated the argument about flagburning why they could prohibit matters of further protests that there would be violent reactions. Even Justice Scalia and it even seemed it would cause a violent reaction with ceramic is the responsibility of the media because there was this segregation and of whose back yard and those women he may a radio a one negative event but in fact, secretary gates would call him up and but in fact, obama called on the prioress citizens then gave ended be prudent but with those u. S. Citizens tote rate and i fink that israel. It is also happening in europe whiff individuals to do things one the because of those businesses in a democracy at all think we should do that. My name is Stephen Bennett know that we have this discussion, watch the tweets. [laughter] f tranfive mine works at the nsc and he watches me but its use their in process to i come from a background where my father wrote 11 and he read in another newspaper you could get a subscription to the New York Times and then to be concerned with what the media said. But today in the post truth era that sets the individual to seek out the truth to determine whatatare re services are reliable ii think you cite the people in this room ents a minority of people who form opinions. How do you encourage and increase the number of people to seek out reliable sources of news and information . I am not sure i know the answer to that question. I think it starts with education. It starts with a set of common understandings that the individual is itunesmoantonymos the ability to seek out their own opinions but also participate in critical discussions. It comes back to Critical Thinking. If other people have better ideas of how to promote that i would love to hear them. If you think about one thing you can think about American Kids on the s. A. T test compared to other countries and we do terribly and our k12 schools fail our kids miserable. You could start with better schools. I think there is a fundamental sure here and that is the way social media works and the way it reinforces ignorance. It is not only about seeking reliable information. It is about exposing yourself to points of views that you dont like because social media makes the algorithm of social media is created in a way that it will seek conformation bias. If you like and share, you know, the things that go along with our point of view. That is wie during the campaign a lot of people never came across a trump supporter on social media and couldnt believe he could win because they didnt know there was anyone out there. So, i think a way to change this is trend is we more consciously like and share stories and information that is contrary to our own conformation bias. Not and facts are social phenomenon. They only become facts and knowledge if they are part of an interaction between human beings. It means that everything trump says is only becoming fact naufrj if it is being accepted by his community of interpretation. I will say one little thing. There seems to be an assumption that most of our problems would be cured if people spent more time thinking about politics and reading about politics and listening about politics and sometimes dont you think you have had it up to here . Yeah, i do. But i am not just talking about politics but talking about life. Arguing over who the best band you want to listen to, best restaurant. Politics is part of life but it is not the most important part of life. And what is i mean talking about having it up to here. I was laid up with a broken leg through most of the fall. I saw more Talk Television and listened to more political commentary than i did willingly. Talk about a captivated audience by the time election day rolled around i could not listen to another minute of it. When people talk about freedom of expression there is a sense it only has to do with electoral and political speech. And you know, one of the wonders of the First Amendment is that the court has acknowledged it protected all expression because all of life is filled with talk, and communication about all of the ways in which people live including sex. That is wie the First Amendment doesnt distinguish between which ideas are better than others or which ones rise to a certain level or they are going to be protected. It is an open field for people to form their ideas about how they want to live. And politics is a game we play in washington, d. C. It seems like it is also and get ready for this i will Say Something good about trump and obama. I dont know if that has happened at cato before. President trump has done a good thing in the sense he has got a lot of people interested in politics but more than he got them motivated and got them to believe, my impressions is, a lot of people that thought this was hopeless and that sort of thing, he got them to believe in it. He got them to believe in a certain way. So in other words, the motivated mobilized politics you started with an advocate and meet and argue with others and you have to take them seriously and there is a development of a civic capability there. So President Trump got that going. I think i would like to say is Something Like what president obama did when people were talking about safe spaces and College Students needing to be protected from ideas. It would be great to see President TrumpSay Something that was supportive of the cultureal of the first amendmen. Something positive could followup on his initial mobilization of these people who could become better citizens under the First Amendment. His impulse hearing about the berkeley situation was deny federal funds . I appreciate the fact he was saying good things about freedom of expression and that universities shouldnt cancel speeches because there is discomfortable with the message but the notion the way to dael with those situations is through federal cohersion strikes he as odd. But you were saying the problem is everyone has their own bias reinforced and you see that on campus where you see contrary ideas as being dangerous or unwelco unwelco unwelco unwelcome. We should have a more welcoming attitude toward ideas that you hate so that you can engage in that robust give and take. We are not seeing that with the polarization. We are seeing shouting matches. Let me follow up on that briefly. One of the greatest threats to me on spree speech comes from universities, nearly all who have offices of diversity, this that and the other, and are very quick to try to suppress people who have conservative views about anything. I dont have a particular problem about an administration that dries to defend Academic Freedom. I remember what the battle lines were like 50odd years ago when there were royalty holds. At that point, there were places like the New York Times that came out in favor of free speech. I would like to see the defense of Academic Freedom coming from the department of education and i would like to see the New York Times oppose that. I agree with you there. We havent met before but i spent half my time litigating First Amendment cases on college campuses. I can tell you it is what would you call it . A vast bipartisan conspiracy to restrict speech regardless of all it is conservative or liberal. My cases have involved students across the political spectrum. What you have is a bun organizan that think students cant spoke for themselves. It is a very unfortunate trend and fortunately our constitutional protections are strong in that area. The woman on the aisle. My name is maddie and m i a student at American University where there has been some flag burning last semester and protest. I am from minnesota where there is currently bills being presented to restrict forms of protest and i think that is a freedom of expression that hasnt really been touched upon in this panel and i wanted to get your opinion and perspective on that. On what . Flag burning . Let me Say Something about flag burning since you mention it. I think it is not improper for a country to promote a sense of nationalism and i recognize nationalism in other countries that can be dangerous. But i think it is benign in american. You have to understand what makes people american. It is not race or religion but rather allegiance to documents like the declaration, constitution and First Amendment and speeches by lincoln. That is what makes you an american and what makes a refuge an american once he comes here and comes here because he believes in those kinds of principles. Part of that involves the supremacy of those principles over the symbols like the flags. So it is glorious for the court to protect flagburners in defense of the more fundamental principles of that which makes one an american. I salute the flag burning case. Of course, you know, if you want flag burning the best thing you can do is prescribe it. That is when you will see it. The wave of flag burning that took place after the Supreme Court upheld the First Amendment right to protest using the American Flag was unprecedented. They dont burn flags elsewhere . No and if quran burning is protected boy the First Amendment flag burning should be as well. Where i come from, burning a flag of other countries is a criminal offense while it is not a criminal case and we are in fact when the magnus was being burnt they wanted to turn it into a criminal offense in denmark. The wave of flag burnings came in the way of congress trying to correct the Supreme Court when it was going to be made a crime. And just going back, both president ial candidates presumably supported criminalizing flag burning. The gentlemen right in the middle . Wait for the microphone. Bill bush from do ask, do tell. Let me go in a slightly different direction. Talk into the mic. I think there is a law of section 230 of the communication decency act which helps protect Service Providers from downstream liability. Is this likely to come under assault during the Trump Administration over issues like the misuse of the internet, the cyber bullying, terrorist propaganda, child pornography and the back burning page. I think it could be an athlete to usergenerated content. In europe, they dont have strong protection of downstream liabilities as we do in the United States. I thought it would be mentioned. I dont have a problem, by the way, with anything milo says. Little surprised i have never he hasnt been mentioned this morning but i wanted to throw that out, too. I havent heard anyone from the Trump Administration talk about section 230 specifically. For the president to Say Something about it something will have to explain to him what it is and i dont think he would think it really affects him. I think there is constant pressure on section 230 says it says if you are an internet platform and host the speech of a third party you will not be held libel for that. It was almost an accidental Protection Congress adopted when it was really setting out to regulate the internet as if it was broadcast television. That provision remained it and has been an important driver of internet freedom. Otherwise, if you are a platform and libel for speech somebody posts then you have going to have to be responsible for millions of postings if you are facebook or you be or backpage. Com. And you know under those circumstances nobody is going totake the risk of posting anything to take. The internet is wide open and lots of things people object and as a consequence there is a constant pressure to revise section 230. You will hear talk about it in congress. I havent heard the white house talk about it. But i think section 230 is secure and by the way, section 230 is backed by First Amendment protections so even if it didnt exist i think the First Amendment principles enshrined on it. I would say speaking on behalf of my colleagues at the Cato Institute i would say everyone i work with does not agree with milo and the things he said. But he has the right to say all of it and the government had no power, including someone at berkeley which by the way the Berkeley Administration behaved seemingly pretty well what from we can tell. It is also important government doesnt always have to be to limit government you dont have to be favoring what they said. That is crucial, i think. Now, gentlemen on the aisle there. Thank you. Paul from the university of toronto. I would be interested in the panels thoughts on how donald trump uses twitter. If you are megyn kelly you can look after yourself. If you are a journalist that gets attacked you may not have have resources to protect yourself or attacks by mr. Trumps other followers. I am wondering how that has an effect in the sense private people might be reluctant because you dont know who is going toattack you. The tone that goes with social media and the president isnt the first to do this. There is a lack of civility that the president of the United States, by his own action seems to endorse, condone and participate in. I agree. Let me Say Something for trump. What i will say is something about the american constitution. What it lacks is that which madison described as filtration. In other words, a system in which only the best would rise to the top and he thought this would happen when you had a president appointed by congress. Madisons ideas about the constitution were in fact adopted. He is the father of the constitution. Except it is the canadian constitution i am talking about. This filtration system is the system of parliamentary government. Hear you have the paradox that you have president s who are not filtered that day here who dont have the experience of standing up before the opposition bench for years and years. You dont have that kind of filtration. On the other hand, you have made the president , the head of state as well as the head of government is therefore someone who you are trained to revere. Look, i think politicians, nearly all of them, all above the lowest. But in your constitution, speaking as a foreigner for a moment, in your constitution you have to revere these guys. If there is a tragedy it requires a president ial healing speech over which peggy nunan will drop a few tears and if there is something glorious that deserves a medal i think it should be done by prince charles. We have a system here and use Reality Television to filter our candidates and they dont give up their twitter accounts once they are elected which is the problem you were talking about, i think. It is a problem. But i dont think i would connect it necessarily to social media. If you had a new president elect who had a News Conference and singled out individuals then i think you would are the same problem. The fact is the president , as used his twitter accounts to single out companies he doesnt like and there have been unfortunate results. I have a long train commute to work every day. I was talking to a friend and he said he had an acquaintance who could retire because he developed a system of following trumps tweets and making trades in the market based on those tweets. So that he could tell if the stock was going to go up or down depending on what the tweets were. And in six months the go is going it retire. Again, i have no idea is this is true. But i wouldnt doubt it. Yeah, i will agree with bob. I dont think it has anything to do with the specific media and it is a general challenge. But we are still living in a liberal democracy and institutions do protect our right to speak out. This is a question of individuals making decisions to speak out. I mean it is not a jungle. You can speak out. It may take some courage but doing any comparison it is the same with terrorism. I mean the way you fight terrorism is by not letting you being terrorized. By doing that, you reduce terrorist act to symbol of criminality. You can take out the political content of it. So if you sit back and feel intimidated and not speak out there will be consequences. But it is up to everybody to make up their mind what they think about it and react. So follow from that. We have all done our good to fight terrorism today because we sat in a room for an hour and a half with flemming rose. I want to thank each of you coming. You can continue the discussion upstairs during our lunch which you go to the end and go up to the george yager conference