Opinion that matters the most is your own. Cspan, powered by cable. This is from the Cato Institute data symposium in washington, d. C. All right, we will keep this welloiled machine. Reminder to online audience you can submit questions by going facebook or twitter and submit questions on twitter using catosscotus. Once again, im tyler research fellow, editorinchief of the Cato Supreme Court review. On this panel you will hear cases broadly related to speech and expression, sometimes just none of the above. These cases concern the sometimes difficult tradeoffs we would make in a society where we all wantoc to speak but we dont always have welcomed olisteners. Many of us also sell speech products in the open marketplace where we all may adapt and make speech before for us but we want credit for the art that we create. The cases you will hear all in some way involve a balance of unrestricted speech and unrestrictedec silence against other societal values. Turning to another case, how to do we immediate the freedom of conscious not the speak with an economy that many demand speech services. Shifting to intellectual property, when was asked permission. How do we encourage creativity while incentivizing the creation of original works and ensurely they are fairly compensated. These and more questions are raised and perhaps at least partially answered by the cases and articles you will hear about next. Just enough to set the stage for you all in the audience as we shift into a discussion and q a and i will keep their bios very short here. First up, professor clay calvert, former director of the First Amendment project at the university of florida and he will be speaking on counterman versus colorado. First of all, pleasure to take part in the annual Constitution Day symposium. Little bito spend a of time this morning or this afternoon talking about the Supreme Courts decision this june in criminal low case of counterman and colorado. Online stalking causing serious Emotional Distress. Sent hundreds of unsolicited Facebook Messages the a colorado singer song writer named coles who he had no prior relationship or any kind of relationship. In short, counterman was a total stranger who sent terrifying messages such as and this is the fun part, fuck permanently, staying in cyber life is going to kill you, die, dont need you and sent messages suggesting he was watching her and knew her movements. He kept coming back and just created new accounts so he kept following her. And ultimately caused waylen to cancel several Live Performances and turn down singing opportunities. A colorado jury then convicted counterman of online stalking causing serious Emotional Distress but counterman claims messages were protected by the First Amendment guarantied free speech because as he argued they did not rise too the leverage of unprotected true threats of violence. And thats where the Supreme Court comes into the picture here. How to resolve a key question of when exactly a statement amounts to a true threat of violence falling outside of scope. Compared to unprotected categories of speech Like Fighting words, obscenity, relatively new to newer carveout to constitution protection at least the Supreme Court recognized it. Began in 1969 in a case called watts versus the United States. The case overturned robert watts for threatening johnson antiwar rally near the washington monument. So complaining about being drafted 18yearold watts told the crowd if they make me a rifle, the first man i would get is lbj, the crowd laughed. Political and i quote, here, statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violencece to a particular individual or group of arindividuals. As i stress that means to, what does that really mean is unclear. It was unclear lower courts disagreed about what this really meant. Was it requires speakers to threaten someone or intended to communicate a message that came to be understood threatening to the person by whom it was received and thats the issue that thepe court tackled in the counterman case, counterman versus colorado. Does the speakers mental awareness, statement threatening nature make a difference in deciding whether it constitutes threat or reasonable person in the position of a target would find the message threatening. And its important question because sometimes an intended message may get lost in translation. A joke might be misunas a threat, a threat may never have been intended. On the under where inperson context is stripped away and hyperlee as we know is communicative norm, this may be especially so. A speaker fears being convicted for a misunderstood message may engage in censorship. In other words, a fear of liability might produce what we like to call a Chilling Effect on speech. Additionally, this is the question, who constitute it is hypothetical reasonable person today and sometimes sensitive times when it comes to sorting out whats aes threat. So supposedly objective reasonable person standard can actually turn out to be subjective when left in the hands of jurors. In short taking into account something about a speakers subjective state of mind regarding the allegedly threatening nature of the statement sometimes may safeguard speech and prevent a person from being convicted who is really not morally culpable. On the other hand, its intended to protect people from certain harms. The Supreme Court earlier stated before the counterman case that its designed to protect individuals from fear of violence, from the disruption that fear engenders and possibility that threatened violence would, in fact, occur. So the jury in billy rayman countermans case in colorado was not asked to consider anything about at all about state of mind, what he believes and what he intended by his statements. What he thought did not matter. All it counted that a reasonable person would have found them threatening. So when decided what if anything courts should consider about a defendants state of mind regarding their awareness or lack thereof and threatening nature of what they are communicating, the Supreme Court dare i say strike a balance within interest. Specifically try the balance the firstamendment interest in protecting speech on the one hand withen the interest of protecting victims from the terrifying life disrupting harms they may suffer on the other from threats. What the Supreme Court concluded, a 5justice majority, opinion joined by justices from across the perceived ideological and political spectrum namely chief Justice Roberts and alto, two w. Bush appointees and brett kavanaugh, donald trump appointee. Consciously disregarded a rdsubstantial risk that communications would be viewed as threatening violence. Really 3 parts, consciously disregard, substantial risk that will be interpreted as threatening violence. This amounts to requirement that we call recklessness. Justice kagan, they have consciously accepted a substantial risk of inflicting serious harm but because the colorado jury was not asked to consider this, the court tossed out countermans conviction and sent the case back to colorado where he could be retried in according with recklessness standard. Two justices, sonia sotomayor, a typical threat case. Specifically they believe that the government must prove intent or purpose by defendant speaker to put a person many fear of eminent violence. Its not enough that a defendant speaker was not aware of a substantial risk, harm and consciously disregarded, in their view instead feel threatened. Theres another level called knowledge. In otherf words, the defendant speaker might not have intended to put a person in fear but instead knew the target would be fearful and finally Justice Clarence thomas and Amy Coney Barrett issued descending opinion, whether its intent, purpose, knowledge, recklessness its simply irrelevant. All the government must prove that a reasonable person is fearful. The least free friendly possibility. In thus, they would have held countermans conviction. That provides a brief overview with the bottom line that the court adopted this recklessness standard or mental state, that the government must in other words demonstrate that a defendant consciously disregarded a substantial risk that is communications would be viewed as threatening violence. Just to go back to justices in case you were keeping track in the majority. That was 5 justices nominated from four different in two different parties, justices can unite justices despite ideologies. All right, fantastic. Next up is christopher greene, professor of law and jamie in law and government at the university of mississippi and he will be speaking on 303 creative versus elanis. Beautiful segue unfortunately interrupted by talking about not me but 3 out of 3 was one of the big six cases, right, at the end, conservatives versus liberals. It got a lot of press, i think, but most people are pretty familiar with it but briefly this is colorado, they were at the court five years ago in the master piece cake shop case, cake shop was a free exercise case, of course, not, free exercise clause, both of these are 14th amendment cases but i will whine about that in a minute. Masterpiece. Well, if youre going after this poor poor jack philips because of hostility to his religion, that violates the free exercise clause as incorporated by the 14th amendment but the 303 case masterpiece cakes, this is about websites. I mean, i got married 25 years ago and the internet was just barely a thing. Young people, i see some young people in the audience. If you if you go to a wedding frequently you will have the websites that get put together, a lot of times the the url or the name on the website will be some weird of the two surnames. My name is greene, so if you have something that could be greene, so my grandmother. Her maiden name was foot. Well, you know, one foot turned green. You have the websites with some kind of jokey on the name. Anyway, people have a website for a wedding these days. Unlike Jack Phillips, she knew that colorado would want to come after her if shell needed door service for opposite sex weddings are not same sex weddings. When i told my kids about it they were like who are the people that wanted a website that she said no to. There actually were not any people because she filed a declaratory judgment action knowing colorado with the after her. Obviously, they would. And a lot of the press coverage when the case first came out gave the impression that this was a case about rightness, which it was not. But, you know, she obviously had a very real controversy with the state of colorado. But there was no particular couple that came to her saying we want a website. So, lori smith, so, she loses , she actually filed a federal lawsuit, she loses in the 10th circuit on this kind of wild ground that there is a compelling interest in getting any particular person services. Because lori smith has a monopoly on lori smith this, the 10th circuit had this wild theory that did not get much play in the Supreme Court. Just kind of a wacky ground. But she petitioned saying this would compel me to speak. It violates my free exercise rights under Deployment Division lets overrule Deployment Division versus missus smith. We will not grant a free exercise. We will even rewrite your free speech question. Making sure your religious views have nothing to do with it. Anyway. So she wins. Because the court says this is analogous to hurley on compelled speech. The short version of the argument, this is a lot like a parade. You are compelling her to speak. I had a much bigger game theory that i floated in an amicus brief. There were a couple amicus briefs in the theory that i was floating, a big amicus brief heading back at it. This theory hitting back at my amicus brief with Joseph Singer at Harvard Law School and some friends of his, this was adopted whole hog and pretty extensive lengthy form by justice soto myers said. As you read the opinion, spending Something Like three or four pages really going singer is right and all of these cases that singer cites say, what is the theory . My theory is, we should reinvigorate the Public Interest doctrine. As applied to the same sex wedding cases, the eye should be if you can get the service somewhere else with no additional hassle at all, if you have access to the relevant goods, there is no reason to force a particular person to supply it to you other than the desire to have that persons view suppressed. And that is not a legitimate interest. Unless you have scarcity, you dont have a genuine reason for public accommodation law. Okay. Singer and his colleagues say, that is not the right history of public accommodations law. They say public accommodations law is about to independent. They say if a business offers to serve the public, if any business at all offers to serve the public, it is subject to a duty to serve all the members of public e equally. It is not limited to, carriers, not limited to any particular kind of business. This is directly contrary to something the Supreme Court said in 1923. One does not devote ones property or business to the public use or clothe that with the Public Interest merely because one makes commodities for and sells to the public. Okay. Why wouldnt the court want to cite this wonderful case from 1923, of course, it is locker phobia. You dont have to go full lock in or to get there. So, what i want to do and what a lot of scholars in the history want to do, want to have a tradition and equal citizenship approach to economic and entrepreneurial liberty as well as other things under the 14th amendment. So, you know, First Amendment, what is the first word on the First Amendment. Congress. You will not be able to go back to 1791 and figure out what kind of occupational limits will be proper. Why . Because a 1791 First Amendment was written for federal government that has no power over occupations. How do i know that . Because they did not even have the power to prohibit slavery in the states. Look at article one section nine clause one. Makes no sense. Okay. So if we reinvigorate the 14th amendment, if we go back to what is a tradition of public accommodation, but will you find you will find these two rationales. You find some cases saying that the public accommodation duties are for businesses that offer to serve everybody in the public. You will also find cases saying these laws are for the accommodation of people whose circumstances oblige them to trust particular people. So that is a paraphrase, a case from 1703. A case from 1701, these are both anyway, a whole lot of historical details. I invite you to read the article appeared basically stoudemire mistaken singers mistake, they look at a bunch of cases for everyone who served, business is to serve everybody. They do not look, they dont mention these cases or particular circumstances of scarcity. Basically when i am mentioning, what about charles wolf. What about cogs. What about these other 19th century cases that they talk about scarcity. Well, there are more cases when they talk about serving the entire public. Counting up cases for different rationale is what we should do. Look at all of them to see if we can have an integrated rationale 1701 case in 1703 case are written by the same author. The way we should think about it is this. If you are a railroad or somebody surveying a particular people through a difficult scarce situations, you make an offer to the entire public, come on my railroad and you can go particular places and then you say it will be an extra 3000. A billion dollars if you want to store your laptop in the safe or something. Youve got them over a barrel. The offer to the public. It causes the scar city which requires the public come public accommodation. That is my story of how you can put all of the rationales together. Es if you look at munn versus illinois, certainly if you look at charles wolf. That is the picture that you get there is a number of really particular pieces of evidence that i think stoudemire deals with really poorly and singer, there is this line in the 1914 article called business jurisprudence where the article says what does it say . Nowhere is monopoly suggested as the distinguishing characteristic. She reads as saying nowhere in the discussion of public accommodation and the entire history of the 19th century as it discussed in context talking about the early 18th century. The 1700 not think that he had nothing to do, it is obviously criticizing the Historical Foundation of munn. Theres a bunch of details if you are interested in that, which, of course, you should be. Virtually, all of you are, i am sure. You can get some dirt under your fingernails. There is a sentence, not very committal from the majority and this log to set about that proposition. It makes me think the dissent is expecting to see this again on this ground. Someone would say given the weakness, it seems like this is coming again and i think that it is winnable. So we will return to this i think again. At some point. Maybe another five years. Not nice round numbers i would say. Finally, we have gregory who is an associate professor of law at the university of baltimore. Senior litigation counsel. Recently served as a resident associate justice of the Supreme Court of the public. Speaking onto intellectual Property Cases. Andy warhol are foundation greg. Thank you. Thank you for having me. It has been 10 years. So, you know, it is nice to be back. It is kind of odd for me to be on this panel because First Amendment issues in this case were sometime