Cause imminent violence. Thats the principle that comes the brandenburg case. It was articulated by brandeis in witney, and it makes america, as Salman Rushdie said the most speech protective country in the world. And on our first panel, were going to explore the history of that shining idea with three of americas greatest history wins of freedom of speech. And im so excited for the conversation we have, jake and martin gamma from the future of free speech project, akhil amar from yale law school, steve solomon from nyu and jacob rosenbaum. I want jump right in and first say that your book free speech a history from socrates to social media, i think is the clearest and best history of the evolution of the idea that ive read and i want to begin by asking you, where did it come from . The phrase that we must have the freedom to speak as we will and think as we speak you teach came from tacitus, the roman historian, and it was then picked up by spinoza i learned from your book and then articulated by catos letters the great whig revolutionary theorists, who inspired jefferson. Tell us more about that evolution, how it began in athens and rome, and then was picked up by the enlightenment. Well, first of all, thanks for inviting me to you. Im not an american, so i feel like ive been given a card to the all star First Amendment game here in the us. So its a great honor to be here. Yeah, the First Amendment was not the first invention of free speech. I would say we need to go back to the athenian democracy. Actually, to find the origins of free speech. And the athenians had two models of free speech. One was, is a real meaning equality of political speech. All free born male citizens had a right to speak and then policy, which is a civic commitment to the tolerance of dissent, which permeated athenian culture. And then, you the interesting roman example of tacitus, but the roman is a bit more top down, elitist conception of free speech. So it was the lead welleducated elite, not the the unwashed mob who was supposed to exercise free speech. But it was the roman ideals that inspired us. As you mentioned, catos letters that came up with this great enlightenment meme, that free speech is the great bulwark of liberty that made it into the virginia, which made it into madisons first draft of the of the First Amendment, which even made it to in russia and was was spread all over colonial and which also i think played a very important. In a case from 1735, the singer case where a a printer who was the printer of the first opposition newspaper in the us was attacking the governor. New york was was put on trial for seditious libel and normally would have been an open and shut case. But the jury, drunk on catos principles was decided acquit him even though the common law was pretty clear. And since since that case it basically became almost impossible for colonial governors to to use seditious trials to to convict people, to have juries convict them, because a culture of free speech had been inculcated. And i think that marks a huge difference from from 17 central america, where you have more than 1200 cases of people being prosecuted for speech where here in pennsylvania under william penn himself a former prisoner of conscience, you had prepublication censorship and a council in 1683 presided over by william penn sentenced and anthony to be lashed 30 times for you know, sedition speaking out against the government that william presided over. So a huge shift between the 17th and 18th century in the understanding of the importance of free speech. And that sort of plays into the developments leading up to the revolution and also afterwards. Oh, what a beautiful encapsulation of the history of free speech that phrase drunk on catos letters just sums up how the colonists absorbed the spirit of liberty and you so. Well, set the stage for our conversation. Akhil amar. You were my First Teacher of constitutional law of kindle. My understanding of the constitution, and that of so many americans. And in his virginia for religious freedom. Thomas jefferson offered for reasons for protecting free speech. First, the freedom of speech is an unalienable natural right that comes from god or nature, not government. Second, that free speech is necessary for the discovery and spread of political truth. Third, the free speech is necessary to hold Public Officials to account. And fourth, it is necessary for democratic. Now, not all of those were shared by the all of the founders. And youve taught in your writings that it was really a concern about the collective selfdetermine of the people that was at the centerpiece of so many of the founders. And thats that evolved the course of american history. But i want you to teach our friends how those jeffersonian ideals were or not by the different founders and who were leading voices in the founding on behalf of free speech. So its such a great honor to be back here. And yeah, youre right. Way back when, you know, when i had black hair and you were just a lad, thats when we first met. And and this is an audience, but some men rashly said one thing at the end that should concern us all that look around, there are not enough young people in the room were young back then we have to we have to teach our children to, you know, to to borrow from crosby, stills, nash and young. So heres the thing, because youre right, this is an amazing place, ladies and gentlemen, please look to your right. Okay. So that is the room where it happened. The two things happened and they were different. You know, people can talk. But then are you to walk the walk the of independence drafted. And heres the thing wasnt really put to a vote and then the constitution is drafted there and it is put to a vote and the athenians didnt put the Senate Constitution to a vote. The romans did. And this is astonishing. Thats amazing. And more people got to vote on when america became great. Its not perfect. Slavery and all the rest. But thats a moment in Human History thats astonished. King because an entire freaking continent is to vote on how they and their posterity are going to be governed. More people got to vote. And ever before in Human History. But they also spoke so in that you will actually have here an artifact, a Newspaper Publishing the proposal, the constitution. There is freedom of the press before theres a First Amendment. You see because the press is free to publish this short little thing. Its short not so judges can make stuff up, but so the ordinary people can actually read it. Start to finish, decide with their forward against it. So thats freedom of the press before this First Amendment, they put it to a vote. Two things and then ill shut up. The first thing ordinary people say is like, dude, you forgot the rights to secure these rights. Governments are instituted among men, securing their just powers to extend government. You forgot the right, says george and other people. And they did. And in this process, actually the federal thing, youre right, we goofed. So first thing were going to do, were going to add some amendments. And one of the amendments say the people, people, the people, the people, the people, the right, the people to petition and assemble and the Second Amendment and the fourth and ninth. 10th, because its coming this we the people act of ordained into the establishment. Were putting it to a vote. And ordinary people say, you know, we want rights, including rights to criticize because thats what were right now. Final point, the people who youre allowed to oppose the constitution and youre not voted off the island. If you oppose the declaration of independence, youre almost not heard from again, truth be told, because its a war and youre either for us or against us. And almost no one who opposes the declaration goes on to anything. Truthfully you can oppose the constitution and like George Mason University is named after, you see, and you can be president of the united james monroe Vice President , United StatesElbridge Gary and george clinton. Justice on, the supreme court, samuel chase so we dont just say it, we do it. That bill of rights comes from critics, comes from dissenters, comes bottom up from the people. So to Amazing Things happen. Their declaration, not bad. Constitution even better because more got to vote, got to speak, got to criticize. And they were listened to and not voted off the island. And thats the story of the word the people in this amazing wall that you have up there, beautiful. And you tell the story of. The connection between we the people and the constitution so well in your books and akhil, i just have to tell you what an electric thrill it is to be talking about the First Amendment here with you, our friends gazing at the independence hall. Its just an extra ordinarily sacred space to be talking about free speech. Steve solomon, the man who convened all of us, your magnificent book, revolutionary dissent how the founders generation created the freedom speech, tells the stories of jury trials like the zinger trial, which Jacob Mchangama mentioned and other dissenters like mcdougal, whose were acquitted by jury nullification by liberty loving juries that didnt want to enforce seditious libel laws. Tell us about how those revolutionary dissenters shaped the founders conception. Thank you. Thank you, jeff, very much. So the law there was of england, the common law of england, that was adopted here. It came over atlantic to find freedom of speech, a very limited way. What it what it said was it was a freedom from prior restraint so the government could not shut down the newspaper. It could not license a newspaper. However once you published, you were responsible for what you published. And in terms of what were talking about today, the concern was criticism of the government. And thats what we call seditious libel. Its the criminalization of criticism of the government. That system was here. Now in august of 1765, after the passage of the stamp act, which taxed americans their consent, something happened in boston. They put up, they dedicated a liberty tree and half the town came came out and they speeches all day. There was effigy is hanging of the british Prime Minister and it energized the opposition. This was carried by newspaper ers all throughout the colonies and by one. All these cities put up their own liberty, poles, liberty and debate was energized and it was opposition to british taxes without consent and other things too like general warrants and delivery ministries were just one thing. People started writing pamphlets, rights sides. They wrote poems, they wrote plays. There were all critics sizing britain for their policies. Now, at least technically, all this literature, all this action was was a violation of seditious libel. Jacob made mention of the zenger case. There was 1735. Now go forward the 1760s. The british arent really happy that all this criticism and they start to try to use their seditious libel laws against the colonists. But theyre successful because in order to bring a case, youve got to convince a grand jury to indict. They couldnt do that. Some examples. The boston gazette, most radical paper in america published, you know, samuel adams. They publish all kinds of revolutionary literature. The governor tried four times to get indictments of four times the grand jury said no. Then he went to the General Assembly of massachusetts, tried to get action there. They came back and said no and said the freedom of the press was a bulwark of liberty. You move south to new york city. You mentioned alexander mcdougal, eligible to do was a wealthy merchant. He he circulated a broadside made from the son of liberty. He was identified as as the as the writer. They were unable to to convict him again because of the Popular Resistance to libel. When one more example, because it shows just how desperate the colonial were the rural governors go again a little bit south to virginia. Governor dunmore,. 1775 conflict has already broken out at lexington the concord. He flees williamsburg gets on a man of war british man of war in Chesapeake Bay and he stole to criticize his suffering slings and arrows of outrageous pamphlets and hes very unhappy. Hes like, well, you know, im not going to im not going to be able to indict these these these newspaper publishers. But he has another idea. One morning he sends a dozen of his soldiers on a boat off the man of war into into norfolk. And they go to the of the norfolk intelligence and they take the Printing Press and they take it out to the man of war. Not only do they shut down the norfolk paper, very critical of him, but then they Start Publishing all kinds of propaganda in favor that of the king. So thats the desperation that they had. How could they stop the criticism . It got to the point where the only way to stop it was to take this kind of radical action. Now theres coming out of this period, i have to quote samuel adams, i think was, you know, maybe said it best. Listen to this quote, there is nothing so terrible to tyrants as a free press. Theres nothing so terrible to tyrants as a free press. You can see that today, right . I mean, the settlement talked about authoritarianism thats what authoritarians do. They try to shut down the press. He saw that and. Thats where we are. A steve, you just talked about history of sedition and jacob, i want to ask you about the history of sedition. So as steve and akhil mentioned this acts of 1798 tried to criminalize any criticism of the federalist president , john adams, but not the republican Vice President , thomas jefferson. Jefferson madison objected to the addition acts on grounds of federalism they said that congress couldnt exercise that power, reserving the possibility that the states might. But in their great dissents, the 1920s brandeis and holmes disagreed and came up with the idea that speech should only be banned if its intended to and likely to cause imminent violence and really causing offense against the authorities was not enough. So i want to ask you, whats the history of that principle that you can only restrict speech if its intended to and likely to cause imminent violence . Was it original with holmes and brandeis or their roots back in ancient times . Well, i want to take a step back first. With the sedition act of 1798, because i think that really demonstrates that the sort two conceptions of egalitarian, elitist, free speech survived into two american history. So you see that certainly with the sedition act suddenly federalists are saying, well, the first yes, weve adopted the First Amendment, but basically we have a blackstone in conception of free speech, you know, prior constraints. But if you Say Something against the government, you know, you can you can go to jail. Whereas as madison at least you know if you read his report of 1800 he writes of meticulous detailed argument in of why the First Amendment protects against seditious libel. He specifically distinguishes america from britain where has a much more elitist System America is governed by the people and therefore, you know, seditious libel laws violate that. So thats that thats important. I think those two conception of with us today even in the age of social media we see sort of these two conceptions. But the idea that you know that words should only be punishable when they when they incite to violence or at least when they you know, the two acts is something that you see in tacitus. Its that you see in in spinoza. And of course they are crystallized very clearly in brandenburg, which is a decision which i think a lot of people outside america dont understand, including in my country, my home country, home country, denmark is right now reintroducing a blasphemy ban because people on the far right have been burning korans in public. So now the government is passing a law which says that the improper treatment of religious. Will be punishable with prison of up to two years under a chapter in our criminal law, which punishes treason and threats national. And, you know, it was only 2017 that the Danish Government abolished its blasphemy ban. So i think that principle really is central to the principle that someone also talked about, that if you have serious about defending speech for those that you dont like, you really need to have very, very principles because otherwise human beings are experts at convincing as well as coming up with elaborate narratives. Why free speech is really important, but the communists the abolition lists, the womens rights activists, the gay rights activists are actually undermining free speech or undermining the values on which, you know, democracy depend. And therefore, they have to be criminalized. So i think so. I am a big fan of of of of brandenburg and. I wish that principle was more universally observed. But thats not the world we live in. Yes, we must teach the brandenburg principle as part of our convening today. Speech can only be banned if its intended to and likely to cause imminent violence, not if it might cause a possible act in the future, not if it might offense, not if it could possibly incite people to affiliate with others who might argue, no, it has to be intended to and likely to cause imminent violence. And its the most speech protected principle in the world. And so interesting to learn that it has roots in tacitus and spinoza akhil, help us understand and our exact where it came from in the thoughts of the founders, jacob mentioned madisons report of 1800. Is that the crystallization of the libertarian conception . That speech can only be found if its intended to and likely to cause imminent violence. And then how did it evolve during the civil war and finally make its way to brown, to brandeis and brandenburg . Yeah. Thanks for the civil war, because its important. So heres notes i actually this was not intentional. I get all clothes from downstairs, you know, ties and things like that but