Mentioned in This Episode
The Best Speech in Life is Free Edition An Interview with Professor Geoffrey Stone
Jon Amarilio: Hello everyone, and welcome to CBA’s @theBar, a podcast where young and youngish lawyers have unscripted conversations with our guest about legal news, topics, stories, and whatever else strikes our fancy.
I am your host Jon Amarilio of Taft Stettinius & Hollister, and joining me on the pod today is Professor Geoffrey Stone.
Professor Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago, where he joined the faculty in 1973, after serving as a law clerk to Supreme Court Justice William J. Brennan, Jr. He later served as Dean of the Law School on Provost of the University of Chicago as well.
Professor Stone is the author of many books on constitutional law, too many to name for our purposes here today but he had recently out ‘The Free-Speech Century’ which dropped about six months ago and coming out this fall is ‘Democracy and Equality’, ensuring constitutional vision of the war in court.
Professor Stone was appointed by President Obama to serve on the President’s Review Group of the Intelligence and Communications Technologies Committee, which evaluated the government’s foreign intelligence surveillance programs in the wake of the Snowden’s leaks. He is a Fellow of a number of institutes that again are too many to list for our purposes here today but I assure you they are all very impressive.
Professor Stone has also written amicus briefs for constitutional scholars in a number of Supreme Court cases, including Obergefell, Whole Woman’s Heath, Lawrence v. Texas, U.S. v. Windsor, U.S. v. Stevens, and Rasul v. Bush so about half of the major constitutional cases in the last decade or so.
He was also one of the lawyers who represented President Bill Clinton in the Supreme Court in Clinton v. Jones case. Geoff, welcome to @theBar.
Geoffrey R. Stone: Thank you. Delighted to be here.
Jon Amarilio: I am delighted to have you here. So you are a First Amendment expert.
Geoffrey R. Stone: I hope so.
Jon Amarilio: And this is a really interesting time to be a First Amendment expert in this country, perhaps more interesting than it has been for decades. One of the topics that I know is constantly in the news is the intersection of free speech censorship and social media.
We see cases about government blocking, popping up one that comes to mind is Knight v. Trump where I believe President Trump was sued because he was blocking critics from his Twitter page. Where does all of this go right now? I know that there was a ruling in that case. In particular, I think the Southern District of New York, district court judge said that that was unconstitutional impermissible viewpoint discrimination.
I don’t think that’s the only case, if I remember correctly, there was a Maryland governor who was sued for blocking critics from his Facebook page. But we have these ostensibly private pages but they’re available to the public, to be viewed by the public and they’re owned “by public figures”. Where’s all this leading? Where do we draw the line?
Geoffrey R. Stone: Well there are a lot of issues that exist today about social media and how it affects the First Amendment. This is one of them. And the question essentially raised in these cases is when a public official uses let’s say Twitter and invites millions upon millions of people to participate on his Twitter page, and then decides to exclude particular speakers because he doesn’t like what they’re saying is that a government action that constitutes a violation of the First Amendment rights of the people who are excluded.
And it’s complicated because in many ways the president can act as a private citizen and can choose to publish articles or essays in some of these papers and not others that doesn’t violate the First Amendment, then choose to give speeches, it’s for some organizations and not others that doesn’t violate the First Amendment.
So the question is when does a public official go from being a private individual in that capacity, where he has the ability and the First Amendment right to pick and choose what he’s going to say, to whom he’s going to say it, with whom he’s going to speak, to actually becoming a government action in which case the First Amendment does apply.
And the issue in this case is whether by expanding the audience in the way that social media enables, the president can effectively still consider that private speech or whether at that point he is actually functioning as the public official in a public space and it becomes the equivalent of a public forum.
Jon Amarilio: So what are the considerations when we’re considering the answer to that?
Geoffrey R. Stone: I think basically the considerations are whether the public official has invited basically everyone to participate and then excluded a small number rather than when they are inviting a selective group of people.
So obviously we have to stay with the president for example. If the president invites some people to come to the White House to hear a speech, he’s being very selective in who he invites. And in that capacity, he’s seen primarily as acting as either a private official or as a public official in a reasonable way given the constraints under which he is operating.
But when he does something like have a Twitter feed and let everyone else be on it, tens of millions of people and then excludes a handful then the notion is, he’s acting in a much more discriminatory manner and that does become a kind of public action that implicates the First Amendment.
So that seems to be the critical dividing line whether you’re simply inviting us, a small number of people to participate where you have to be selective realistically. There’s only room for so many people in the White House or if you’re going to do a book signing, you can’t let everybody in the world come in to the book signing, but if you’re engaged in what essentially is a public event, then you cannot exclude private individuals from participating.
So it means that the President had an inaugural ceremony which was open to everyone but what told people.
Jon Amarilio: I think it’s about how many showed up for his swearing-in ceremony.
Geoffrey R. Stone: Right. So that I think the critical question that arises in these cases.
Jon Amarilio: So the mechanics of the social media can actually play a large part of what the answer to that question is, right. Like for Twitter, you can follow anyone whereas Facebook, you have the option of setting up a private page that you have to allow people to join or you could have a public facing page that anyone can view.
Geoffrey R. Stone: Exactly. And if it’s a private page, then you only allow your friends to view it and you have a reasonably limited number of friends in the — maybe even in the millions. Then you could exclude lots of other people. But if you admit everyone and then exclude only a handful, then it looks much more like you’re creating a public forum and excluding people from it on the basis of their messages and that’s not constitutionally permissible.
Jon Amarilio: So that case, the Knight case is on appeal before the Second Circuit right now. Do you think that’s where the court is going to come down?
Geoffrey R. Stone: I think it’s probably where the court is going to come down. It is a novel question and so it’s not written in stone that that’s how they’ll decide the case. I should say by the way that I signed one of the briefs in the cases. So I was at least part of —
Jon Amarilio: We’ve got the right guy though.
Geoffrey R. Stone: Yeah. Well I didn’t write the brief, I just signed it that was one of the constitutional law professors.
Jon Amarilio: So let’s move on to private censorship Geoff. Social media companies in particular have been pressured by governments and advocacy groups of late to censor the content that’s available on their platforms more and more. Conservatives recently have been in the news because they’ve been up in arms about Facebook for example and Twitter I believe blocking Alex Jones somewhat, not somewhat, an absolutely crazed conspiracy theorist.
I think President Trump recently called for an investigation of Google because he was peddling the idea that Google was suppressing news that was favorable to him. Are the same considerations in play when we’re talking about private companies censoring?
Geoffrey R. Stone: So from a First Amendment standpoint, no. Private companies, whether it’s Google or Facebook or whatever, are not the government and therefore like the New York Times or the Los Angeles Times or the Washington Post, they are free to decide what they will allow or not allow in their private forum. So the First Amendment is not implicated by those decisions.
The more complicated question is whether government should intervene and either require or prohibit certain types of censorship in this private forum. When social media came into existence, the government decided to treat them very differently from say newspapers or radio shows or magazines. They are liable for what they allow private individuals to publish.
Jon Amarilio: Traditional medias.
Geoffrey R. Stone: Yeah, right in their venues. So the New York Times publishes an op-ed written by a certain person and the op-ed includes defamatory statements that are otherwise actionable, then the New York Times is liable for that because they permitted it to be put in their newspaper and they made a choice to allow that.
Because of the nature of social media, Congress enacted legislation when it came into existence that basically said that social media platforms like Facebook are not liable for what individuals put on Facebook. The idea was to allow the private individuals to put up whatever messages they wanted to be put up without having the platforms be intermediary, so it pick and choose or be required by law to pick and choose what would be included.
Jon Amarilio: So they’re just treating it as a public square.
Geoffrey R. Stone: Right. But the assumption was that they wouldn’t actually exercise any kind of censorship and now it’s happening increasingly is partly due to public pressure and partly due to foreign law, which does not give the same immunity to these entities. They are increasingly excluding from their platforms, a speech that they find in various ways to be inappropriate whether it’s seen as hate speech or libelous or sexually inappropriate or whatever.
And the more they do that, the more they begin to look like a newspaper or magazine and the more it becomes imaginable that the government would change the underlying law and make them legally responsible for whatever they permit to be on their platforms.
Jon Amarilio: So that’s fascinating. Let’s pick that apart a little bit. When you were talking about foreign governments pressuring these companies to introduce a level of censorship on to their platforms, I assume you’re probably talking about like the EU, right?
Geoffrey R. Stone: Well, any country. I mean basically a platform like Facebook is international in nature.
Jon Amarilio: Right.
Geoffrey R. Stone: And so although we may permit certain types of speech without it being legal, illegal, other countries change. So hate speech is a good example, so hate speech is not illegal in the United States, First Amendment protects it. But in many other countries in the world, hate speech is illegal and they do not give immunity to the platforms.
And so Facebook allows hate speech in Germany, they can be penalized for that, so they’re required to exclude that in Germany, but the nature of social media is that it’s essentially one unitary platform and so, it’s very hard to exclude in one country without also excluding another countries.
Jon Amarilio: Because they’re developing algorithms that search for this kind of content and excluding based on those algorithms and they can’t set up those algorithms on a nation-to-nation basis, right?
Geoffrey R. Stone: At least at the moment they apparently can’t do that very effectively.
Jon Amarilio: Right. So does it become, I mean, I hate to use the term but from a sort of traditional American First Amendment perspective vote a race to the bottom?
Geoffrey R. Stone: In some sense, yes. I mean, to the extent that Facebook does not want to be held responsible for including material on its platform that is illegal in any country and if that determines then what can be put on a Facebook anywhere in the world then that’s exactly a good analogy, it’s a race to the bottom. And the challenge for Facebook is to try to figure out how to accommodate the rules in different countries without that becoming universal and technologically, that’s a real challenge.
Jon Amarilio: So, you got into this a little bit, but where are we going with it, if companies are increasingly censoring themselves or rather the people who are posting on their social media pages in order to comply with these laws and they’re increasingly becoming like traditional media in that sense. Do you think that Congress will step in and if so in what capacity? How do you think they’re going to react?
Geoffrey R. Stone: Well, at one point one could imagine that Congress would eliminate the immunity that social media platforms have from liability for allowing material to be included in the platform that violates defamation law or obscenity law or any other restriction on free speech, threats and so on, and that would put great pressure on these platforms to begin screening everything the same way a newspaper does.
Jon Amarilio: Right.
Geoffrey R. Stone: And that would be very costly for them to do that, and it’s not clear the technology exists yet or the manpower exists yet to be able to do that.
Jon Amarilio: I was just thinking when you mentioned it that sounds like the end of social media to me.
Geoffrey R. Stone: Well, it would have a dramatic impact on the way in which social media currently functions. In terms of giving individuals the kind of freedom that they now have to post whatever they like. And I don’t think anybody wants to go there, but it is the only way to realistically solve the dilemma of people posting things that are illegal or otherwise thought to be undesirable and Facebook worries about it not just as a legal matter, they worry about it as a public relations matter as well.
They don’t want people to stop using their platform because they are offended by the kind of material that Facebook allows. So it does pose a real challenge as we go forward and it’s not clear what the resolution will be.
Jon Amarilio: You mentioned earlier that we need state action in order for the First Amendment to be implicated, is that 100% settled? I’m thinking back to my law school days and you teach at a law school so you know much, much better than I do, but I think was there was a case is an Alabama case.
Geoffrey R. Stone: Marsh v. Alabama.
Jon Amarilio: Marsh v. Alabama, right. Okay, where a company prohibited Jehovah’s Witnesses I think from peddling religious pamphlets on company-owned streets, right. And the Supreme Court said the First Amendment was implicated there even though there was no state action.
Geoffrey R. Stone: So it was a company town in which the employees of the company lived in housing that had been constructed and owned by the company, and the court held in that case in the 1940s that it was the equivalent of a public downtown area and that because the company had effectively created the equivalent of a public forum that the First Amendment applied.
Now the Supreme Court has not gone anywhere with that in any sense and they does not extend it to other facilities and it’s unlikely, not impossible, but unlikely that the court will go back in that direction. It is pretty well adhere to the principle that the Constitution only applies to those activities that are run by the government itself. But Marsh is a good example of the door the court opened tentatively, but then decided to close and so far hasn’t gone back there again.
Jon Amarilio: But if the logic was that this company had essentially created a public forum, it sounds very similar to what social media companies are doing or at least the way Congress has viewed them thus far.
Geoffrey R. Stone: Right. And some states for example have held under state law that a shopping center, for example, can be required to allow speech in the way that a public downtown area would be required to do so under state law. So the State of California has held that shopping centers can be required to allow people to distribute leaflets.
And the Supreme Court has said that’s constitutional for the state to require that, but that’s not so not the First Amendment requiring it, it’s the same requirement under state law and the Supreme Court saying it was constitutional.
Jon Amarilio: So that’s actually a perfect bridge to another question I had which was our current constitutional standards up to the challenge that social media presents. In the past, if you wanted to spread hate speech you had to do it in a fairly limited way, it was person-to-person interactions perhaps publishing something in a newspaper but the spread of it was slow.
Now I’m thinking back to an article I read in The New York Times a few weeks ago about how hate groups are proliferating in the United States, and that’s largely driven by the ease with which they can organize and spread hateful messages and misinformation on the Internet. Do you think that our current constitutional jurisprudence is, as I said, before up to the challenge or do you think that we need to re-examine some of the doctrines?
Geoffrey R. Stone: Well, there are two ways of looking at it. One of them is to say that social media is a boon for the principle of free speech because it enables individuals to convey their views in a way that enables them to reach a much larger audience and everywhere it was possible and that this is an important positive development in terms of having a robust marketplace of ideas.
Jon Amarilio: It sounds like Brandeis, we need more speech, not less.
Geoffrey R. Stone: Right. And it enables people to reach more people and for individuals to hear more diverse views than ever would’ve heard before and from that perspective, this is a major step forward in terms of having a system of free expression.
On the other hand, it obviously allows what many people would regard as bad speech that could be speech that’s not protected by the First Amendment like say defamation of an individual to be spread much more broadly and that creates challenges that are in some ways more problematic than would have been the case under traditional means of communication.
And it also raises the question whether the speech that is held to be protected by the First Amendment, it becomes more harmful and more dangerous in a way that may call into question whether it is sensible to hold that speech to be protected.
Jon Amarilio: I think that’s a better way of framing my question.
Geoffrey R. Stone: Right. But hate speech is the example that may be most prevalent or speech that advocates unlawful conduct or terrorist speech are all examples of situations where under ordinary means of communication, the court has held that they either can’t be restricted at all or they can only be restricted if there’s a clear and present danger of immediate grave harm.
But the ability to communicate those views so much more broadly on social media may mean that their capacity to cause a range of different harms is greater than when ever would have imagined 50 years ago. And therefore the court has to step back and ask well, maybe in light of these changes, we have to take greater account of the need to be able to restrict the speech because its capacity to do harm is much greater than we ever imagined was possible in the past.
So it’s conceivable that this will cause the court even properly to re-evaluate some of these questions as time goes on. But the initial response to this, although it may seem somewhat anomalous is that at least in the realm of constitutionally protected speech, more speech is better. And therefore to the extent, we’re able to empower people who previously could only reach a dozen other people with their views who now can reach the thousands, that’s great, that facilitates a broader, more robust marketplace of ideas.
So you have both perspectives arise here. It is a more effective means of communication which in principle is attractive but it also means that speech can be more harmful in a greater degree as well as beneficial, and the question is how you accommodate those two things.
Jon Amarilio: Where do you think we’re headed?
Geoffrey R. Stone: I think that there will be a good deal of skepticism about allowing restrictions on speech that otherwise is protected, because of the distrust of allowing government to decide what speech is to be censored and what speech is not to be censored.
So to the extent an entity like Facebook decides to pick and choose, they are a private entity, and they’re technically allowed to do that. To the extent the government says speech that previously was protected but now is going to be subject to criminal prosecution that raises a more difficult question because it goes back to the issue of do we trust the government to have that power. So consider false speech which is a great example, right.
In general, the Supreme Court has held that false speech even knowingly false speech is protected by the First Amendment unless it expressly defames a specific individual or unless it is perjury or elected fraud, but if it’s general false speech in public discourse, the court has basically said that the government cannot intervene and punish anyone for engaging in that speech.
Now that may seem weird, because there’s no value in knowingly false speech, but what the court is understood is to give the government the power to decide what speech is true and what speech is false is to give extraordinary power to the government to be selective in choosing which speech to punish and which speech not to punish.
Jon Amarilio: Right.
Geoffrey R. Stone: It’s easy to imagine that a political administration will choose to punish speech that is false because they don’t like the messages communicated and that they will not punish speech that’s false because it criticizes their opponents.
And to give the government that kind of power to pick and choose which false speech to punish is to risk grievous damage to the marketplace of ideas.
And so for that reason, the court has basically said that false speech should be corrected in the marketplace of ideas with counter speech and we know that’s not perfect, but the notion is that’s better than giving the government the power to pick and choose which false statements to punish.
The problem we face now is that the capacity of individuals and organizations to promulgate false speech is far greater than was ever possible historically and the damage it can do particularly in a social media environment, in which people become so polarized that they only hear certain views, and not others, and the capacity of false speech to dominate their thinking and their understanding of the world becomes far greater than was ever possible before.
Jon Amarilio: So the example that obviously comes to mind and it’s the front of everyone’s mind these days is Russian interference or Russian use of Facebook to propagate false ideas during the election to influence the election. I mean I agree with everything you just said but then you see an example like that and it’s frightening.
Geoffrey R. Stone: Well foreign intervention has always been subject to greater restrictions than speech by Americans citizens, foreign government interference in the elections.
And so I would imagine a court would uphold the law that prohibited foreign countries from intervening in political discourse in the United States with respect to elections without identifying who they were and I think that’s something that the court would uphold.
Jon Amarilio: And with that piece of soothing wisdom, it’s a good time for us to take a break.
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Jon Amarilio: And we’re back. So Geoff, it occurs to me that another topic that is highly related to what we’ve been talking about today and is also at the forefront of a lot of people’s minds is the issue of free speech on campus. It’s a highly politically charged topic these days with the right accusing the left of censoring free speech and the left accusing the right of propagating hateful and harmful speech. Where do you see this debate going?
Geoffrey R. Stone: Well, I think the first question that universities have to face is why is it happening? Traditionally students have been supportive of free speech historically on a whole range of issues over time and suddenly we hear students demanding that they be protected from free speech they find offensive and that the universities step in and prohibit speech that they find to be problematic.
And so one question is why is this happening now and I think there are several possible explanations for this. One of them is the observation that this generation of students more than their predecessors has been raised by parents who have tended to shield them and to protect them from frustration and from fear in ways that their predecessors were not protected. And therefore, they get to college without a sense of resilience and a sense of experience at dealing with conflict and challenge and difficulty, that makes coping with the challenges posed by offensive to them free speech more difficult than it has been for their predecessors.
Jon Amarilio: So thin-skinned Millennials?
Geoffrey R. Stone: Yeah, I mean that doesn’t to say everybody that generation is like that, but I don’t think there’s any serious doubt that some significant percentage of them are a bit more like that.
Another possible explanation is that particularly those who have been most disadvantaged by this speech, racial minorities, religious minorities and so on, have been much less represented in higher education in the past. And those individuals in the past may have felt themselves to be uncomfortable and confronted with speech and action that they found offensive and alienating and yet tended not to make an issue of it.
They did not want to be seen as whiners and they didn’t feel they had the critical mass to enable them to effectively raise these issues.
Now with much larger numbers of diverse students in universities, I think they feel more empowered to raise some of these issues, even if they did exist in the past but they didn’t feel comfortable challenging them then.
And another contributing factor in this may well be the advent of social media because in the past, most college students had not experienced a lot of exposure to what would be regarded as hateful speech. Mainstream media would never broadcast or print it, they may have encountered it occasionally, but for the most part it wasn’t very common.
But with social media, it’s become far more common and I think for that reason students are much more attuned to both the pain they experience by being exposed to it so much more frequently and also to the pain that their classmates experience when they are exposed to it.
So I think that has made students much more concerned about this type of expression and the Trump era of course, adds to that.
Jon Amarilio: Are there kind of — I don’t know if the correct term would be countervailing or contradictory forces there, but on the one hand, you described Millennials who are somewhat thin-skinned because they were Mollycoddled for lack of a better term when they were growing up, but on the other hand, you also just said that they’ve been exposed through social media. It’s a much more frequent hate speech which you would think might cause them to develop a thicker skin because they have been exposed to it. So can you reconcile those two thoughts for me, I probably missed it?
Geoffrey R. Stone: I think in part it depends on whether your group is the one that is the target of the speech. For those who are the target of the speech I think it is in some ways more difficult to cope with it, because of stage social media but for those who aren’t the target of it in some ways seeing that empowers them to spend time addressing the problem.
Jon Amarilio: I see.
Geoffrey R. Stone: So the challenge for universities is to basically educate those students into understanding that the central mission of a university is to create an environment in which competing ideas, however offensive they might be to some members of the community, can be heard and can be addressed and can be responded to on the merits and that university should not be in the position of deciding which ideas are good, which ideas are bad and part of the reason for that is historical record suggests that universities like governments don’t do that very well.
Jon Amarilio: Right.
Geoffrey R. Stone: And if we look back over time what you see is universities too often yielded to the pressure to silence speech whether it was communist speech during the McCarthy era or anti-war speech during Vietnam or during World War I or socially liberal speech about issues like slavery or women’s rights or gay rights, different times in our history.
And I think they have learned just as we have learned as a nation that we cannot trust people in positions of authority to make judgments about what ideas are right or wrong because even though, they may be perfectly convinced that they are right, we know from experience that people who thought they were right later we’ve come to conclude were wrong.
So people thought that the earth was the center of the universe or thought that slavery was proper or that woman’s place was in the home or gay should not have any rights or African-Americans should be segregated, all of those views became over time because we were able to discuss them and address them, we learned were wrong.
And we, as society, have changed our minds about them. And therefore, we have to be extremely reluctant to assume that the beliefs that we hold today are right and that in the future, people might come to a very different conclusion that they’re allowed to address them and in fact they may be right and we may be wrong.
So universities have to be central I think to adhering to those views and educating students both to understanding that principle and also to learning how to cope with ideas that they find offensive and wrongheaded and loathsome, not by censorship but by responding and by addressing those issues on the merits is the critical skill they have to have.
And the other thing is that universities are dominated in general by a community that is sympathetic to those students’ views, but the real world does not.
Jon Amarilio: Right.
Geoffrey R. Stone: And part of the responsibility of universities is to train students to be effective citizens of the real world and in the real world, they’re not going to be sheltered from that kind of speech.
Jon Amarilio: Right.
Geoffrey R. Stone: They are going to have to learn how to deal with it effectively and to respond to it on the merits and to win those arguments and universities have the responsibility of training them to do that.
Jon Amarilio: How are they doing?
Geoffrey R. Stone: I think it’s pretty new at the moment. I mean the truth is these are not issues universities faced in this way until the last several years. And so universities have attempted to both articulate a set of standards and principles to educate students about those values and they’ve attempted in orientation programs or otherwise to give students the skills of addressing these questions, but it’s still a new challenge, and I think the truth is universities are at the beginning of the process of learning how to address this.
One of the interesting phenomena is that the number of these instances this year is far lower than there’s been in prior years. And in fact, this year it’s hard to think of a single instance across the nation that has gotten the attention that a dozen or 15 or 20 instances received in the last two or three years.
Jon Amarilio: That’s a good point.
Geoffrey R. Stone: And so an interesting question is why is that so? And I think there are probably several reasons that explain that. One of them is that the students who invited these provocateurs, people like Richard Spencer and Milo Yiannopoulos and Ann Coulter paid a huge price for doing so.
I mean they were demonized by their fellow students on social media and this will affect their lives for a long time to come. They will be seen by major portions of the community as idiots and as people of no moral values, and I think that their successors, a year or two or three years younger to them at college, have seen what’s happened to them and have probably learned the lesson, is it really worth it for me to replicate that in my own life.
Jon Amarilio: Right.
Geoffrey R. Stone: And my guess is, this is probably having an effect and they’re more reluctant to invite these speakers, and this is both good and bad. It’s bad because this is a classic example of chilling effect. If they in fact have a right to invite these speakers and they’re not exercising that right, because they’re afraid of being penalized by the reactions of others, that’s exactly one of the dangers that the First Amendment and the Principle of Free Speech is designed to protect against.
On the other hand, if it’s true that inviting these speakers is really never meant to generate real thoughtful debate but only to be provocateurs to create chaos, then maybe it’s not such a bad thing that they’re not doing it.
The other more positive possible explanation here is that those students who were most disruptive in the past and the ones who engaged in various kinds of violence and disruption in part in order to get visibility and celebrity for themselves and for their cause have recognized that that’s a terrible strategy; that what they were doing is actually empowering the speakers whose views they despised, and turning them into famous people and getting them on cable news shows and enabling them to sell books and that the right response to this in fact, was not to engage in disruptive behavior, not to engage in violence, but to turn the other way.
And they have a protest, a peaceful protest objecting to their presence but not turn it into a news story, then 20 people come to hear Milo Yiannopoulos, nobody gives a damn, nobody knows that you’re even there that takes away the incentive for them to come to these campuses and they win by making it go away by not having this kind of a controversy.
So I don’t know to what extent either of those two factors has explained what we’ve seen this year. But I suspect it’s what’s going to happen going forward and that much of the immediate controversy we’re now talking about is not going to continue.
Jon Amarilio: Let’s switch over to one of the other thousand pound gorillas in the room, we are getting closer to campaign season, I suppose, we’re always in campaign season these days, but the Democratic field for the Presidency is starting to shape up a little bit, and one of the topics that’s coming back into the news is campaign financing, campaign finance reform, and the intersection that has with First Amendment issues, particularly the rights of corporations after Citizens United donate unlimited amounts of money to campaigns.
Where do you come down on that?
Geoffrey R. Stone: So, traditionally it was understood that government could regulate campaigns and the use of money in campaigns. The Supreme Court first addressed the issue recently in Buckley v. Valeo and in the early 70s, and at that time, the justices held that individuals and corporations could be limited in the amounts they could contribute directly to a candidate, but were free to spend as much as they wanted.
And what was interesting about that decision is that there were both liberal and conservative justices on both sides of the question as they tried to work it through. They did not see it as a particularly ideological partisan question at that time.
And what’s changed in the 40 years basically since then, is that the role of money in the political process has grown enormously and the impact of money in the political process has grown enormously, and probably, this is due to the advent of cable, the ability to spend far more money on social media and on cable than was ever realistically possible back in the 1960s.
I mean money mattered then but it was not nearly as dominant as it is today. And what we’ve seen happen over the years is a profound shift in the impact of money on partisan politics, both in the sense of the need for money to effectively have a campaign in order to get visibility and to have publicity among citizens, also in the sense in which candidates find the need to accede to the desires and demands of their supporters in order to get them to give money.
And that corrupts in a very direct way the nature of the political process and also the amount of time that political candidates and elected officials have to spend raising money and catering to their donors has taken a lot of the time and energy away from they’re actually performing their functions.
Jon Amarilio: Right.
Geoffrey R. Stone: The consequence of this is that the role of money in politics has now had I think an increasingly devastating effect in terms of both enabling certain candidates with more resources to increase substantially the probability of winning and also corrupting their independence as people who are supposed to represent the people, rather than the donors.
And these are really I think dangerous impacts on public discourse, and what’s happened in the Supreme Court is we’ve now come to see a pretty sharp partisan divide in the court on the issue of campaign finance.
The democratically elected justices or the more liberally inclined justices even if were appointed by Republican presidents like John Paul Stevens or David Souter have tended to be much more open to regulations of campaign spending both by corporations and by wealthy individuals.
And the Republican partisan justices have tended to become much more extreme in their invocation of the First Amendment restricting these regulations. And we now have on the Supreme Court a very partisan division on these issues where the Republican appointed justices invalidate virtually every restriction on campaign finance and the democratically appointed justices tend to be inclined to uphold them.
And one way of looking at that is that the use of vast amounts of money has clearly predominantly benefited Republicans. And by the way, I should say it’s less from corporations interestingly than it is from wealthy individuals. Corporations do give substantial contributions in order to further their ends, but corporations generally tend not to want to be identified as ideological.
Jon Amarilio: Right, there’s some accountability there?
Geoffrey R. Stone: Right, and so they tend to be more cautious about the extent they are partisan in their support of particular candidates. But the billionaires have now taken over a lot of this process and a relative handful of extremely wealthy individuals are giving a very substantial portion of all the money that is being made available to political candidates and that gives them an extraordinary amount of ability to dictate what those candidates will do and what they won’t do.
Jon Amarilio: So, one of the solutions that’s been proposed in the Wake of Citizens United is unlimited disclosure. You just completely open up all the campaigns books and let’s see who’s doing the donating. And that sort of feeds into what we were talking about before I suppose in terms of the solution being more speech, not more restricted speech, if we agree that money is speech, as a assumption underlying the debate I suppose.
But if that processes as you say being driven by billionaires, they are not going to care. I would suspect about those kind of disclosure laws because they’re going to be out, loud and proud about their donations as so many of them are.
Geoffrey R. Stone: Well, part of the hope of the disclosure argument is that the public will care, because they will now be able to be informed of how much money X, Y, or Z gave to a particular candidate. But I think we’re past the point where disclosure laws A, are going to be enacted in the Federal Government, because Republican politicians will never support that. And B, even if they are, it’s not clear the Supreme Court would uphold it given the current makeup of the court.
So I think what we face a really severe dilemma.
Jon Amarilio: Why wouldn’t the Supreme Court support disclosure laws? If they’re equating money to speech, right, and speech if you go back to the founders and take an originalist viewpoint of everything, speech was standing up in the public square on a soapbox and telling the public what you saw, right. The public could see you, they knew who you were and there was some accountability there and how in my head as I am thinking about is something about Thomas Jefferson and 00:39:13 and all that kind of thing.
So I suppose I don’t know my point a little bit but before when we were talking about the vision of the founders, I suppose, there was that accountability. So and the Disclosure Laws would bring that kind of accountability back into the mix. So what would the ideological or legal grounds be for the Supreme Court opposing those kinds of laws?
Geoffrey R. Stone: The legal argument would be that disclosure chills free speech. So a long time ago the court held that there is a First Amendment right for example to distribute anonymous leaflets without identifying them. The concern is Chilling Effect, and the concern is that individuals will be reluctant to state their positions on certain issues even if they believe them to be true because they will be in one way or another demonized, if they do so.
And so the court has held that there is a constitutional right to anonymous speech, whether it applies to money at a high level, it shouldn’t be the case in my view. But again, I think this is a — this has now become a partisan issue, on the campaign finance issue, once Justice Alito replaced justice O’Connor, the five Republican appointed justices have struck down every regulation of campaign finance that has reached the Supreme Court and without exception.
And I think this is very damning to the court as an institution. I think that although there are real reasons for being concerned about campaign finance regulations, there are concerns in some circumstances about Chilling Effect, there are concerns about government motivation. If the government is adopting restrictions on campaign finance, because the elected officials who are trying to manipulate, who can spend money and who can’t spend money because the limitations benefit their party, that’s something courts have to be concerned about.
So there are legitimate issues about the regulations in this context, but at this point I think that the role of money has gotten so extreme and so out of hand that the kind of regulations that the court has invalidated in recent years really make a lot of sense and should have been upheld.
And the difficulty now as its had a completely destroying effect on our political process, and you didn’t used to talk in the newspapers, didn’t used to talk about the coverage based on who has raised how much money, and now that’s one of the first things they talk about.
Jon Amarilio: Right, that’s how you know where there’s someone as a serious contender?
Geoffrey R. Stone: Exactly, and that’s completely bizarre, that didn’t used to be the case at all. So I think this is an area where the court has failed completely, ironically to allow regulations on speech. I mean traditionally you look to the court to hold on constitutional restrictions on speech, because you don’t trust the government to do that and that is a good presumption.
But in this context what we’ve seen is that these restrictions are designed themselves to create predictable outcomes of the political process, that are designed to manipulate that process in ways that are directly incompatible with a real democracy. So we’ve got a serious problem.
Jon Amarilio: Any hope insight?
Geoffrey R. Stone: Not we’ve got to change in the makeup of the court in my opinion and that’s not likely for a while.
Jon Amarilio: For a long time.
Geoffrey R. Stone: Yeah.
Jon Amarilio: Yeah, and that depressing point of wisdom is probably a good place for us to take our second break.
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Jon Amarilio: And we’re back. So Geoff, we’re going to end the episode on a slightly lighter note than the way we ended our last segment, playing Stranger Than Legal Fiction. The rules are really simple. I’ve done a little bit of research and found a law that is strange and still in the books but probably shouldn’t be, and then I had just made another one up on my walk over here this morning and your job is to distinguish strange legal fact from fiction. Are you ready to play?
Geoffrey R. Stone: I am ready.
Jon Amarilio: Okay, so option number one, it is illegal in Colorado.
Geoffrey R. Stone: Is it a legal?
Jon Amarilio: Illegal in Colorado, for one person to have or gather more than 20 Helium-filled balloons at any one time, so you can’t hold more than 20 Helium-filled balloons, that’s option number one.
Geoffrey R. Stone: Okay.
Jon Amarilio: Option number two, it is illegal in Idaho, expressly illegal I should say in Idaho to commit an act of Cannibalism, what do you think?
Geoffrey R. Stone: I would guess that the Idaho Law is the real law.
Jon Amarilio: Why is that?
Geoffrey R. Stone: Well, because in most states have laws against Cannibalism.
Jon Amarilio: Most states don’t.
Geoffrey R. Stone: Really?
Jon Amarilio: Yeah.
Geoffrey R. Stone: You sure?
Jon Amarilio: I am.
Geoffrey R. Stone: That’s fascinating. I would have thought they did, but in any event, that seems to be the more logical law. Now the Helium Law is so crazy, it’s probably the one that’s real, so I’m going to go with that.
Jon Amarilio: Your first instinct was correct.
Geoffrey R. Stone: Oh damn.
Jon Amarilio: Yeah, well, I was just — you know as I was reading that out I was thinking, where was the Donner Party, was that Idaho?
Geoffrey R. Stone: I don’t remember.
Jon Amarilio: What state was that, Utah, it was around there.
Geoffrey R. Stone: It was Utah, yeah.
Jon Amarilio: Utah, okay, maybe that could be the origin.
Geoffrey R. Stone: You’re right, cannibalism is not illegal in most states?
Jon Amarilio: From what I could see, no, it wasn’t. They approached it through other laws and health codes, but there’s no statutes, statewide statute on the books banning cannibalism in most states.
Geoffrey R. Stone: That’s interesting, I would have guessed otherwise.
Jon Amarilio: It seems like it should be.
Geoffrey R. Stone: Yes.
Jon Amarilio: But yeah, I don’t know maybe there is First Amendment issues there with religious practice.
Geoffrey R. Stone: Right.
Jon Amarilio: Yes, and that’s going to be our show for today I want to thank our guest Professor Geoffrey Stone for a fascinating discussion.
I also want to thank everyone here at the CBA that makes this machine run, including our executive producer Jen Byrne, Ricardo Islas on sound, and everyone at the Legal Talk Network.
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