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Eugene Volokh

Eugene Volokh is from the UCLA School of Law. Professor Volokh teaches free speech law, tort law, religious freedom...

Robert Bertsche

Attorney Robert A. Bertsche is partner with the firm, Prince Lobel Tye, LLP. Rob is devoted to protecting and...

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Bob Ambrogi

Bob Ambrogi is the only person to have held top editorial positions at both National Law Journal and Lawyers Weekly...

J. Craig Williams

J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...

For the past year, the First Amendment, censorship, and hate speech have been at the forefront of the news cycle. From President Trump blocking users on Twitter, to violence at rallies or on college campuses, protections of our First Amendment have been tested. Also, with the rise in popularity of social media, it has become complicated when deciphering what is actually a First Amendment right and what is not.

On Lawyer 2 Lawyer, hosts Bob Ambrogi and Craig Williams join First Amendment attorney Robert Bertsche, partner with the firm Prince Lobel Tye, LLP, and Eugene Volokh, founder and co-author of the popular blog, The Volokh Conspiracy, as they define First Amendment, and how it relates to censorship and hate speech. Together, they differentiate and clarify government censorship versus public/private censorship, explore censorship policies on social media platforms, and discuss recent news items related to this topic.

Attorney Robert A. Bertsche is partner with the firm, Prince Lobel Tye, LLP. Rob is devoted to protecting and strengthening his clients’ ability to communicate their content on a wide variety of platforms, including digital, interactive, print, electronic, and social media.

Professor Eugene Volokh teaches free speech law, tort law, religious freedom law, church-state relations law, and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. He is also founder and co-author of the popular blog, The Volokh Conspiracy.

Special thanks to our sponsors, Clio and Litera.

Transcript

Lawyer 2 Lawyer

Law News and Legal Topics

First Amendment’s Clash with Censorship and Hate Speech

09/02/2017

[Music]

Robert A. Bertsche: I am concerned as I said earlier about the way that private control over speech can limit our ability to communicate with each other, and that may be one of the free speech problems that we face in the 21st Century.

Eugene Volokh: Now of course people are free to criticize the First Amendment and argue for reviewing the First Amendment or limiting it and the like that too is constitutionally protected speech, but I do think that there is a good deal of such speech out there, and I think it’s important to argue against it and it’s important to keep that from prevailing.

[Music]

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

[Music]

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog named May it Please the Court.

Bob Ambrogi: And this is Bob Ambrogi coming to you from outside of Boston, Massachusetts where I write a blog called LawSites and also co-host another Legal Talk Network program called Law Technology Now along with Monica Bay.

J. Craig Williams: And Bob, before we introduce today’s topics, we’d like to thank our sponsor Clio and Litéra.

Clio is cloud-based practice management software, it makes it easy to manage your law firm from intake to invoice. You can try it for free at  HYPERLINK “http://www.clio.com/”clio.com.

And Litéra, our other sponsor, Litéra is the authority on document creation, collaboration and control, increase your productivity, collaborate securely, and ensure protection of your vital information. You can learn more at  HYPERLINK “http://www.litera.com/”litera.com.

Bob Ambrogi: And Craig, today we’re going to be talking about the contours of speech censorship in the First Amendment, and hopefully, not too many of our listeners need to be reminded what the First Amendment says, but we thought we’d just start off by reading what it says, which is that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.

J. Craig Williams: Well, for the past year, Bob, the First Amendment and censorship has been at the forefront of the new cycle from President Trump blocking users on Twitter to public colleges preventing controversial guests from speaking at rallies or on campus from police excluding listeners to speakers and protections of our First Amendment had been tested. Also with a rise of popularity of social media, it’s become complicated when deciphering what is actually First Amendment speech and what is not.

Bob Ambrogi: So today on Lawyer to Lawyer we are going to take a look at some of these issues, and discuss some recent news items that have sparked some First Amendment and censorship questions. To help us do that we have two guests joining us today.

First of all, let me introduce attorney Robert A. Bertsche, partner with the law firm Prince Lobel Tye in Boston. Rob is devoted to protecting and strengthening his clients’ ability to communicate their content on a wide variety of platforms including digital, interactive, print, electronic, and social media. As a media and First Amendment lawyer with a national practice, Rob offers counseling and litigation services to clients throughout the United States including magazines, newspapers, book publishers, broadcasters or website operators, bloggers, filmmakers and advertising and public relations agencies, and I’m happy to say he’s also a good friend of mine.

Welcome to the show, Rob Bertsche.

Robert A. Bertsche: Thank you Bob and thank you Craig.

J. Craig Williams: And Bob, our next guest is Eugene Volokh from the UCLA School of Law. Professor Volokh teaches free speech law, tort law, religious freedom law, churche-state relations law and a First Amendment Amicus Brief Clinic at the UCLA School of Law, where he’s also taught copyright criminal law and a seminar on firearms regulation policies. Before coming to UCLA he clerked for Justice Sandra Day O’Connor on the United States Supreme Court and for Judge Alex Kozinski on the Court of Appeals for the Ninth Circuit. He is also a founder and co-author of the popular blog The Volokh Conspiracy which you can find at  HYPERLINK “http://www.washingtonpost.com/news/volokhconspiracy” washingtonpost.com/news/volokhconspiracy.

Welcome to the show, Eugene Volokh.

Eugene Volokh: Oh, great to be on, thanks very much for inviting me.

J. Craig Williams: And Eugene, before we get started I think it might be helpful for our listeners to kind of get a quick little primer on First Amendment law, what constitutes, what it doesn’t, and what the range is compared to hate speech, and how that filters into what’s going on in society lately?

(00:04:56)

Eugene Volokh: Sure, so First Amendment law is a big topic. I teach a class on it, which is about 50 class hours, so it’s hard to compress it, but its relationship to hate speech is the same as its relationship to say unpatriotic speech or rude speech or mean speech or blasphemous speech. Those are kinds of speech, they are not antipathies of free speech, they are not options, they are not even legally defined categories, blasphemous speech used to be, but it isn’t anymore. They’re just labels that people put on various kinds of speech that they disapprove of, the First Amendment doesn’t care.

First Amendment protects the expression of a vast range of speech basically of all viewpoints, they could be hateful viewpoints, they could be loving viewpoints, they could be viewpoints that some people consider hateful and others not, doesn’t matter, they are fully protected by the First Amendment.

Now there are exceptions to the First Amendment. For example, there’s an exception for true threats of criminal conduct. And if you threatened, kill someone because of their race or threatened to kill someone because of their politics or threatened to kill someone because you just don’t like them or because they didn’t give you money, that is constitutionally unprotected.

Likewise, there is a very narrow exception for incitement of imminent criminal conduct, so if you’re standing in front of a building and urging a crowd of sympathizers to storm the building and burn it down, that is constitutionally unprotected but not because it’s hate speech, it doesn’t matter if you’re saying this with regard to a synagogue or you’re saying it with regard to an abortion clinic or a draft office, it is unprotected because it falls within this narrow incitement exception.

So hate speech is a political label that’s thrown around, sometimes it does refer to speech that really is very bad, and I think decent people should reject, but it’s not a label of league with any legal significance, at least in America.

J. Craig Williams: I think that one of the issues that got us wanting to talk about this is, it seems that there’s a lot of misunderstanding among the public about the reach of the First Amendment. You often hear somebody say — one private citizen say to another private citizen, well, you can’t shut me up because I have a First Amendment right to speak; then who does the First Amendment apply to? Is it only government action or does it apply to — how does it apply to private citizens?

Eugene Volokh: So the First Amendment as such only applies to government action. The first word of the first moment is Congress, Congress shall make no law, that has long been read as covering all aspects of the federal government, so the Fourteenth Amendments which covers the actions of States, the First Amendment has been incorporated against state and local governments as well.

However, there are some statutes that restrict private action, that punishes speech; in particular about half the states have some statutes limiting private employer retaliation for their employee’s speech or other political activity. Some statutes are quite narrow, they’re limited only to say signing petitions for initiatives or a friend or some such.

Other statutes are broader. California, for example, has a statute that has been read in many ways quite broadly, Connecticut has a statute that has been pretty broadly read, although maybe not as broadly, New York has a statute whose scope is kind of complicated. It’s very much a state-by-state matter, those aren’t again, that’s not the First Amendment. So it’s technically inaccurate to say even in a state like California or Connecticut, my private employer can’t fire me for my speech because of the First Amendment because literally the First Amendment doesn’t apply to the employer.

But, it might be relevant to — or similar First Amendment type arguments may end up arising under these state statutes. So it’s not technically a First Amendment issue, it’s more a free speech issue, but there is some legal protection against even some kinds of private action. That’s for employment, for universities, California has a statute that basically bars even private universities from expelling students or disciplining them for their speech, and likewise, even for private high schools, other states don’t. As to private commercial landlords maybe about four or five states, including California, limit private large mall owners’ ability to expel, say signature gatherers and other speakers based on the content of their speech, most states do not.

So it’s varies very much by state and by kind of by domain, by the kind of private entity that one is complaining about.

J. Craig Williams: Rob, I want to bring you into the conversation here and perhaps you can kind of take a look at it from a private citizen’s standpoint. How does the First Amendment apply between two individuals?

Robert A. Bertsche: Well, you have the right to say what you want to say to me and I have the right to say what I want to say to you and the First Amendment isn’t going to bar that. It gets more interesting, and one of the things that I worry about today is, when we have modes of communication that really are not governed by the government, they were not controlled by the governments, the government doesn’t have the power to shut them down or not, like Facebook, like Twitter.

(00:10:17)

But these private companies like Facebook and Twitter can in fact impose their own rules, and those have become in fact such dominant modes of communication in our society that private censorship can quickly become as much as if not more of a problem for free exchange of viewpoints as public censorship.

Bob Ambrogi: We had an interesting issue — interesting event, I guess, come up in Boston recently that, Rob, I know you have written about and thought about, but there was a so-called group called the Boston Free Speech Coalition had organized an event which it wanted to go onto Boston Common and express its opinions about various issues with a lineup of speakers. And there was a large — expected to be a large group of sort of counter protesters who were expected to show up, and the Boston police did something I have never seen before, which is that they cordoned off this kind of group of the so-called Free Speech Coalition, which I think was identified by some as a right group, I don’t think it was necessarily as libertarians, various people involved in it, but they basically cordoned them off in a way that the public, the rest of the public, who wasn’t part of this coalition, couldn’t hear a word they were saying, and in fact, closed the media off from getting in close enough to hear what they were saying, so even the media couldn’t cover it.

Rob, I would make sure I explained that right, but what was your take on that? Have you ever seen anything like that?

Robert Bertsche: I was very concerned about it, although I am not sure that it came entirely out of bad motives, and let me explain what I mean by that. I think the police were expecting — well, first of all, this Free Speech Coalition as they called themselves had a permit that allowed them to bring a sound system. Apparently on Craigslist two days before the event they were still advertising for does anybody have a sound system, and when they got to the event they did not bring a sound system.

Had they brought a sound system the barrier zone and the buffer zone that was created by the police probably would not have been the same kind of issue because what this Coalition had to say could have been heard by at least more of the crowd as it was they really couldn’t be heard at all by anyone and in retrospect that buffer zone was far, far, far too wide.

Now was that because the police had a different expectation about the amplitude of the rally or was it because the police did not want the Coalition’s viewpoint to be heard.

Unfortunately, Boston Police Commissioner Evans made a couple of comments, as did the Mayor, suggesting that it wasn’t really a problem that we couldn’t hear these people because their speech isn’t worth hearing anyway, and that obviously concerns me a lot as a First Amendment lawyer.

J. Craig Williams: Professor Volokh, can you actually parse the First Amendment like that? Can you say that the right of free speech also includes the guarantee that you have the right to have people listen to you?

Eugene Volokh: Well, I can’t speak to the specific facts of what happened in Boston, I just haven’t focused on the news enough, but the First Amendment includes the right to speak in a way that is reasonably calculated to draw listeners and to be heard by listeners.

So if the government says, sure you can speak, but you just have to do it in a whisper using signs that are no more than an inch high, but we are letting you speak just that way. Well, that’s clearly impermissible.

On the other end, no, nobody has a right to get people to listen if people just don’t want to listen, then in that case they don’t have to listen.

So there is a body of law having to do with so-called content neutral, time, place and manner restrictions, which for example, allow the government to impose reasonable volume limits or let’s say reasonable noise limits, but not unreasonable ones.

So one of the important things is that they have to leave open any set restrictions besides being content neutral, which is to say apply to people regardless of the content of what they are saying, they have to leave open ample channels for expression.

So at that point when you’re talking about content neutral restrictions, the government does have some latitude and something does depend on the circumstances, and yes, if you are going to organize a large event and as a result you need a permit and the permit says that you are going to be speaking here and you are going to have an out sound system and such, then — and again, I can’t speak to what exactly happened there.

(00:15:01)

But if that’s so, then the police can reasonably say, look, in order to prevent clashes with counter protesters we are going to have this cordoned off area and we expect you to be heard because you told us you would have a sound system, and if you don’t have a sound system then, well, too bad for you, next time either get one or apply for a different kind of permit.

So there is again some latitude that the police have to enforce reasonable rules, but they have to be reasonable and they have to be content neutral, and I can’t speak to whether that was satisfied in Boston.

Bob Ambrogi: Well, I think what was astonishing about what happened in Boston in part was the reaction afterward, I mean, as Rob mentioned some of the comments from the Police Chief and the Mayor who has quoted in ‘The Boston Globe’ saying, “You can have your free speech all day long, but let’s not speak about hate, bigotry and racism.” That was a direct quote from the Mayor.

Eugene Volokh: Well, a lot depends on exactly what it said. Political figures have free speech rights just like everybody else, so they are entitled to say we don’t want you to speak about such things because it’s wrong to speak about such things or to say such things and we want to condemn it. At the same time they are not allowed to say, look, if you say this then you will be arrested unless that this is constitutionally unprotected.

So that’s why it’s important to again be attentive to the details of what exactly the government officials are saying, are they just condemning speech or are they saying that they will shut down the speech?

Robert Bertsche: It actually struck me that Marty Walsh, the Mayor of Boston, was in a funny position before the rally, he obviously for political reasons wanted to make it clear that he did not support the message that this group was trying to get help, on the other hand the more he talked about that the more he would help in the argument that would say that the setup was such that these protesters were being limited in their speech based on the contents of their speech.

J. Craig Williams: Let’s talk for a moment about the Twitter issue with President Trump, Professor Volokh, where do you come down on the issue of whether he has the right to block people who disagree with him on Twitter?

Eugene Volokh: Yes, that’s an interesting question. Let’s step back and look at a different kind of cases that’s related because I think that highlights the issue. There are some controversies about government agencies which open up Facebook pages and open up comments on Facebook pages, they don’t have to allow comments but they do, and then they block certain commenters because they don’t like their viewpoints.

There are few courts that have considered this that the courts have said is unconstitutional because by opening up this place where people can speak even on Facebook site which is a private site but it’s in a page run by the government, the government agency is creating a so-called limited public forum, and when it creates this kind of limited public forum, it has to administer it in a viewpoint-neutral way, so it can’t exclude speakers based on viewpoint.

So under that logic, if let’s say, the @POTUS, President’s Twitter feed were restricted to Twitter users who might want to comment based on the user’s viewpoint, that would probably be unconstitutional.

The complicated factor here is this isn’t a government agency in the sense of a government body, it’s a particular person, and it’s not the @POTUS account, it’s the  @realDonaldTrump account. It is the one that Donald Trump has had for years from before the time that he was elected, presumably it’s one that he will keep after he leaves office, it’s not like POTUS which is inherited from and will be left to the next president.

So the question here really is, is this a government account with President Trump acting as a government official here, or is it a politician’s account. Albeit one used for commentary in public policy issues and commentary in his job, but still where he is speaking as a person himself.

Interestingly, there is a similar but different controversy brewing right now with regard to Senator Rubio and a different Clause of the First Amendment, the Establishment Clause.

Senator Rubio has recently been regularly tweeting Bible verses, and the Freedom From Religion Foundation has sent a letter to him demanding that he stop because it says that this is endorsement of religion by the government and is thus violative of the Establishment Clauses the Supreme Court has interpreted as banning such endorsement.

And I would say in Senator Rubio’s position it will be, no, no, no, this isn’t the government, this is me, Marco Rubio, the politician to be sure commenting about matters that are before me but still I am expressing my own views as politicians often do when they make religious statements in their speeches.

So this question is to whether an official is acting as the government or is acting as a politician who happens to be in office, that is a complicated question and the one that the court will have to consider in the President Trump case, and eventually in the Senator Rubio case that actually comes to litigation.

(00:20:04)

J. Craig Williams: That’s a really interesting point, but before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors.

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[Music]

J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is attorney Robert Bertsche, partner with the firm Prince Lobel Tye, LLP, and Eugene Volokh, founder and co-author of the popular blog, The Volokh Conspiracy.

And right before the break, we were talking about the Twitter account of President Trump and whether or not — that whether he’s speaking in the @realDonaldTrump account that he uses as an individual or as a politician and who’s in office, right now. Rob, how do you see the general public understanding the speech that comes from the @realDonaldTrump account?

Robert Bertsche: Well, I think the analysis that Professor Volokh puts out makes a lot of sense and it opens my eyes to this frankly. I don’t know about Marco Rubio’s account, I don’t follow him. I do in fact follow @realDonaldTrump and get interrupted several times a day with alerts. And it looks to me like he is using that account in the same way the previous presidents made press statements during the course of the day.

It really is being used in his presidential capacity as opposed to talking about how fond he is of his daughter or his dog or sharing cat pictures or whatever it may be. Professor Volokh, do you think that makes a difference.

Eugene Volokh: That is certainly an argument that the challenges are making. It’s an argument that a District Court dealing with a similar issue involving a local politics in Virginia has accepted. I’m a little skeptical about that. Again, let’s look at the religious speech question.

Generally speaking, when a politician gives a speech and includes everything from god less America to more, even more overtly religious commentary, we generally don’t say, oh, this is forbidden, this is an Establishment Clause violation because it’s of a government’s speaking. We say it’s a politician’s speaking; even when he’s not talking about his daughter or his favorite football team, but when he’s talking about policy because we realized that politicians could talk about policy and still be speaking in their capacity as a politician rather than in their capacity as the government or as a government official.

Indeed, in one of the Ten Commandments cases, Justice Stevens joined by Justice Ginsburg who takes a quite restrictive view of the Establishment Clause in the sense that he views the Establishment Clause as restricting, quite seriously restricting government religious speech said, well, of course, all these examples of politicians engaging in religious speech, that’s not a First Amendment violation because they’re speaking on their own behalf even when they’re talking about politics.

Likewise, you could have people giving — politicians giving speeches when running for re-election. Those are generally not seen as speech on behalf of the government, it’s on behalf of a particular person running for office even though he is running as an incumbent and that’s so — that’s seen as his own private views; even though the speeches are very much about the kinds of things he’s been doing in office, is doing in office and hopes to continue doing in office.

Bob Ambrogi: That makes the question then —

Eugene Volokh: So I am not sure that it is a —

Bob Ambrogi: Excuse me, it just makes the question of where the bright-line test is? Is government’s speech only made on the Senate or House of Representatives floor or from the presidential podium at the White House or is it when they are outside speaking about what they’re going to do inside?

Eugene Volokh: Well, right, that is the question, and again, it’s the question for the Establishment Clause as well as Free Speech Clause. I don’t know what your view of the endorsement test is as to the Establishment Clause, it’s quite controversial. There are lots of arguments for and against it.

(00:24:58)

But let’s assume whether we share Justice Stevens’ view, and in fact, it seems to be the majority view at least in the last time the court has visited the issue is that the government cannot endorse religion. Does it follow that the president can’t speak out religiously in his own speeches, does it follow that Senator Rubio can’t tweet out Bible verses?

Maybe the answer is, yes, maybe they shouldn’t be able to speak this way, even though they would claim they have their own free speech rights to speak this way. But if you say, no, no, they are actually — that’s not the government endorsing religion because even when they’re talking about politics and are talking about their jobs, they’re talking in their individual capacity then it may be the same thing would apply to the Free Speech Clause.

I agree that there is a question of where you draw that line and it’s just that this issue has not arisen enough in court for the courts to have set forth such a clear line.

J. Craig Williams: I wonder if we could just return again to this question of hate speech and moving off the Boston incident, but in Berkeley, California this week, there was also an incident in which there were these hundreds of, I guess, anarchists dressed in black who overwhelmed a protest there.

What is the government’s responsibility vis-à-vis maintaining the balance between the ability to speak in public and the ability to protect the public and ensure that peace is maintained? How do they strike that balance?

Bob Ambrogi: And let’s follow where that goes to just also add in the concept of the heckler’s veto.

Eugene Volokh: Right. So I think the answer is the government needs to protect speech and protect the public and it should protect the public by arresting the thugs who are trying to suppress speech and not the speakers whom the thugs are trying to shut down. And there’s a very basic principle here and it’s not just the First Amendment principle, it’s a fact we learned early on in life, behavior that is rewarded is repeated.

If people who threatened to attack speakers see that that ends up accomplishing their goals, they don’t even have to attack because the police say, oh, there’s going to be an attack, we’re going to shut down the speaker, what we’re going to see is more threats and more such attacks and not just from the so-called anti-fascist, I think they’re missing the meaning of “anti”, I think they are themselves fascists, from the fascist extreme left. But it could equally be from the right or it could be from others as well.

Once you teach people who are willing to engage in violence or to threaten violence that that pays, pays in the form of getting the speaker’s they want shut down, getting them shut down or that you’re going to see more of that.

So what I think the police needs to do is they need to show up. They need to defend the speakers. They need to intercede when there are attacks on the speakers or for that matter by the speakers, my understanding from media counsel though I realize it may be mistaken is that in Charlotte, so the police for some reason didn’t intercede and then in a past incident in Berkeley, the police didn’t intercede.

They need to intercede, they need to do their jobs, and when they do that enough, I think that the thugs are going to realize that they can’t engage in constitutionally unprotected violence against speakers and the police won’t use that violence as an excuse to shut down the speakers rather they will arrest the violent. And incidentally, if there is a speaker out there engaged in unprotected speech for example, threatening violence against counter-protesters or really speech this fits within this narrow incitement of imminent violence exception, they too need to be arrested.

But I think we need police that will do the job and that won’t just stand back, won’t be ordered to stand back by higher-ups and I think once we do that I think people will realize that violence doesn’t pay.

Robert Bertsche: And just adding to that, I think the police in Boston happen to have done a pretty good job there. Now, that’s talking though about the threat of violence shutting down speech. What about when you have the threat of speech shutting down speech?

I talked before about the failure of the Boston organizers to bring a sound system. I suspect that had they brought a sound system, you still would not have been able to hear them because the counter-protesters would have drowned out their voices. And I don’t think there’s anything that the police or the government can do about that.

Eugene Volokh: Well, I think that is in fact the reason that there are content-neutral, time, place, manner restrictions especially for large demonstrations. And the way they often operate is somebody gets a permit to be in a particular place and use the sound system in that place up to a certain decibel level. And if counter-protesters want to speak, they’ll get a permit for some place, some distance removed where they might be able to use their own sound system but also to certain decibel level.

So the people who show up and are close to the first group of speakers will hear the first group of speakers, people who show up close to the second group of speakers will hear the second group of speakers. Likewise, you have situations where there are speeches inside buildings; for example, at a university, and if people go into this building and then start shouting when the speaker is supposed to be speaking, they ought to be arrested and prosecuted for that and occasionally that happens.

(00:30:00)

There was an incident at UC, Irvine here in Los Angeles suburbs where an ambassador from Israel who had been invited to give a speech was shouted down by hecklers so that the audience couldn’t hear the person they showed up to hear and they were arrested and prosecuted and rightly so.

J. Craig Williams: Well, we are just about at the end of our time for the show and before we wrap up we’d like to give each of you an opportunity to have the last word and give your closing thoughts on the topic, and if you also care to let our listeners know more about how they can follow up with you, I welcome you to do that as well. So, Rob Bertsche, let’s start with you.

Robert A. Bertsche: Sure, I guess, when I look back on the experience we had with the Boston protests, one thing that struck me and gratified me was that with the exception of some of the side comments that we talked about, nobody was really talking about people should not be able to express those hateful views. People were talking about how awful those were how much they should not be believed, how much they should not be followed and maybe denigrating those who spoke it.

But there seems to be, it seems to me that the First Amendment to that extent has really become ingrained in the American psyche, and that I find encouraging. I am concerned as I said earlier about the way that private control over speech can limit our ability to communicate with each other and that may be one of the free speech problems that we face in the 21st Century.

In terms of my practice and contacts, I’m a First Amendment lawyer here in Boston, do all media work all the time, former journalist and could never get it out of my blood. I can be reached at  HYPERLINK “mailto:[email protected][email protected] or on Twitter @PLT_Media. And thanks very much for giving me the opportunity to be on the program.

J. Craig Williams: Well, thanks for being with us, and Eugene Volokh, your final thoughts.

Eugene Volokh: Sure, yeah, I think the Supreme Court has in — over the last several decades built an impressive and largely sound body of free speech law that provides very broad protection for free speech. When matter comes to court, generally speaking speech is protected, but I do think we’re seeing now in a way that I don’t recall seeing over the last 30 years that I’ve been following these matters an Anti-Free Speech Movement.

People who are speaking out an organized ways, in favor of suppressing speech, suppressing speech through criminal punishment, they’re trying to adopt European-style so-called hate speech laws. They were urging universities to suppress speakers and expel students and sometimes discipline professors for engaging in certain kinds of speech, and sometimes are even defending violence against speakers that they dislike, and I think that’s dangerous and I think it’s especially dangerous to the extent that a new generation of high school and college students are becoming acculturated into that set of attitudes.

Now of course people are free to criticize the First Amendment and argue for repealing the First Amendment or limiting it and the like, that too is constitutionally protected speech, but I do think that there is a good deal of such speech out there and I think it’s important to argue against it and it’s important to keep that from prevailing.

As to where people can find me, if you just Google “Volokh”, my last name, I have a pretty wide Google footprint. I think the first thing you’ll probably find is my weblog at the Washington Post that I found it in together with my brother and that several other law professors contribute to. So if you go through you’re going to find a lot of stuff, much of it about free speech, but also on lots of other topics as well.

Bob Ambrogi: You do in fact show up easily on Google. And, well, thanks a lot for taking the time, we’ve been speaking today with attorney Robert Bertsche, Partner with the firm Prince Lobel Tye in Boston and media lawyer there with Eugene Volokh, UCLA School of Law professor and founder of the popular blog, The Volokh Conspiracy.

Thanks, a great deal to both of you for your time today and your thoughts.

Eugene Volokh: Thank you all and all the best.

Robert A. Bertsche: Thank you Bob. Thank You Craig.

J. Craig Williams: Great, and Bob that brings us to the end of our show. If you like what you heard today please rate us in Apple podcasts. I’m Craig Williams with Bob Ambrogi. Thanks for listening, join us next time for another great legal topic, when you want legal think Lawyer to Lawyer.

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Outro: Thanks for listening to Lawyer 2 Lawyer, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast, covering the latest legal topic. Subscribe to the RSS feed on  HYPERLINK “http://www.legaltalknetwork.com/”legaltalknetwork.com or in iTunes.

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Episode Details
Published: September 1, 2017
Podcast: Lawyer 2 Lawyer
Category: Legal News
Podcast
Lawyer 2 Lawyer
Lawyer 2 Lawyer

Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.

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