Importance of Natural Resources

UC Berkeley Faculty Panel on Free Speech


(audience applauding) – I wanna thank you, first
of all, for coming out on a Friday afternoon, your
presence here clearly shows the importance of this topic
to our community right now. So I’ve been thinking
deeply about free speech for not weeks, months, and
the more I think about it, the more I realize how
complex an issue it is. It’s not that the law is that complex but it intersects, indeed
conflicts with our values in very complicated ways
so I thought a good way to enable the community,
the Berkeley community, staff, faculty, students
to engage with this issue is to ask some of our faculty
who have thought deeply about it to discuss it,
so the form of this event is going to be that I’m going to ask each of the faculty members on the
panel, after I introduce them, to talk for about five minutes
giving their perspective, then I’m gonna ask some questions
and then there’ll be time for you to ask some questions. I think this event will
last till sometime between 5:30 and six o’clock so
that’s the timeframe. I feel like I should
channel the fire marshal right now
(audience chuckles) and to (chuckles) suggest
that please try to leave room up the aisles, I know we have
people sitting in the aisles, that’s fine but to enable
people to get through them and to not block the entrances
so let me now introduce our panelists, starting at the
far right, far left, sorry. I have to keep my (mumbles) straight. (Carol and audience laughing) Is David Landreth, a colleague of mine from the Department of
English and a specialist in Renaissance literature,
sitting next to him is Erwin Chemerinsky, the
new dean of the law school and a constitutional law scholar. Erwin has just published
a book on free speech, which I suggest you all
read, it’s a great book. Next to him is Steven Hayward, who is a visiting scholar at IGS, the Institute for Governmental Studies. He’s a columnist and he’s
the Ronald Reagan Professor of Public Policy at Pepperdine University. Sitting next to Steven
is Arlie Hochschild. She is an emeritus professor of sociology, written many books, but most
recently, a wonderful book called Strangers in Their
Own Land, which I hope she’s gonna talk about
some in our panel today and then finally to my immediate left, John Powell, he’s a professor of law, African-American studies
and ethnic studies and the Robert T. Haas Chancellor’s Chair in Equity and Inclusion
and the director of HIFIS so please welcome our panelists. (audience applauding) And I’m going to begin our
panel with asking Erwin just to talk a bit about
what the state of the law is so that we’re all on the
same page in relationship to the First Amendment
and what it guarantees. – Thank you, it’s an honor
and a pleasure to be part of this terrific panel, we certainly can and should have discussions
what our ideal is in terms of free speech
on campus and to balance that against other values but the reality is what the campus can do is constrained by the First Amendment because this is a public university, the
First Amendment applies. Above all, the First Amendment means that all ideas and views can be expressed on a college campus. The government, including
a public university administration, can never
prevent or punish speech because of the viewpoint expressed. Now that doesn’t mean that
free speech is absolute. Long ago, Justice Oliver
Wendell Holmes said there’s no right to falsely shout fire in a crowded theater but
the Supreme Court has said that the categories of
unprotected speech are limited and they have to be narrowly defined. Let me mention them to you because, again, it very much can influence the discussion we’re having this afternoon. The Supreme Court, for
instance, so it’s not relevant to our discussion has said
that child pornography is speech not protected
by the First Amendment. False and deceptive advertising is speech not protected by the First Amendment. That’s speech the government can punish. For our purposes, though,
there are some categories that might arise on college campuses where speech can be prevented or punished. Incitement of illegal activity is speech that’s not protected
by the First Amendment but the Supreme Court has defined incitement in a very circumscribed way. The Court has said in
order to be incitement, there has to be a substantial likelihood of imminent illegal
activity and the speech has been directed at causing
imminent illegal activity. The Court has said that
true threats are speech not protected by the First Amendment. A true threat is speech that
reasonably cause a person to imminently fear for his
or her physical safety. So if a person was
surrounded by an angry mob and the mob was shouting at the individual so the person feared for
his or her physical safety, that wouldn’t be speech
protected by the First Amendment. Harassment is speech that’s not protected by the First Amendment, there’s
no right for an employer to say to an employee, “Sleep
with me or you’ll be fired,” even though it’s just words. In the context of employment,
in the context of education, usually to be harassment,
it has to be speech that’s directed at a person,
it has to be pervasive. It has to interfere with the person’s educational opportunities
based on criteria like race, sex, religion,
sexual orientation. Now, you’ll notice as I go
through these categories of unprotected speech
what I haven’t listed and that’s hateful
speech, offensive speech. In fact, the Supreme
Court has made it clear that speech cannot be
punished, cannot be prevented just because it’s hateful or offensive, even if it’s very deeply offensive. In the early 1990s, over
300 college universities across the country adopted
so-called hate speech codes. Without exception, every
one of them to come to court was declared unconstitutional, why? We all know that hate
speech can cause real harms. We protect speech because
it is has affects. If speech was meaningless,
we wouldn’t regard it as a fundamental right, the
affects can be positive. Speech can be ennobling, uplifting, but it can also be hurtful and cause great pain, hate speech does that. And you know what the courts all said? Is it seems impossible to
define what’s hate speech. Usually the hate speech code
said we’ll prevent speech that stigmatizes or demeans,
but what does that mean? Also, we’ve learned that laws
that prohibit hate speech, whether in countries or on campuses here are much more often used against those that we’re trying to protect
than any other group. When the University of Michigan
adopted a hate speech code, literally every prosecution under it was brought against minority students. Perhaps, most of all, the
Supreme Court has said that hate speech is protected
because it expresses an idea and remember what I said to
start: all ideas and views can be expressed on campus,
no matter how offensive. One other thing that should
inform our discussion and your thoughts about this
issue, campuses can have time, place, and manner restrictions
with regard to speech. Even though free speech is protected in a public university
campus, it doesn’t mean there’s a right to speak
literally at any time at any place or in any manner. The campus can restrict
speech so as to preserve the educational opportunities on campus and also to protect public safety. You have a right to speak
but you don’t have a right to come in my classroom when I’m teaching and disrupt what I’m doing
through your speech activities. Nobody has a First Amendment right to come in this auditorium
now and yell in a way such the panel can’t go
on, that’s what time, place and manner restrictions means
and so the campus can limit where and when and how speech goes on to make sure that it doesn’t
disrupt campus activities and also to protect public safety. The issue of public safety
has been much in the news and certainly very
relevant on this campus. And the Supreme Supreme
Court and the lower courts made clear that the
campus has the obligation to protect speakers of all views. Even it’s expensive, the campus
is the obligation to do so. But if the campus, through
every possible effort, cannot find any other way
to protect public safety, then it can cancel a speaker,
that should be a last resort. It should be only if there’s
no other way to do so and it can never be based on
the viewpoint of the speaker but the campus does
also have an obligation to protect the safety of
its students, its staff and its faculty, so I’ve
covered for you in a little less than five minutes what I usually
spend a semester going over (audience applauding)
with my law students and undergraduates but maybe
the most important thing I can say to frame this discussion
is something that, again, Justice Oliver Wendell Holmes said. He pointed out we don’t
need freedom of speech to safeguard the speech we like. We naturally let that happen. He said what we really
need free speech for is the speech we hate and he
said that the best response to the speech we don’t
like is more speech. (audience applauding) – So, David, why don’t you share with us your thoughts about free speech. – Sure, so I’m scholar in
the English department. As Carol said, I teach Shakespeare and other (chuckles) folks
from the 16th century. My immersion in contemporary
free-speech issues dates from this January, I mean
I’ve been speaking as freely as I can as an American
citizen for some time but this January, I was involved, as wound up being about 100 faculty in a letter to the chancellor that asked that Milo Yiannopoulous not be permitted to speak on campus. Our rationale for this was based on the distinction that
Professor Chemerinsky just drew between speech that is protected and conduct that is impermissible. Our argument was that the
conduct that Yiannopoulous engaged in over the course of his tour across other campuses in the nation consistently violated the standards of our campus code of conduct and that it was growing
more and more egregious as the tour went on. And for that reason, we
asked both the chancellor at the time and the sponsoring
student organization to rescind the invitation. Since then, a lot of water
has gone under the bridge for this particular speaker and I am told that he has, in receiving a new invitation to speak, agreed to abide by our
campus code of conduct, agreed to stop targeting
individuals for harassment based on protected categories so we need to hold him to that. I would (chuckles) it seems to me that a motivation for him
to stick to the campus code of conduct is precisely that
he is holding a multi-day event and we will be watching (chuckles). In this appearance, I
wanted to articulate again that distinction between
speech that is protected and conduct that is impermissible as well as my trust (chuckles) that Yiannopoulous is
turning over a new leaf, fingers crossed. I’d also like to talk in
my capacity as a scholar of the history of the
English language a little bit about larger issues of
where freedom of speech has come from in order to be
enshrined in our Constitution and where freedom of speech seems to be going in our imaginations. The question that I have for all of you is when you picture
someone speaking freely now in this moment, what
scene do you envision? Do you envision a great Roman orator berating his opponents in the senate? Do you envision Mario Savio in the roof of a police car surrounded by a movement of thousands of his fellow students? Do you picture a troll sitting in his or her basement provoking someone that on
whose words are represented on a computer screen, a person
whom he will never meet? The reason I ask is that
freedom has changed a lot since the concept emerged
in ancient Greece and Rome. There, freedom was a class privilege. It was the privilege of the
ruling class to participate in the political order, the
Republican order in Rome. Only a very few male subjects of that order were citizens. Only those few could speak
freely in the senate. The great contribution of our society has been to push that privilege toward a universal condition. The 14th amendment declares
that the privileges of citizenship shall not be abridged for anyone who is a citizen
of the United States. That universal privilege, as we know, has not yet been achieved. The law cannot restrict it but some of us remain
less free than others. We will not be able to confirm that universal privilege of speech until all of us can talk back to a cop, regardless of our ethnicity or appearance without fearing for our lives. Universal privilege is a paradox. Privilege is an idea that
comes out of a culture based in domination, a slave culture in which the masterful
few cherish their freedom. How can we assure that each of us is equally free? How can we ensure that
our concept of freedom does not entail
domination, does not entail simply competing to be the
loudest voice in the room? So I guess those are two questions, one the question of the
scene that you picture when you picture someone speaking freely, the other, this more abstract question of how we can make our
freedom, make our voice as heard for each of us
as it is heard for any us. – Thank you. Steven?
(audience applauding) – Well, thank you, Chancellor Christ and all of you for coming,
I think ought to just say a little bit more by way of
introduction about myself since I’m still pretty new here in the way of full disclosure as the
saying goes these days so I am in fact a card-carrying member of the vast right-wing conspiracy. I spent most of my adult
career in Washington, D.C. mostly at the American
Enterprise Institute. I write for National
View, Weekly Standard, Commentary Wall Street
Journal editorial page, the usual places and used
to do a lot of media. I get on CNN a lot, the
NewsHour and PBS, CNBC, and of course most often on Fox News. I wanted to give people a
chance to boo if they wanted to. (audience applauding) So I was, pause for a reason,
but I am trying to practice a, I think I may trying trying
trademark this phrase. I’m trying to practice
a Reverse Hochschild and get out of my bubble.
– Oh, okay. – And so I’m telling
my conservative friends that I’m now spending a three-year hitch as an inmate at UC Berkeley–
(audience laughs and applauds) and enjoying it immensely. And so I have two opening
thoughts about this and the headlines are
these: one is that I think the controversy of free
speech needs to be placed in a broader context of
what it might be called the crisis of legitimacy
of democratic institution and democratic values today,
I’ll explain that briefly. And the second one is
that if we’re gonna make some progress on the way
forward in our conversations about this on campus here
and around the nation, I think we need to treat some
fundamental prior questions that might set up what
the basis of any limits on free speech might be. Now Chancellor Christ
has written, I think, beautifully and eloquently
championing the, what I call the old liberal tradition of free speech as understood by John Stuart Mill, that classical tradition
stretching back to Milton. I’m in heated agreement
with that point of view. I know you want us to
disagree but I can’t find any daylight between you and me on that. The point though is is that what was once a nearly universal accepted principle is no longer universally accepted. I’m struck by polls,
especially of millennials, that would be the student generation today where you get a large plurality,
sometimes more than 40% saying they no longer think free speech is a paramount principle or
one that should be elevated above or put this way, the
survey question suggests there’s substantial support
for restrictions or regulations of some kind on hate speech,
however we come to define that concept so that represents,
I think, a very sharp break from previous public opinion surveys on free speech going back decades but I think it goes
with a couple of others. The same surveys often
find that especially among millennials and not just
in this country, by the way, this is a phenomenon
that’s going on worldwide of the advanced democracies,
also a large plurality, often over 40% saying they’re not sure about democracy itself anymore. Everybody’s kind of frustrated
with democracy these days. You can see that in the unrest
in the various populisms in all the advanced countries as I say but that’s a startling thing, I think, I mean democracies have
always had problems. I think pretty much there
was universal agreement with that old line of
Churchill’s that democracy’s the worst form of government
except for all the others that have never been tried.
(audience chuckles) Except today, there does
seem to be a renewed openness to other forms of rule that
promise to make the trains run on time, which is
something that troubles me and then the third one
that troubles me a lot and I know Chancellor Christ,
I think you want us to argue some but I think Arlie
and I are going to end up in close association on this. There’s some survey findings,
I follow survey data as a political, some survey
findings that really disturb me: trust in institutions has
been falling for long time. There’s some variance,
higher trust in the military. The church is been going down,
government, local, state, all the rest, universities
lately have been seeing some wobbles in public
regard for universities, which ought to worry
administrators everywhere. The one that really jumps out
at me is the survey question that says along the lines of do you have confidence on your fellow citizens? Used to be the people
who said no is 35 to 40%. That’s 15, 20 years ago, now
that number’s up around 60%. In other words, a majority
of Americans are saying they do not have confidence
in their fellow citizens. And the problem here is
when we see each other as utterly alien, it becomes
impossible, difficult, maybe impossible to be fellow citizens so I wrap up all these
question, the controversies on free speech, the
legitimacy of democracy and the growing divide, it’s
been talked about a lot, the polarization of politics
as a crisis of legitimacy and so I think that the answer
to the free-speech question, answer, some progress in
our thinking about this is going to be dependent on thinking about some of the
connected questions to it. Now, second point is and here,
I’m a little bit heterodox with standard current
conservative views on things. I’m not entirely happy with
the view that hate speech should deserve the unqualified protection of the First Amendment,
however we define hate speech. Now this could get
weird is in a small way, I could end up possibly
to the left of Erwin on this question and I
think getting the left of you is really pretty hard to do. (audience laughing) By the way, I have to say it’s
in my union contract, Erwin. I hope you don’t mind, so
think about how it this way. I mean here’s what a lot of conservatives are actually saying, I
don’t know how many of you actually pay attention this is, they say, hate speech, Milo, Ann
Coulter, whoever, hate speakers and then some of my side,
yeah, but but free speech, First Amendment and I spent
raise my hand and say, wait a second, are you
saying that we should invoke our right to be, let’s see bigots, racist, homophobes, patriarchs, Islamophobes? Have I left anything out?
– No, that’s pretty good. – That’s sort of the
comprehensive list, right? Really, and if that’s
really the way (chuckles) your argument’s gonna run,
why should anyone listen to anything we have to
say about anything at all? It’s a really dumb argument. It would take too long, I
don’t now want to engage Erwin, maybe in some events for your book, we might talk about this up
but just to give one example, I’m not sure the Supreme Court was right when it said that Nazis could
march through Skokie in 1978. The end of the day, I
come down I think on, I think it’s your side
that, and the ACLU’s side that have to let them exercise
their right to free speech but I think that’s an arguable question and I think that becomes
an arguable question because the prior question I
want to raise is are there, either for a democratic
society or a university, the question I think we
should argument about is this: are there any closed questions? The principles of free speech is utter openness about anything, right? Are there any closed questions? Now, it’s a long subject,
just very briefly, the ideological left and
the ideological right have answers to that
question in the affirmative and I actually think they
overlap in some ways. It could be interesting
to discuss at leisure, hard to do here, once upon a
time, back when we used to have Western civilization survey
courses, that by the way, I think died out not for the reasons the right usually says
but that’s another story. Sometimes we would argue the question maybe Athens was right to
have executed Socrates. I know a professor at Yale
who years and years ago who used to torment his
students for a whole week defending that proposition.
(audience murmuring) And maybe they were right to execute. Well, that’s a fun one to
play out and a useful one. Maybe it’s one worth doing
again because it’s, of course, it raises the fundamental questions of what are the boundaries
of what society can tolerate while preserving itself but it’s detached from some of the hot-button issues today at least starting, might be a format for a coming into all that, so
I’ll just close very quickly. Okay, I’m gonna use the
phrase campus orthodoxy. It conceals a lot of sins, it’s inadequate but for the purposes of
brevity, I’m gonna say the campus orthodoxy today
is pretty much dominated by the left, wasn’t always
true, the campus orthodoxy, and so the point is is
therefore we should prohibit Milo or Ann Coulter or
Ben Shapiro next week whenever from speaking,
the orthodoxy of 1950s was if you were a communist,
you would lose your job. By the way, an orthodoxy
enforced mostly by liberals not by conservatives, they, conservatives, they never really run universities. Universities have been liberal
for at least since the 1930s. And in private industry, we
know that you got blacklisted in Hollywood if you were
suspected of being a communist. Well, today, everything has revolved and if you don’t conform
to campus orthodoxy today, well, we’re not sure
we’re gonna let you speak. You are now blacklisted
at Google if you dissent from certain forms of
the current orthodoxy about diversity as it’s
popularly understood so we’ve switched places and I think that, my concluding thoughts is this: I think that if you’re
a liberal or a leftist, I think you want to be
very careful about wanting to institutionalize
restrictions on speech. Erwin made brief reference to in the past, we’ve seen how this has
worked to the detriment of minorities and it can,
again, as a practical matter, I do side with the ACLU, I’m pretty much a free speech absolutist
but do think the questions that give rise is controversies
are entirely valid and deserved a lot more sustained and rigorous conversation
and dialogue, thanks. (audience applauding) – Arlie? – So I’m a free speech absolutist too. You know, my very first
semester here at UC Berkeley was the fall of 1962, this was the time of the Cuban Missile Crisis
and I remember walking out of my first class, it was in Dwinelle and walking down the path and looking, facing towards Sather Gate and
seeing not a mass of students but hundreds of small
groups that were all engaged in intense conversation
and I joined one of them and the interlocutors in
this group were smart. They were well informed,
they were differing. “Well, I think Kennedy should do this.” “No, I think he should do that.” “How did we get into this mess?” And it was just electric,
all of these groups of real strangers, I think
probably graduate students were leading it, but in each
one and I thought to myself because I’d come to Berkeley blind. I’d never visited it,
just all by reputation I thought I’m in the right place. I’m in the right place and just a year before I (chuckles) retired from a career, a fabulous, wonderful,
exciting teaching career here, just from going down memory
lane, I went down that same path and wondered what I
would see and what I saw was students, everybody
was on their cell phone (chuckles) and I thought, wait a minute. What kind of collective
public square can we, what from the past can we
restore and put together with what from our current fund of creativity can we add to that? I should say that that
magical view of Berkeley that I always have and
the value on free speech it’s linked with, I always
have in the back of my mind when I have in this last five
years been researching a book called Strangers in Their
Own Land, which is– – Sorry.
(laughs) Thank you, thank you, in
which I try to get out of the Berkeley political bubble of which I am a fundamental part and take my alarm system
off try to cross over what I call an empathy wall to climb into the life circumstances
and the beliefs of people I knew I would have
profound differences with. It was an amazing
experience, just last night, I came back from yet another trip to see how they’re responding to
Donald Trump’s presidency. They all voted very
enthusiastically for him and one of the very first
things, my friends (chuckles) in Lake Charles, Louisiana,
these are mainly workers, pipefitters in the petrochemical
plants around Lake Charles and construction workers
and custodians, teachers and one of the first things they said, “Oh, Berkeley, oh man,
you guys are violent.” And they been watching Fox
News and especially one image of a middle-aged man with a
Trump T-shirt on with blood running down his face
and some young person with a black mask had smashed him over the head with a skateboard I think. So that was their picture
and free speech was a joke. Oh, yeah, Berkeley and
free speech, yeah, yeah. So I had each time with
each encounter, no, no, actually that was a separate group. We’re all against violence
and it’s not the students. I’m sort of stumbling over
myself to say, no, no. It’s like I can remember
(chuckles) and so I think we have a lot of work to do on campus basically to restore what we really are
and I think but we really are is a culture that is
comfortable with difference, actually interested in
difference, not in the defense, oh, don’t tell me new
ideas that I disagree with but no, hey, how come you disagree? So I think actually that Berkeley could be the leader. It could be the leader
in affirming free speech. To do that, we need to beef
up the culture of exchange, respectful exchange and not
just polarizing speakers but smaller forums, we need theater. Someone was proposing the Ku Klux Klowns. (chuckles) Get theater involved. Get all of the various avenues
of expression going here so that when you have one speaker come, it’s in the context of a very lively set of public debates
that’s, I should just say that since the publication of Strangers, I’m just at my email
looking at things coming in and there’s a lot of energy
on both sides to establish common ground across difference and there is actually starting, there’s a group called
the Bridge Alliance. You can google this and
it’s the umbrella group that for some 70 or 80
different organizations with funny names like
Hi From the Other Side or Living Room Conversations
that was started by Joan Blades, co-founder of MoveOn.org and many other organizations. One of the founders is a
Berkeley faculty member and some, I don’t know if he’s here, John Rider, who’s in
charge of Berkeley Bridge and so there’s some talk of
maybe, one of the people, just give you a sense of
what my email is like, two Berkeley grads have bought a bus, filled it with books about
the environment and drove, I just saw them now in Baton Rouge. They’re gonna spend a whole year there and I was putting them in
touch with some of the people I wrote about, so I do see a
lot of possible common ground and we do know that there are
six to eight million Americans who voted for Barack Obama in 2012 and voted for Donald Trump
in 2016 and there needs to be a conversation just
with this group, for example. So I see a lot of possibilities
and I think Berkeley’s just the place to be a
leader in this movement. Thank you. (audience applauding) – John? – Well, again, I wanna add
my thanks to being part of this panel and to our esteemed
leader, Chancellor Christ. The chancellor, when
we were getting ready, mentioned she wanted some disagreements so I hope not to disappoint.
(audience laughing) A couple of things by way of background so I was at the ACLU, the legal director of the ACLU for a number of years. I think that’s where Erwin and I first met so I care deeply about these
issues but I’ve also written about these issues and
think about them a lot. And I wanna pick up on some of the threads that people have talked
about and first of all, I think the country’s in
a very incredible place and I think, in some ways,
I really applaud this effort to have this conversation over
the year but I don’t think this is the defining issue in the country. I think the defining issue in the country is the question of white supremacy. (audience whistling and clapping) And it gets swept under the rug. There’s a new article out in The Atlantic about Trump being the
first white president and this is important,
the country has not been this divided since the Civil War. We are fighting the
Civil War and I would say the South is winning,
these are huge issues and I agree with a lot
of stuff a lot of panel has said, so Steven
talked about the country pulling itself apart but I
would say the country’s pulling itself apart because it refused to embrace the Gettysburg Address. When Lincoln talked about
a new birth of freedom, when Steven talked about
where all the people have been excluded could become part of the political community,
that is what Trump and the right wing is fighting against. It is basically the critical
question for this country is can we have an inclusive we. We, the people, and there’s
some people in power, in the White House who says no. It’s not simply the people
who disagree with me. People are saying like
they did in Dred Scott, you are not human, you don’t belong. (audience murmuring and clapping) Many people who talk
about the First Amendment and I think Dean Erwin
Chemerinsky, who’s been a friend for many years, his recitation
of the Supreme Court I would agree with, except
I think the Supreme Court is wrong and it’s not the
first time they’ve been wrong. They’ve been wrong many times. They supported the Fugitive Slave Law. They supported segregation,
they supported keeping women out of the workforce, they
supported and so it’s not enough to say this is what nine, usually guys, and now we have some women.
(audience chuckling) This is what they think, I’m old enough and Erwin’s old enough to
know that the whole meaning of the First Amendment
has been radically shifted since the 1970s, you could
not have had Citizens United in the 1970s, so what is speech? Is money speech, is
corporate money speech? Supreme Court for 100 years said no. This Supreme Court said yes so it’s not enough to say, well, they said it. We are moral beings and we
have to think about things in a much deeper way than
just what the Court said. Now Chancellor Christ, as others, go back to John Stuart Mills
and in a piece I wrote, which I give the name of
it, it’s call Worlds Apart, I talk about John Stuart Mills. John Stuart Mills was brilliant
and he laid the foundation for both the concept of liberty and the concept of free speech
and so it’s not surprising that people side John Stuart Mills but this is the point that I wanna make. He was wrong. (audience murmuring) And part of the reason he was wrong is because he didn’t have the benefit of what we’ve learned in
the last hundred years. So Mills’ concept of
speech is quite simple. He’s a complicated man
but it’s quite simple. He said, “My liberty stops
at the tip of your nose.” What he meant by that and
he had a concept for it he called other-regarding
acts and self-regarding acts so self-regarding act was something I did that didn’t really
physically or impact others. Those are self-regarding acts and he said those are natural liberties
and speech is one of them and we should not, the
state, should not regulate natural liberties but he said
liberties that actually harm someone else, he called
other-regarding acts. Liberties that harm someone
else are other-regarding acts and the individual does not have a right to other-regarding liberties,
those are social liberties. Society decide how to deal with that. And I don’t have time to
go into it in great detail but the point that Mills was
making is that some things injure other people and
both the concept of liberty and equality does not allow
us to injure other people with impunity, now most of
the debate around free speech and hate speech or discrimination is really predicated on
the notion that speech really doesn’t hurt or it
does and maybe a little bit so we talk about offensive
speech, we talk about hate speech and when speech actually when
we acknowledge that it hurts, we talk about speech
acts and we talk about, so for example, libel, why do
we allow that to be regulated? Because we say it hurts,
so when Mills wrote the idea is that something
short of a physical injury was not a real injury,
now that same rationale was used to support another
case in the United States called Plessy versus Ferguson
and when blacks complained of being segregated on rail cars, the Supreme Court responded
and they said this is a stigma that injures us, and the
Supreme Court’s response was if there’s an injury,
it’s just in your mind. (audience murmuring)
It’s not real. and 60 years later when
another Supreme Court overturned Plessy, it
said the stigmatic harm of segregation is indeed
a constitutional injury. So part of the question
is does speech harm? And the question’s obviously yes. Some of you may been here
a couple of years ago when Claude Steele spoke, he
talked about stereotype threat. We talk about trauma, we
talk about all the things, all the ways we know that speech can harm. It doesn’t mean we shouldn’t
be careful about speech. It doesn’t mean we should ban speech but it means the rationale,
the underlying jurisprudence of speech is radically incoherent and we avoid that incoherence
by denying the fact that speech can, in fact,
injure and I would go so far as to say a lot of the
people, and I don’t mean that they should be
banned, but a lot of people we’re talking about are
engaging in harmful acts. That’s their intent, they
don’t want a dialogue. Now Emerson, another free-speech scholar, talked about four different
reasons for free speech. He talked about self
autonomy, participation, truth, and stability, so
almost everyone who talks about free speech in a serious way say that speech is a
multiple set of values. What happens when those values
conflict, what do we do then? So in that sense, I
would say it’s very hard in a deep sense to be an absolutist because you’re talking about
a complex set of values and one reason we actually
don’t like regulating speech is that it violates the principle of both autonomy and equality. In the little time I have left, I just wanted to throw out
a couple of other concepts. I wanna invite you to do
what was just suggested, to think deeply, one of my buddies is head of the Enterprise
Institute and a very conservative so I don’t think people
should just talk to people who agree with them but there’s
a way in which we can talk. There’s a way in which we’re gonna change. I was at the ACLU and
I brought to the ACLU the question of racial
harassment in the workplace. The initial response from the
ACLU was that’s just speech and I said so why is sexual harassment in the workplace not just speech? Now think about this, in the 1970s, women go into the workplace
and they see nude pictures hung up around the wall,
what’s the response? The response is not the old adage, you correct bad speech with more speech. And some people literally
said if they don’t like the pictures the men are
hanging up, they can hang up their own pictures.
(audience murmuring) It doesn’t make any sense so, again, Oliver Wendell Holmes talked
about the marketplace of ideas. Most of us have learned that markets are radically incoherent,
there’re many different markets and we don’t trust
markets to totally create the kind of society we want. Do we trust government, no,
but it means we have to think of something in a much
more sophisticated way. So let me just end by saying this. One of the points is that if
we try to regulate speech, which apparently we do
with child pornography, apparently we do libel,
apparently we do if you split up with your girlfriend or
boyfriend or whoever and you post their picture, nude, whatever,
that’s regulated so and why? Because it’s a harm. Should we trust government? I don’t know, what do
we mean by government? Do we mean the police, the
same people who are saying, and I would venture to say
the people in Louisiana when they, there’s blood coming out of demonstrators at Berkeley. What about the blood coming
out of Michael Brown? – Oh yeah, oh, yeah.
(audience clapping) – There’s an article I
mentioned, the defining issue in the country today is who belongs. Can the other belong,
and that’s the question. So you have right-wing
nationalist ethnic groups popping up all around the
country as the country, as country has become more diverse. That is what’s challenging democracy and going back again to
Lincoln’s thing, can we think of a new birth of freedom
where all are included? And, again, I actually
believe strongly in equality, strongly in the First Amendment,
strongly in free speech. What happens when they conflict? I think the animating
principle is that belonging, participating is what holds
both equality and free speech. That’s what we should be leaning to. In Canada, when they refused
to allow sexist speech, they argue, the Canadian Supreme Court, they were not allowing it because it violated the principle of belonging. Now, by some accounts, Canada
has more speech than we do. Canada had more demonstration than we do. They’re probably not perfect
but I believe we can do better and I believe we can do better by engaging these questions in a deep way, not in a sloganistic way
and not in a simple way. Yes, we’re in a hard place
and so I’m not saying we have the answers but I
think we could do better at posing the question, thank you. (audience applauding) – So we have a really interesting conflict here, I think, I mean really fascinating. We have on the one hand an
account of the jurisprudence of the country, what the
Supreme Court has said, and John is really challenging
that as an adequate guide to the harm that speech can do. So I’d like our panelists to
reflect on the differences between physical harm and emotional harm. (audience murmuring)
(Carol and Arlie laughing) – I agreed with a lot that you said, John. What I would add is that we
need here in public forums to discuss injury, what is injury? Do we all see it the same
way, do we recognize it? Obviously, in this country at
this moment and you’re right. It is about like the Civil
War and I do think race is hugely, is central
to this but then we need a conversation about
it and that’s exactly, this is the forum where
it should be, right? So rather than decide what injury, we should talk about it
and did I get you right? – Well, just two things,
most social scientists today, neuroscientists, health
scientists can measure injury so it’s not totally subjective. We all know trauma is real,
we all know that if you do some things, you actually change
the structure of the brain and, yes, I think we should discuss it but I’m saying that some people
who don’t wanna discuss it, they want to inflict the injury. That’s what they’re asking for permission to inflict the injury and I
don’t think we should give them that permission and–
(audience claps and whistles) And oftentimes, it’s asymmetrical. We have these false
equations so Trump can say that the right-wing KKK
neo-Nazis is the same as people who are asking
for an inclusive society. Fundamentally wrong and so
yes, I think we should have these discussions and the
last thing I’ll say is this. There’s a German
philosopher named Habermas. He talked about what are
the conditions necessary to have a true dialogue and we
actually don’t spend any time with that, it’s just throw people together and let them and see who comes out on top. But I believe in talking
to people who are different but I also believe in paying
attention to injuries, paying attention to equality,
paying attention to, end by this, the Civil War,
Lincoln opposed the South and he said, “I actually don’t want a war “so if you will agree
to stay in the Union, “I will help industrialize the South.” They said it’s too late, he said, “If you will stay in the Union, “I will allow you to keep your slaves. “You can’t expand into new
territories but you can keep,” this was Lincoln and
they said it’s too late. And they said we want to
leave and Lincoln said, that’s not on the table,
so your point, Steven, in terms of there are
certain things are closed. There are certain things
that are off the table and I think that everyone here belongs should be a closed
question, that you can’t say that transgender people don’t
belong in this community, get out, so that’s what I would push for. It’s like and that’s why I
say the critical question is who are the we, and that’s the question that this country has been struggling with since its very inception. – So I see Erwin and Steven both wanting very much to say something (chuckles). – I do wanna address your
question, the difference between physical and emotional harm but I think one problem with
the discussion we’ve had is I think were combining
three very different questions. One question is what is the current law with regard to the First Amendment that you as chanc on
this campus must observe? Second, what should be the law with regard to the First Amendment,
which really what’s John’s talking about, and third, how should we all act in this context? I just wanna comment on each of those in light of the question you posed. Be clear, the law of the First Amendment now is that all ideas and views
can be expressed on campus. The campus cannot prevent or punish speech because it’s offensive, no
matter how offensive it is. Whatever you might think with
regard to the Nazis in Skokie, every court to rule on the
question held that the Nazis had the right to march in Skokie, no matter how much offense that caused. If the chancellor or the
campus were to try to prevent speech because they
follow what John believes, they will get sued, they will lose. They’ll be liable for money damages. They’ll be liable for attorneys’ fees and they’ll make martyrs of those who they’re trying to suppress,
so we have to separate what we might want the law to be in the ideal for what it actually is now. Second, we can then talk
about as John’s talking about and others are, what should the law be? And here, I do think I disagree with John, not in terms of his description
of the pain of speech, not in terms of the
description of the nature of the country, but in
terms of the basic premise what campus are about, I think
it’s the nature of campuses that there has to be
full inquiry and ideas. That’s what academic freedom is and it has to be that, that
if we’re really gonna have academic freedom, that kind of inquiry, all ideas and views have to be expressed. The alternative to that is for
a campus to be able to say, this is the truth as we see it and any other viewpoint
we can prevent and punish. And if John were in charge and
able to determine that truth, I might be comfortable with it. What we know is that the people
who are gonna be in charge might find my views or John’s
views to be too offensive. If Southerners in the early
1960s could’ve suppressed the speech they didn’t like as offensive, they would’ve stopped the
Civil Rights protesters. The only way our speech
could be protected tomorrow is to make sure were protecting the speech that we don’t like today and so in answer Chancellor Christ’s question, the law is and the law should be
to draw a distinction between physical and emotional harm. Now, in reality, there many
not be that distinction. Great emotional harm can
have physical manifestations but the law is clear,
while there’s no right to cause somebody to physically
fear for his or her safety, you can’t stop speech
’cause it’s offensive and will cause emotional harm. That then leaves the third
question: what should we do? Well, obviously, we should
engage in discourse like this. We should also always remember just ’cause of the First
Amendment to say something doesn’t mean it should be said
and also we should remember that we as campus
officials, as a chancellor, as a provost, as a dean also have speech. When there’s speech that goes
on that we think is offensive or inappropriate, we need
to speak out against it. We need to ascribe the kind
community we want to be but I believe we are far
better off as a university, as a society allowing the speech to go on than to allow anybody in
power to punish speech because it’s they think
it’s just too offensive. (audience applauding) – Steven?
– Thank you. So, yeah, I could have
some good rollicking fights with John I think ’cause
I think, for example, there’s a whole number, I
have a whole list of cliches that I don’t use and avoid
’cause I think they stop discussions and circumvent
and whites supremacy is one of them, although
the phenomenon is real, the whole complex is absolutely correct. Let me tell where we agree
to a certain extent though ’cause I think that might be more useful and try a slightly different
answer than Erwin gave. I don’t normally do this
but I’d like to state my bona fides on this question. Students here won’t know
this ’cause it’s happened I think 12, 14 years ago
but the adults remember so Trent Lott was a Republican
Senate majority leader and he gave a talk for Strom
Thurmond’s 180th birthday, whatever it was.
(audience laughing) And he said, the adults
remember this, right? You know the episode I’m, and he said, “Gosh, Strom, if you’d
won that election in 1948 “to be president, maybe we
wouldn’t have all these problems “today in the South or (mumbles)”
and it’s like what the? Right?
(audience chuckles) I think if you check the chronology, I was the first conservative
commentator to write publicly that he had to go and some
of my conservative friends disagreed and said, we can’t let the left tell us who our leaders are and I said, no, no, we’re not doing that. When somebody’s a blithering idiot, doesn’t matter what the
left says, we ought to say who can stay as our leaders, right, okay. It was not unusual back in the 1960s for a guy named George
Lincoln Rockwell to appear on college campuses, I’m not sure how many of you know that name as students. He was the head of the American Nazi Party until one of his own member
shot him at a laundromat in 1967, how these guys end, right? Now I don’t think he came to Berkeley but I know he came to Cornell and I know about his Cornell visit ’cause
I knew two faculty members there, one one was Allan
Bloom who opposed him coming. It was conservatives opposed him coming and the liberals, some
liberals opposed it too. It was not a strict left-right divide but the liberals wanted to
have him on campus, why? Because they wanted to confront him. I can give more examples like
this and that seems to me it’s faded from the liberal university. I hope that there’s no
fool here wants to invite Richard Spencer to come, you know, Auburn University had let him speak ’cause as a public university,
he went to federal court and said he has a First Amendment right. You have to let him speak but if he did, here’s the attitude I wish we had here. I wish we had the collective attitude, okay, he’s got a right to speak here. We’re gonna squash him like a bug. And I would join the rally to around, I’m not sure what phrase
is the right one to use, students we describe,
marginalized students today, groups who would be targeted and say, we’re not only gonna be your champions, we’re gonna show up and–
– Turn out backs. – That’s one way of doing
it, if there’s questions, by the way and I’m sure this will work. I have this line of questions
I would do with him, would conclude with saying
that all of your principles you state essentially
mean you’ve renounced your American citizenship
so I’m gonna regard you as an illegal alien who should be deported and see how he would take all that. (audience chuckles)
It’d be fun, right? A lot of people might disagree
about that but I repeat this attitude, I think
there’s much to you say. I think we we not, we don’t, I think we can make out the intent of people who come who
want to do people injury, emotional injury and otherwise, I think that’s absolutely intelligible principle. I do agree with Erwin
that once you make that an official policy and
let governments use it, I mean you really want
the Trump administration running with that doctrine? I don’t think so, I think
that’s as a practical matter, that’s a problem but I
think that the argument is a very good one and I
actually strongly agree with it. – So I’m now gonna ask
a question that goes on a different direction
as these are the questions that keep me up at
night and so I’m looking for some advice from
this panel about them. So we have two conservative speakers, actually one is a set of speakers, Milo Yiannopoulos is going
to bring speakers with him starting on the 24th of September. Benjamin Shapiro is coming
on the 14th of September and two arguments that have
certainly been made to me about restricting this speech, I’ve consulted with a lot
of lawyers and they all say, we, if these have been
legitimately invited speakers by student groups, both of which are, you have to let them
speak but the arguments for cancellation of an event
are either that it is going to cause an imminent threat
to the safety of the community so my first question is what
would constitute that threat. And the second is that
there should be some people, say some reasonable limitation on cost. It’s obviously won’t
surprise anybody in this room that’s it’s going to be
very costly to put in place the security precautions
we think are important. So do you think either of these, safety or cost, should be limitations on speakers brought to campus? I might say with Milo, one of
the arguments that’s been made to me is this is going to
be enormously disruptive of the campus’ functioning
for those four days. If you were me, how would you be answering those questions?
(audience and Carol laughing) – Let me jump in here for minute. I think there’s a lot that you could do but I agree with her wings
recitation of the law. I don’t agree with a lot
of what else he said. I do also want you to note a
lawyer’s trick he just did. (audience and Carol laughing) He basically defined me
in a way that’s not right and then he argued against it. And John, he would say truth, I’m not talking about the truth. So I talked about engaging
with conservatives, engaging with people who
are different than you but there’re bounds to
it, it’s not unbounded. So I’m not saying you only
have people you agree with and the thing that the
Supreme Court and most people who claim the absolute
priority of the First Amendment don’t really deal with
injury, they trivialize it so what Erwin did when he
went back, started talking about offense, I’m not
talking about offense. I’m talking about you can
and any medical person, you can check with this, the difference between physical and
psychological injuries is small and sometimes even greater
so what I would say is that first, in terms of
cost, contain the costs, so you might say, okay,
this is a big-sized room. Maybe we could get a
little smaller room and– (audience chuckles) And for safety, we can’t have
people sitting in the aisles or whatever but I mean you have
a right to actually control time, place, and matter
and that’s the current law but I teach in the law school with Erwin and I teach students how the
law is constantly evolving. So I think from my
perspective, to be candid, it’s a cop-out to just say
this is what the law is. Not for you, chancellor–
(audience member whistles) You may be stuck with
that, but you’re not. You’re here to actually make a new world. You’re not here just to inhabit
the world that we messed up. (audience cheers and applauds) – David? – I’m certainly in favor of
making the world new (laughs). I don’t think we have
the, we can start now. We won’t be done by the end
of this month frustratingly. To come back to the question of what to do in the short term, I mean I’m not sure that I have an answer, given how close the constraints are on what the law demands of us, what are precedent policies
are, since I gather that if we were to say, oh,
no, we have a new policy, that would be a prior
restraint on these events. In this situation, I think that the hand has more or less been dealt. I think a medium-term question while we are pushing to
redefine the conversation at the Supreme Court about the relation of speech to injury is how here on this campus, we can reshape the conditions of events such that speakers whose
only goal is to provoke are not entitled to the
steps of Sproul Hall, based on the invitation of a single registered
student organization. Whether that should be done via the firm way by redefining policy or by a give-and-take, the dialogic way that would hopefully make registered student
organizations less interested in demonstrating their
rights through outrage and more interested in demonstrating the value of free speech
through engagement and as I said before, the drawing forth in a multiplicity of voices, I do not know which is the more feasible. It seems to me that the
latter is the more valuable. (faint speaking)
– And then Arlie. – I think my advice to you
would be this is a place where you should follow the law. If you don’t follow the
law, you’re gonna get sued. You’re gonna lose and
what’s gonna happen here is you can make martyrs
of those very individuals who you’re silencing,
what Milo and Ann Coulter most want is to be kept
from speaking on this campus (audience clapping)
and if you do that, you’re empowering them,
those who think of themselves progressives cannot see freedom
of speech just to the right and let them be the champions of speech. Now in answer to your
two specific questions, the law uses the word reasonableness. You have the duty to
take all reasonable steps to ensure that they’re able to speak so you have to take
reasonable steps to ensure that they can speak
consistent with public safety. If despite all reasonable
steps, you conclude there is no way to allow them to speak and preserve public safety,
then you can stop them from doing so, you have to
show that it’s a last resort. You have to show you didn’t do
so on the basis of viewpoint but your paramount duty as
chancellor is to protect the safety of the students,
the staff and the faculty on campus, you have to
expend a reasonable amount of money in order to do this. Now, what’s reasonable
is gonna be assessed in the context and there is a point at which you can understandably say we couldn’t spend any more than this but there is a clear burden on doing so and what’s important here to remember is that freedom of speech
also has been crucial for advancing civil rights,
for stopping the Vietnam War. It’s not just a tool of
oppression and if we don’t allow freedom of speech in these instances, then it really does empower
those who we’re most afraid of and give them a tremendous
tool to use against us. – Arlie? – I have to say I really
agree with what you just said but I also agree that
psychological injury is real and important and I,
therefore, think we need a series of public debates on what psychological injury is and not presume that all people are on board with us ’cause they aren’t and
so have a public debate. I’m thinking of the debates on
whether the U.S. should have gone into Iraq and you
had Christopher Hitchens who said yes, we must, in Pauley Ballroom, you must remember that
there was Mark Danner on the other side and they
went at it, it was a debate. Now you might be offended,
the idea that wait a minute. We’ve already, we’ve
come a long way on this. And so you’re talking to people who don’t agree with
what we know to be true but I think that’s where
we’re at as a country. I often had that feeling talking to people in Louisiana over those
five years, thinking, wait a minute, this was a
conversation I remember having in 1962 and you’re
still with it, you know? And sometimes someone would say to me, oh. I’ll give you an example. I interviewed a guy worked
in, born on a plantation, white, Cajun, 60s, Tea
Party guy, Trump guy, and born on a sugar plantation. He worked in oil all his
life so it’s the old South and the new South and I’m asking him, we’re out on a fishing trip, I
say, okay, race like I really (chuckles) let’s just talk about race. I don’t think I’m
getting a clear read here and he said, oh, I’m a reformed bigot and so I said send what’s a
reformed bigot, what is a bigot? Well, a bigot is someone who hates blacks or uses the N word, I never hated blacks and the N word, well in
the 19, I did use it. Blacks also used it but now
I’m offended since the 1960s, he said, been offended and on Facebook, if anyone uses that word, I defriend them so reformed bigot, okay, so I say, what was it like when your school, public school in
Donaldsonville, Louisiana, in the lower reaches of the Mississippi, it’s now called Cancer Alley
and Donaldsonville High, tell me how you experienced integration. He said, well, in high school,
the first freshman year, we had two blacks and in senior year half of our class was
black, and asked him, so did you make any new friends? And you know what his answer was? A long silence and (faint speaking). You’re making me think,
you’re making me think. In other words, the conversation,
that was a new thought to him so, okay, racism,
sure, but the fact that he hadn’t even thought about it, we need to talk about it,
we need to certainly there, that conversation needs
to be moved forward but even as you’re saying,
the whole nation is stuck here so we do have to go back over territory we think is settled and get that out in the form of public
debates, many, many of them, Berkeley the leader.
(audience claps and chuckle) – So now, I’m gonna throw this
open to questions from you. It’s gonna be hard to pass
the mic around but we’ll try. – Thank you. Oh, perfect.
(audience laughing) Okay, I’m gonna sit here, yeah. Hi, thank you for being here, I’m Luna. So I will take John’s
proposition one step further and Dean Chemerinksy, please
don’t hold against me. So I think that we have an
issue of definitions here. I don’t think that this is a
conversation about free speech or different views or even how
UC Berkeley as a university and us as students should
respond to next week’s event. I think this is a more
fundamental question and to answer it, I
think we should first ask what the object and purpose of the law is, in general and specifically
the First Amendment. I think the purpose of the law
is to achieve certain values. The law is at the service of those values and not the other way
’round, so if the law is not an ends onto itself,
why do we protect free speech? Not because the forefathers
had an absolute truth handed to them and they just
sat down and codified it but because they sat down, talked about it and considered which
values we, as a society, agreed we wanted to pursue. So I think perhaps this is
a time when we should ask ourselves this same question
that the forefathers asked. One, what are our
values, this is a problem of definitions, we have
to define the values that we want to uphold as a society. If, as John said, the values that we want are justice, fairness, belonging, and a we the people, then
how do we achieve them? The law is not unquestionable,
the law is not inevitable. The law is there to serve societal needs so do we achieve these
goals by allowing each other to engage in hateful
speech that has very real and tangible consequences
beyond emotional harm? I don’t know, if that is not
a way in which we achieve those values then I want
to push against the notion of the inviolability
of the First Amendment because after all, and
this is the last thing I’m gonna say, to amend is,
and I quote, to change a text in order to make it more
accurate or more fair, thank you. – Okay. – Other questions? Yes, you in the purple shirt. I think that’s purple. – [Bill] I don’t really need a microphone. – I think, people outside of this room can’t hear us without the mic.
– All right. Hi, my name’s Bill MacGregor,
I work up at the Lawrence Hall of Science and I’m the other
conservative in the room. (audience laughing) Yes, and I also wanted
to say that I find it both dangerous and threatening, the left’s attempt to put anybody who supported Trump as
a white supremacist. I think that is very
unhealthy for the nation. I also think that when I get
an email from the chancellor that says regarding the Trump’s decision to end DACA that says, we call on the Berkeley
community to get together and respond in whatever way they see fit. Any way they see fit, I
think, is broad territory and I read that as kind of a willingness to tolerate violence and
I think that is unhealthy for the community so
what I would like to know is what is the best response
from a top administrator to a situation like
the appearance of Milo? My view is we deplore your
views, we uphold your rights and leave it at that, you know? I think there’s been a wink,
wink, nod, nod towards violence and I find that very
disturbing, thank you. – Well, I wanna be very clear
that I am very much against violence, I won’t tolerate
it, I certainly didn’t mean those words in the letter
to imply that I did. (audience applauding) You with the computer. (audience murmuring) – [Mukund] Hi, I’m Mukund,
I’m a law student here at Berkeley, I wanna thank
you for the great panel. I think that there are some
things in your discussion about free speech at
Berkeley that were left out and so I’d like to
expand on some of those. I wrote on length about these
in a September 5th op-ed in the Daily Cal criticizing
the chancellor and mayor for obstructing anti-racist
speech on August 27th when white supremacists came to Berkeley and there are several counter protests. this is a problem because the
discussion about free speech on college campuses has been entirely about conservative speakers
and right-wing provocateurs and not about progressive
students and faculty who have been silenced for their attempts to use free speech to protest. Just to give a timeline
on this, on August 23rd, Chancellor Christ made a very
widely publicized statement on free speech saying that
free speech is who we are but two days later, she sent an email to the campus endorsing
the city council’s advice to quote, stay away from
all of downtown Berkeley and to not attend protests. One day before August 27th,
this was on August 27th, the coalition of 100 unions
and community organizations planned to hold a safe Bay
Area Rally Against Hate on Crescent Lawn and one
day before that rally, UCPD barricaded Crescent
Lawn and this coalition, these thousands of people were
forced onto Oxford Street, which made it more dangerous
because of vehicular accidents, not accidents, I mean the murder that happened in Charlottesville. So we had a rally on Oxford Street. We protected ourselves
with the security team and it was safe, on August
28th, and this is two days after Chancellor Christ told
people to not go to a rally, she said that by pushing
people onto Oxford Street, she aimed to protect our campus and community and she applauded the quote, “thousands who protested
peacefully in Berkeley.” I’ll be quite honest, I think
this is shameful opportunism to, on the one hand, encourage
people to not protest, to push them off campus
when they try to use their free speech rights and
then to say that you applaud their protest, so the
university has estimated that it’ll cost $13,000 to
secure and staff Zellerbach Hall, which is where Ben Shapiro
is going to be speaking. I’m curious to ask Dean
Chemerinsky and Professor Powell if it’s legal to give a
one-time offer of $13,000 to bring a political speaker to campus. And my question to Chancellor
Christ is if you’re willing to pay to much money to
staff Ben Shapiro’s event, would you be willing
to pay that much money, my group the International
Socialization Organization wants to bring Steven Salaita to campus. He was fired from the
University of Illinois in 2014 for sending out tweets critical of Israel. He would have a lot to
say about free speech on college campuses so if
we bring him to campus, would you also pay $13,000 to secure an adequate venue for him? Thank you.
(audience applauding) – Actually, the security
costs in Zellerbach are being paid by the BCR. – [Mukund] The venue and
staff and costs are being– – What?
– Paid by the university. – The venue and staff–
– The venue and staff and costs are because I
believe that it was critical to give Ben Shapiro the opportunity to speak on campus and
it was the one venue that was available. Yes, in the–
– [Woman] You didn’t answer- (audience murmuring)
– You were asked questions. – What?
– You were asked questions. – [Woman] Yeah, he asked other questions. – Would you pay the same amount? – Would I pay the same
amount, I certainly would pay the same amount for a speaker
from a different point of view and, in fact, I already
have a made a commitment to the Division of Equity and Inclusion for a speaker series which
they’ll be in charge of doing and there’s another group
that’s needing to plan a point-counterpoint speaker series with people with very
sharply divergent views to talk to each other. Okay, yes, in the front. – [Woman] I don’t have anything
nearly so well scripted or planned (chuckles) to say
but there’s such a difference between words that we’ve
heard such as belonging, common ground, who are we, engagement and squash them like a bug, right? – Yeah.
(audience laughing) – [Woman] Okay, so I know you
don’t mean like literally. – Right.
– Okay. I’m just working on the
assumption that none of us are about violence here,
okay, I’m interested in the emotional slide from taking offense into
violence, which obviously happens pretty easily in heated times. I don’t think outrage and
free speech are in opposition to each other, which has
sort of been presented also. I’m really interested in silence as a kind of freedom of speech, maybe related to turning
your back, like you said. Go to a speaker and turn your back. That’s something, right? A lot of my friends felt
that an appropriate response to some of the well publicized, highly anticipated protests
in the Civic Center would be really encouraging
people just not to go, to let people you disagree
with talk to themselves and not create a news event out of it, like you said, the thing
that these people want most is to be martyred so I’m really
torn between the extremes of just saying if I really disagree and I don’t wanna be violent
and I don’t wanna get hurt, I should just stay home, write something really eloquent, do something constructive
that supports my beliefs in another way, be silent
and that’s a way of being, exercising my free speech or
getting out there (chuckles) engaging and hoping I
don’t get hurt, right? So I don’t know if that
seems, if that’s passive or very consciously active, to turn one’s back, to not show up, to not argue face-to-face, to listen but not to give
others the opportunity to… what’s the word? Silence me, right? Okay, I hope that made some sense. – Yeah, David?
– I didn’t want to suggest– – And then Arlie.
– Sure. That outrage and the First
Amendment were incompatible. Clearly, they’re, you know
(chuckles) all of the victories that progressives have achieved
through freedom of speech and through freedom of assembly have called for outrage to fuel them. I wanted to suggest that deliberate provocation of outrage by injecting a speaker like Yiannopoulous into the campus environment is
not the most constructive way to produce dialogue. I think outrage as a
response to Yiannopoulous is presence is entirely merited but I don’t think it’s the only way that we can choose to respond to that sort of barnstorming of a professional provocateur. I think coming and yelling back, affirming our own values in his presence is entirely among the right things to do. You’re right though
that that confrontation invites just the further escalation towards all kinds of injury, both for the people who are present, for the people who are taking
part in the confrontation and for the campus more broadly as the sort of atmosphere of theater may envelop not just Sproul Plaza but the rest of the campus. I think there’s a big
difference between showing up and turning your back and going to another venue and using your voice and your rights in a more productive, excuse me, in a way that is directly productive and about a different topic and I think that both the silent protest and the desire that Arlie
suggested to produce counter-programming activities
that actually celebrate our rights and our voice in a joyful way are another option. I know that the departments at our more creative end of the campus are thinking about creative
counter programs even now. My vote is for the
Hamilton sing-along but– (audience laughing) We’ll let you know how it goes. – Arlie?
– Yeah. You could go to the offensive presentation and all hundred of you
turn around to express it but you can have something
written on your back (chuckles) as to what you think
and backing up a little, I’d love to see the offensive lectures one of a dozen lectures going on that day. In other words, more happening. – Counter-programming.
– A counter-programming, exactly, it’s as if, without intending it, the Berkeley campus culture, a little bit, has been influenced by the public culture and the media, which is highly polarized and where people aren’t having
respectful conversations about meaningful issues,
they’re yelling at each other and verbal bombs are going back and forth. and so in a way, a lot of
people are ducking their heads and lying low and instead
of being polarized like the national culture is, let Berkeley be the leader in rising up and creating a great deal of debate in every kind of form,
I mean let’s make it up and in a way, therefore,
be an an alternative to the national culture,
not a reflection of it. – We have lots and lots of hands up. – [Woman] You’re not going to say anything about what that means to squash the bug. – I meant that figuratively, right? What I meant was have a robust attitude. Here’s what I mean, let
me do that more seriously. Sorry, I was being a little flip. What you mean is that
universities ought to be the best institutions for
confronting this kind of problem. That’s the premise of what I’m saying and I think the university are losing this ability for a whole
bunch of reasons, I think… Well, I complain a lot of
what demagogic speakers out in a non-university
audience do a lot more damage and afflict a lot more hurt,
I think a lot more mischief so my point was when I said
squash them like a bug, I meant have the disposition
that we have contempt for you. Ridicule, by the way, is always good. We’re going to out-argue you. We’re gonna have some counter-programming. We’re gonna have a whole
menu of things to show. You give us the best and
you’re going to run out here. The attitude I’m gonna have,
you’re gonna run outta here humiliated, that’s the
disposition I wished we had. Now, that’s not perfect
and as I say, I think there needs to be some
thought to the people who are genuinely aggrieved
by someone who comes. I said one more thing to
Chancellor Christ about this. One practical difficulty with
what, when is Milo coming? Two weeks, right?
– Yes. – I don’t know the guy, by the way. I can boast that I was a victim
of one of his tweet storms once for a criticism
I made of Donald Trump so I can wear that as a badge of honor. One difficulty that you
have, the university has is which Milo’s gonna show up? He’s a Jekyll-and-Hyde character
and I would suggest this is if you have some time and
inclination, go on YouTube and look up his name, he’s got
hundreds of YouTube videos. Pick 10 at random, you’ll see a Milo who’s in his Cambridge
University business suit doing an Oxford-style debate pretty sober. His hair’ll be dark, you’ll
see the Milo with a feather boa with his hair dyed white
and carrying on like crazy. You can see him on some news shows where he’s running circles
around the news anchors, I think. I mean the guy’s very talented. Of course, I have also,
there’s one from his appearance at University of Massachusetts Amherst two years ago where his speech was five seconds long,
does anybody know this one? He got the microphone, paused
for a moment and he said, “Feminism is cancer,”
and then he walked off. That was designed to
blow the place up, right? That’s not the Milo you
want and I have a hunch, although I don’t know
this, as I don’t know him. I have a hunch the one who
shows up in a couple weeks may be better behaved, I hope
I’m not wrong about that. I could be wrong about that but we’ll see. He’s a Jekyll-and-Hyde character
and that doesn’t even span the range there, so there’s a difficulty because we don’t know how that’s gonna go. – The woman in the black shirt
right in front of the camera. You.
– Yeah, thank you. I just wanted to get
(faint speaking) my name is Leigh Raiford, I’m a professor– – [Man] Microphone, please. – [Leigh] And I have two questions. The first is many of
our students and faculty have been attacked on social media, have been threatened violently. People threatening to
come into their classrooms and set them on fire for expressing their free-speech views in social media and so one of the things
I’d like us to think about are the ways in which the
question of free speech is fundamentally and radically altered by social media because
I think that’s something that we haven’t actually addressed and I think that may also
be one of the reasons that millennials have
a very different kind of relationship to social media. Secondly, on that question of violence and picking up the question
of imminent safety, safety threat, it’s not just
about abstract students, abstract faculty, it’s
also about our staff, some of whom are here today
who have to come to work in what is ostensibly going
to be a hostile workplace and it’s not just Milo or
Ann Coulter or Steve Bannon. It’s their supporters that
create a problem for us, that create issues of
safety and this is not just, again, this is not just abstract. Our staff are the first
people who have to deal when our printers get hacked with racist and violent prints that just
spin out all of our paper with swastikas et cetera, right? They have to answer the phones
when we’re being threatened in our departments and also, how do we, when this is happening, I am
really concerned about safety. I’m also concerned
about safety as a parent of a college freshman, I don’t want my kid to have to engage that and also when we push it off campus, we push it next to Berkeley High, right?
(audience murmuring) And Berkeley Community
College so we’re making our surrounding community vulnerable so I want us to think very carefully, I do actually think that
this is an imminent threat to our safety and I want to figure out how we can address that and frankly, I’m proposing that we boycott,
that this is not safe for us and so students shouldn’t
have to go to class. I shouldn’t have to
teach in an environment in which for a week, right?
– Amen. – [Leigh] That this is
going to be a circus and I don’t know if
somebody is actually going to follow me home and
knock me over the head. (audience applauding) – So does anybody on
the panel want to speak to those questions? – I had a couple of thoughts,
so first of all, thank you. And it’s helpful because to
me, sometimes, as you said, these are too abstract, there
was a news hung in a school, a local high school here yesterday. You had the secretary of education
saying she’s rolling back stuff on terms of protecting women, in terms of sexual harassment
so these are threats and it’s actually coming from the top and I respectfully suggest
the goal, the solution is not to be silent,
that this is something much more pernicious
than just even speech. This is a concerted effort
and so one of the things I hope the university will
do in addition to thinking about how to protect students,
faculty, our environment and I think, yes, Erwin’s right in terms of you have some
constraints in terms of the law but affirmatively, what do we stand for? What are we as a university,
and we stand for, yes, we stand for free speech,
that was one of the reasons I came out to Berkeley or
out to California in 1965 but we stand for something else as well. What’s our affirmative values that we can really sink into and make those animate? So the safety issues are real. People are afraid and they should be and I don’t think the answer is stay home, to withdraw, I mean your point in terms of democratic
institutions die if people, if everybody withdraw,
if everybody goes inside so I’m not saying there’s a easy solution but I hope we really grapple with this. How do we really make
this a safe community day in and day out, how we
actually animate all our values? And I would be concerned
if we only animate the value of free speech. (audience applauding) – The man with a gray shirt on the aisle. – [Jos] Thanks very much,
my name’s Jos Lavery. I teach in the English department
and I’m currently teaching a course called Genres of Free Speech which is designed to address these issues and I’m really grateful
especially to colleagues who’ve address issues of
safety for staff and faculty in the context of mounting violence. I think it might be helpful
since there remains, I think, a degree of sentimentality around the idea of offensive ideas to
clarify the circumstances that we were facing
when Milo Yiannopoulous was headed to campus that
caused me and Professor Landreth and others to sign a letter
asking for his invitation to be rescinded and that was
not merely that he had appeared in front of a campus and
said feminism is cancer but that at the University
of Wisconsin in Milwaukee, he had targeted a trans-woman individually for sexual harassment in front
of a large group of people, had projected a photograph of this woman, had traumatized this
woman, and at the moment where UC Berkeley was facing
its own internal debate about the limits of sexual
harassment discourse on campus, it struck me and a number of other people as massively important that
we protect our students from that kind of direct targeting. This isn’t, in other words,
a question of the distinction between hateful ideas and legitimate ideas but the distinction between
speech and violent conduct and harassment, and the
truth of the matter is that at this moment, this whole
discourse around free speech is at least partly designed
to bring harassment discourse more fully into legitimated speech. That is the stated goal of
people like Milo Yiannopoulous who target millennials,
call them snowflakes, try to attack and embarrass
and humiliate people in any number of grounds,
the purpose is not to debate outrageous ideas and for us to enjoy that but really to legitimate
and normalize a culture of targeted harassment of
members of protected groups. (audience clapping)
So to that extent, I think one of our responsibilities as a community is really
to think not just about how do we recognize freedom
of what kinds of freedom do we want to cherish and
protect but how do we stand up for community values of
minorities in our community when they’re under
attack not by millennials who misunderstand Twitter
but by the executive branch of the U.S. government itself?
(audience clapping) Thanks. – Erwin, would you talk a
little bit about, I think John raises a really interesting
issue of when it is that speech in a public setting like this
becomes individual harassment? It’d be good to draw that distinction. – Sure, to be clear there’s
no First Amendment right to reveal private information
in public about somebody, that if somebody would reveal
very personal information, that’s not speech protected
by the First Amendment. There’s no right to say false
things that are injurious to the reputation of others in public. There’s no right to say
things that cause people to reasonably fear for their safety. So if somebody is getting email messages that are threatening, I
would hope that the campus would investigate, take
disciplinary action of the student or faculty
member, turn it over to law enforcement authorities
if it’s somebody else for prosecution ’cause there’s no right to make somebody fear for their safety. There’s no right to engage or be regarded by the law as harassment,
that I said earlier, harassment usually requires
that it be directed at a person, that it be invasive, that interfere with their
educational opportunity. Now, the usual remedy of the
law when these things happen is that the victim can
sue for money damages. The problem with that is victims
generally don’t wanna sue for money damages, they
want it all to be over. They don’t want to have to
take all of the time and effort of going through the legal system. What they’d really prefer is if the campus would just prevent that speaker from coming on and speaking at all. The law doesn’t allow that,
it’s called a prior restraint. Now I would love to debate
John about what would be our ideal in terms of society
with regard to speech. Would we be better off if the campus had the power to prevent the speakers that they find offensive from being there? We might think that’s
our ideal but I so worry that that’s what’ve kept
the students from protesting segregation or from
protesting the Vietnam War, that when you give the
government the power to censor the speech that we find
offensive, it’s gonna be used against us, but the
basic bottom-line answer to your question is the
law generally doesn’t allow preventing people from
speak because we think that they’re gonna say something
that unprotected speech. – We have time for two more questions. Let’s see. You in the red shirt. – [Man] Hi, I’m (faint speaking). So something that I’ve been
trying to sort out for myself. You can imagine a situation
in which thousands and thousands of people
each individually have, will say something that is
clearly protected speech. I don’t like this person, I want you to go away but in aggregate, it adds up to something that feels like harassment. I’m curious how to think about that. – Does anybody wanna address this? – I think it’s an excellent question and it gets back to
Professor Raiford’s point about the real damage that anonymous targeting through the internet can cause. And we’re talking about
this because Yiannopoulous was a master of this particular technique of singling out an individual through an apparently innocuous tweet
back when he was still allowed on Twitter that would then direct this sort of subterranean
ecosystem of trolls to open this fire hose of anonymous hatred, anonymous harassment. The law, as it’s been articulated here, has just seems not to have caught up with what speech is now, the way that speech is no longer mediated by a speaker who speaks as
I am speaking to you now or by an audience who is present. And this, I think, is an opportunity for a conversation about present values and present technology to work together to try to push the law to some more sophisticated account of the harms that can be projected across virtual media,
through which so rapidly, so diffusely, so intensely yet without any kind of accountability under the current legal paradigms, either for the platform or for the individual
pseudonymous speaker. – In the green shirt,
you’ve had your hand up for a long time, you. – [Susana] Hey, I’m Susana
and I’m from Tennessee so I’ve been participating
in free speech (chuckles) for a while and what I wanna know is the people coming
this campus, like Milo, for example, he puts the
number at ICE up on the board and says if you know, as he
calls them, illegal immigrants, then call this number,
this is gonna hurt people in our community that I care deeply about and we’ve said how by
turning these people away, we would make a martyr out of them but we’re not gonna change the
law until we fight the law. Shouldn’t we take this
opportunity and be a leader and say we’re not gonna allow people on his campus who will hurt our students? Wouldn’t us fighting against them make us a leader to try
to counter this speech? And also, we have pamphlets
for a counter-protest that y’all were talking about
so if anybody would like them, we have them, thank you. (audience laughs and applauds) – (chuckles) Would anyone
like to address the question? – I find so appealing the notion you say but everyone in this room should be clear about what will happen,
if the campus were to say Milo’s not welcome to speak
speak to the reasons you have, Milo and his lawyers will
immediately go to court. They will immediately get an injunction so he’d be allowed to speak. The campus will have to pay
Milo’s lawyers attorneys’ fees and perhaps some money damages as well. What’s then been served by excluding Milo? Also what will happen will be Berkeley will be the poster child for
the suppression of speech. Was Berkeley, as a
campus, and its reputation enhanced by what happen last January? I don’t think so, so I think what you say may be a very romantic notion. Let’s stand up for our
community and keep Milo from speaking, I’m telling
you if the campus were to try, it would ultimately be
very counterproductive and it really wouldn’t
accomplish what you want. (audience clapping) – I think we have time
for one more question. The man in green in the corner there. – [Woman] Come on (faint speaking)
come on (faint speaking). – [Ruben] (chuckles) Sorry (chuckles) You say don’t get me fired?
(woman chuckles) Hi everyone, my name is
Ruben ah-ehem-de-dem. So I’ve been on campus now 10 years and there’s been a couple
of massive protests, demonstrations and all that
and in each one of those, there was events just like this and there was beautiful
speech and for those of us that have the privilege
of showing up, we can, and many of us who have
to work and can’t come to these events, couldn’t
come and their voices weren’t part of that
conversation, which is okay. I understand. What I don’t see us spending enough time and I appreciate the clarification
about some of the way the council is about safety
and cost to the campus and in that parameter, I’m
curious if cost to the campus is staff time and the
over hours that people are having to spend in preparation
for all of these things and is not considered in that
and their emotional distress? ‘Cause some of them are being asked to do stuff that we didn’t sign
up for and it’s not in our job description but we
have to do now all of a sudden. There’s, I think, over
1,000 student organizations on campus and just two
are taking up the time of the majority of these
staff and the resources that are being allocated to
two student organizations aren’t been equitized amongst
other student organizations that have just as much, if not more needs that are imminent threats
to their well-being in many different scenarios. Are all of those costs
part of that conversation? And the other additional cost
is what happens to the student that is being encouraged to show up and to be public and to voice your opinion and to be engaged, shows up, is injured or injured someone else,
and then find themselves in a position that they’re gonna end up in academic probation or dismissed and then nobody shows up to
that student a concern hearing. Nobody shows up to that
session in the courtroom because I’ve been in that
courtroom and nobody shows up. And I also know that when I
show up to these protests, 100 faculty might have signed that letter but were 100 faculty present that night of Milo being there and being a protection of the students that were there? Because when we say we need to act better and be a university in those
moments but then we militarize the campus in that
defense, then what are we being better of in those moments? And when you militarize the campus, you’re dealing with the unconscious and conscious bias of the
police and militarization that targets people that
historically have been vulnerable already so when you add
all of those things up, when do we have that conversation? And do we have the expenses ready to go for all of the injuries
that that’s going to happen and in the moment of worst-case scenario of somebody getting run over
or somebody getting shot and somebody getting killed, what’s the chart string to pay that off? (audience applauding) (Carol chuckles) – Yes, we’re very aware of the burden that is on staff who have been working with these extraordinarily
challenging events and we’re doing our best
and really expending considerable resources to ensure
the safety of our students. We don’t want anybody to be hurt. Well, thank you, this has been exactly the kind of conversation
that Arlie was asking for, conversation which clearly
not all of us agree about all these issues but
I think that we have to have more of these events in which
we can talk both honestly and with thoughtfulness and
civility about this issue that’s so important to all of us. So please thank the panelists again. (audience applauding and cheering)


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