tv CSIS Discussion on Free Speech National Security CSPAN November 16, 2018 11:49am-1:00pm EST
making race in the american south. on sunday at 2 p.m. eastern on american history tv the history of cot done in memphis during the mid 19th century. and then a visit to the national civil rights museum. watch c-span cities tour of memphis saturday at 7:00 p.m. eastern and sunday at 2 p.m. on american history tv on c-span2 as we explore america. now a panel discussion on the intersection of free speech and national security. the center for strategic and international studies recently hosted an event looking at that topic. it's just over an hour. >> all right. everyone, thank you for coming out. i appreciate the great turnout this even. i'm tom, i am a senior fellow here at in international
security program at csis. -- [ inaudible ] for various reasons we got topic of perennial interest so there's never any things to say about this. we've heard a lot in the news lately about speech and security and the press of course. i'm thinking in terms of prosecutions of the press, lots of leaks, all that is the associated cultural dynamic associated with them. so that's kind of what today is about. there's some perspectives that we'll hear to help think about those. it isn't necessarily the typical panel on these that you might hear about for shrivel lcivil l
to think about the relation of free speech to a free society and how those, as i said, cultural and other dynamics shape on how we think about the press. i want to acknowledge our partners for this evening's event. first of all, jack miller center which sponsors constitution events and our friends at carnegie mellon university. sort of a bit of logistics in case we have to exit the building for some sort of emergency -- >> national security emergency -- >> yes, national security emergency. just look to me and i'll take care of you. so why don't we get started. we'll start from my side and work down first up is a senior
fellow at the hudson institute who wrote a book eight years ago entitled "necessary secrets, national security, the media and the rule of law." that was in 2010. i've taught that book he'll have thoughts about the current policy environment. >> thanks, it's a great pleasure to be here. i actually was a fellow here in 1990 to 1994 and i was working on russian affairs and i started a publication called soviet prospects and such was my profound knowledge of the field that four months later i had to rename it post-soviet prospects. [ laughter ] i want to say a bit about how i came to the subject of secrecy which is not as a policy analyst but as a new yorker who had
lived in new york through 9/11, had kids who were riding the subway, i was riding the subway. along came the attack in madrid on the transit system, killing 53 people. the following year in 2005 we had the attack of the -- london killing over 190 people. people in new york riding the subway thought about such things and at the end of 2016, the "new york times," james risen and another reporter published a story revealing the existence of a highly secret counterterrorism program, terrorist surveillance program. it was designed to intercept the communications of al qaeda terrorists and i at that time was reviewing his forthcoming book which covered the same material and as i was reading it and reviewing it the question came that came to me was is it legal to publish such highly
classified secrets? secrets that revealed -- the revelation of which place us as new yorkers and all americans in danger. i wrote a short piece arguing it was illegal and that bill keller of the "new york times" should be prosecuted. my position has evolved quite a bit since then, particularly in writing a book but i certainly, from that case, it's very clear that the leakers involved if they had been apprehended would be subject to criminal liability and one of risen's sources, jeffrey sterling, was, in fact, prosecuted and sent to prison for five years. he's now in a halfway home here in d.c., i believe. there's also the question of whether the government could compel james risen to reveal his
source sources as they did with judith miller and the valerie plame ordeal. i think the law is clear that it didn'tdom th docome to that in case, but it's possible to subpoena and compel a journalist to reveal his sources. there's no national federal level shield law that would protect journalists in that case. and finally the question is whether journalists themselves can be prosecuted and there are statutes on the book which make it a crime to publish certain kinds of classified material. not all sorts but narrow sectors including atomic secrets and communications intelligence. now the times story on the surveillance program was a communications intelligence program so that i think they were vulnerable but in the event, the bush administration didn't proceed with a
prosecution and i think in retrospect that's a great thing and we've never had a prosecution of the press in this country and i think we should be proud of that. we came closest during world war ii when the "chicago tribune" revealed after the battle of midway that the united states had broken japanese codes the prosecution didn't go forward because they didn't want to draw attention to the leak. now if i was hawkish about leaks and prosecutions of leakers in 2016, my position has evolved because i could not have imagined that we would be living under the trump administration and where i think the ethics of leaking are reversed. it's always problematic for an individual bureaucrat to take it upon himself to decide what is public and what's not in violation of the rules but we have an executive that is in effect waging war on the
constitution or grossly violating its norms. we depen upon those leaks to learn about what is going on in the administration and we've seen some spectacular leaks and some have involved sources and methods and may have compromised sources and methods. so for example the leak that revealed that general flynn had been negotiating over sanctions with ambassador kiss llyak was based upon an intercept and our channels -- our interception capabilities may have been compromised. but nevertheless the public learned a great deal, but i think in the end we really -- trump is violating norms left and right and approaching illegality in some of his conduct. we have to resist mirroring him lest all the institutions collapse and we lapse into lawlessness but i think that
leaks are -- as a kind of form of civil disobedience are very valuable in this moment. >> great. well i'm going to come back to you with how your position has evolved but right now i'll turn to melanie marlo,we, the co-author of the obama presidency and the constitutional order, has another book on the trump presidency and the constitutional order. we've had projects together, including a book on national security law coming out next year. she'll be talking about the history of the issues to putts the current situation we heard about in a little more context so overto y to you, melanie. >> i want to talk about the rights of citizens to speak about their government in times of war. we have mixed feelings about speech and war. war is the most serious objective a nation can undertake. people will die, maybe a lot of people. a lot of treasure will be extended. important other national priorities will be put on hold
or rejected entirely and because it's so encompassing, governments want and generally need the citizenry behind them. but what if the war isn't going well or going as well as it should be? or what if it's wrong in its goals or perhaps its methods? so shouldn't we be sure it's the right thing to do. the public and government deb e debate, no matter how high-minded or low might be legitimate and valuable for good decision making, but others will see it as aiding the enemy, letting adversaries know we are weak in morale or ability and cause more time to be spent in conflict and more american lives to be lost. so these questions about speech and national security. what's appropriate and legitimate for the government to prohibit or allow have a history as long as the country itself. so against the backdrop of turmoil between france and england, the quasi- war that we were having with france and
discontent between republicans and federalist at home in 1798 the sedition act was signed. it made it a law to write false, scandalous or sedition writing. this was used exclusively by the in-power federalists to prosecute their enemies, the out-of-power republicans. they used it to suppress publishers, members of congress and ordinary citizens from making comments about the president. there was a parade and someone heard gunshots went off and he said he hoped president adams would be shot in the ass. there were 200 people arrested, 10 convictions by federalist courts and by the time president jefferson took office in 1801 he pardoned the offenders and the congress of 1840 looked back on that and said it was a mistaken exercise of power and they repaid the fines that had been
due to those convictions. so we move up a few decades to the civil war. this war isn't far away. it's hundreds of thousands of americans dying on the doorstep here. states have seceded, families and friends are fight. the idea maryland might secede from the union would put washington, d.c. in the confederacy. lincoln suspends the writ of habeas corpus eight times and declared persons discouraging enlistments, resisting drafts or guilty of disloyal practice should be somebody to martial law and triable by military commissions. so this is more than just detention. it's moving ahead with trial and punishment and between 13,000 and 38,000 people were swept up as a result. in march of 1863 general burn side issued general number 38 which stated declaring sympathies with the enemy will no longer be tolerated. this leads us to the case of a very colorful character who is not a nobody.
he was the speaker of the house of the ohio representatives. he was a congressman from ohio. he and edwin stanton had been best friends. stanton had lent him $500 for him to begin his law studies. and he was a delegate to the 1860 democratic convention. he spoke out against the war frequently and in mt. vernon, ohio, he spoke out against the war for two hours. there's a lot of bad things you can say about the president and the war effort in two hours. he at the end concluded by saying he wanted people to exercise their right to vote in order to hurl king lincoln from his throne. a few days later he was arrested in dayton at 3:00 in the morning and tried, even though he was a civilian, by a military commission. his punishment, oddly enough, was to be put into exile. if you like the confederate cause so much, go join the confederacy. so they sent him to the south. he didn't like it there. he broke the union blockade and
escaped to bermuda, from bermuda he went to nova scotia, then he went to ontario. he came back by 1864, took up practices talking against the government in ohio. now the press, even the press in the north was very upset about what happened and they excoriate it had government for doing this to this man. there were lots of prosecution and we know different things happened to different places and this is one of the things that happened that orders were happening in different places so there wasn't legislation passed. there were very ad hoc policies and enforcement. so skipping up to world war i, i'll say a couple thing because i'll be put in a speech panel prison if i don't hurry. but world war i is a different war. it's not happening on our doorstep, it's far away and there are hundreds of thousands of people who have died and
people don't want to go. people here are debating this and they are concerned this is a war to benefit arms manufacturers at the expense of poor and working class people who are going to go die so wilson asks for a declaration and gets it. a month later you need bodies. he asks for a draft and gets it and these are very unpopular laws. the war ends the draft law so the espionage act of 1917, the sedition act of 1918 they make it a crime to criticize the administration war effort or draft punishable by 20 years in prison and $10,000 fine. about 2,000 people are prosecuted under these laws and it affected from nobodies to prominent individuals such as eugene debs. and many court went over backwards to read the malicious intent required by law into these actions in order to secure
prosecutions. now these cases are going to the supreme court so courts are getting involved where it had just been generals or presidents or congresses earlier but the court is siding with the government and not individuals in these cases so moving up to 9/11, it's interesting to go back to look at what was said. there was going to be legislation that would restrict speech and other liberties and there were policies of debatable constitutionality. people got watched for things they said. tlpsz inappropriate and in some cases unconstitutional profiling and discrimination. you're either with us or against us kind of talk and maybe we'll talk more about that too but as far as prosecuting people for verbal or written criticism of the law, for how the war was being waged or for calling politicians names, for crying out loud, you had plays in new
york about blood thirsty dick cheney and george bush. we just did not see the kinds of government prosecution wes did before. barbara lee, a congresswoman from california, she was the only member of congress to vote against the 2001 authorization for the use of military force. she spoke out many times about that conflict and she speaks out often about all sorts of military conflict. she i'm sure never thought she was in danger of being swept up. code pink. everybody here has been in a meeting where you've seen code pink. if you were watching the kavanaugh hearings you saw code pink. i was at a senate hearing, code pink members are standing in line talking to capital police because they know them. everybody knows what they're going to do. they'll sit down in the hearing, wait until an opportune moment, stand up and start saying something, the police will say if you can't behave, could you leave? there are a few instances where there have been arrests because they're violating security
measures or scan dard regulations that apply to everybody. we just don't have that kind of suppression. now, maybe we can get into later other things that are going on and there are bad things and there are things that might cause a chilling effect and so on but in the end we do have a tumultuous history with free speech and national security. we have ideals and we don't always live up to them. whether out of sheer political interest, fear or legitimate concern for the fate of the reap. we don't always make the best decisions in the moment and it's hard because every war is different. i tell my students war makes bad law because the circumstances are entirely different. the government can do things and surveil you in ways we couldn't have comprehended 15 or 50 or 150 years ago but you have more access to speak your mind than you did 15 or 50 or 150 years ago so it's easy in moments of tension for all of us. the president, congresses, court, the press, the public to
overreact. i would say on the speech front in general when it comes to national security while we have a history of making poor and wrong decisions, we have a history of looking back and seeing where we went wrong and trying to get it better next time. we look back after the alien sedition act. now, i have no doubt in the future we will have problems again and we'll have to learn from them but our public society, legal system, government, we're more careful and aware about the constitutional and appropriateness of our actions. >> i'm going to skip out of order here a bit and go over to jamil. >> delayed arrival, i apologize. >> traffic. jamil is the founder of the national security institute and scalia law school at george mason university where he also teaches. jamil spent time in the bush department of justice if i'm not mistaken. he's a visiting fellow at the hoover institution and he previously clerked to justice gorsuch on the supreme court.
so over to you to give us thoughts as well on the current legal scope of things. >> look, our nation has always had a fraught history. free speech is at the core of our constitutional values. we've fought against the king and at the core of what we think of as the core political and civil liberties of america. at the same time, our framers understood the need to protect secrets and the need for expedition in negotiations. the need to preserve national conversations that cooperation with foreign leaders as well as information about troop movements and alike. it was the core of how they fought the war of independence and how they expanded the nation and made it the country it is today so this question of how to protect secrets on one hand,
which is inherently undemocratic and inherently counter to the notion of free speech while at the same time protecting the value of an informed electorate. because the system the framers envisioned doesn't work without a well-informed electorate. and to have a well-informed electorate, keeping secrets away from that undermines that very notion. particularly secrets the government is keeping in order to protect national security. this tension has been in our system from the beginning and we've seen this tension raise its head up in the modern era beginning with the pentagon papers case where we saw the "new york times" on one side, the "washington post" as we saw in that well-watched movie recently fighting over the question of whether these national secrets about the vietnam war, some of which were designed to not simply protect troop movements but designed to protect the decisions made -- erroneous, by the administration then in power and the prior administration before it and the
doubling down in the war on vietnam and the secret wars we were fighting in cambodia and laos, not so secret secret wars we were fighting and the question whether newspapers could talk about these things publicly. cases that went all the way to the supreme court. the supreme court in a famous decision defending and protecting the right of the papers to publish this information. these tensions have not gone a away. we've seen them in the "new york times" about what can be and cannot be talked about. president bush declassified them after the "new york times" discovery. or the snowden disclosures. edward snowden violated the law and the requirement he is had under the law to protect classified information but did so with respect to one program where he purported to be defending america's civil liberties, a program designed to collect all the phone calls or at least information in the
continental united states. hotel and revealed a tremendous amount of other information that had little to no impact, the debate about whether stone was right or wrong to do that. whether he was a traitor or not, i lean on the side of traitor. but nobody can argue that edward snowden did trigger a debate that was valuable in the surveillance arena which is to say this question whether we should be collecting metadata and under what circumstances and that debate led to legislation, the usa freedom act passed by congress and signed by the president even though both the bush and obama administration continued that policy all the way to the law passed from 9/11 forward that changed the way the program functioned. the private sector held that but the data was accessible under a
more narrow circumstance but that program stayed in place. the program that brought edward snowden to do the things or so he says to do the things he did so this tension about whether snoent w edward snowden was right or wrong. famously in england the british police seized hard drives and seized computers. it didn't happen here. there's debate in the obama administration about whether or not the information about the alleged program to take down the iranian nuclear activities, so t so-called olympic games program, stuxnet as -- should have been revealed by the newspapers and whether that harmed or helped national security, that's debated. we prosecuted a senior military official in mattered related to that leak. in the bush administration a senior administration official is prosecuted because of the
leak of the identity of a cia officer. so this tension about protecting national secrets was a core part about how to think about the nation while on the other hand still defending and protected a right to free speech and to debate that information remains at the core of our national deba debate. in an era where the president goes after the free press condemning them as parroting fake news while being criticized himself by that very fake news press allegedly for not telling the whole truth and the press believing it's their responsibility to call elected officials out, that debate
remains alive. in some way this is debate between free speech on one hand is at the core of what we are hearing now called the post-truth era. and weren't whether, in fact, the fourth estate survive this is debate and whether in fact free speech survive this is debate is at play here because in part some of the speech that we see out there we now know is influenced by foreign actors. one of the core mediums of free speech we talk about today, twitter, turns out to be a place full of russian bots. facebook turns out to be a place full of russian bots. russian bots who may or may not have a dog in the fight about who wince but cas but care aboug dissension in our country. so our core values are utilized by foreign actors against us in a way that harms the very rule of law institutions designed to protect them. the justice department, the fbi. and what you see is not just foreign actors trying to have
influence but you have republicans in congress, democrats in congress, the chair of the house intelligence committee debating whether a foreign actor tried to influence our elections. i mean, this is a scenario in which our own tools of democracy the very values our framers espoused and wrote down and enshrined in the bill of rights are being utilized to undermine our ability to govern our own nati nation. there are no innocent parties. the president is guilty, members of congress are guilty and we somehow knowing full well that foreign actors played this role can't seem to get out of our own way and address the core problem which is not a question about free speech, but the fact that we haven't confronted the russians, the chinese iranians, the north koreas who are using our own democratic ideals and
values against us. >> well, thank you. now final speaker, greg is the president of the foundation for individual rights and education, or fire. greg, given everything that was just said here, you spent a lot of time -- oh, man. >> i'm legally obliged to talk about this book. >> you spent a lot of time on college campuses. what can you tell us about the cultural discussion of speech on the campuses and how that will shape the future national security conversation of these things. >> i specialize in first amendment, that's what i went to law school to study and since 2001 i'm been defending free speech on college campuses. i wrote a book about it with jonath jonath jonathan heit that just came out. i wanted to recommend the book "liber
"liberty's first crisis" which is about the alien sedition act, which is delightful if you can call something that has so many sad stories. the first amendment was toothless even though it was passed in 1791 until 1925. that comes as a shock to most people. it was a cultural tradition. there was a book that talks about how free speech was maintained as a cultural norm but legally it had almost no tee teeth. and i always want to plug this one. i think it was george marshall but there was a report issued after world war ii about why america won the war and it was first internal but then it was publicized and one of the most interesting findings in that postmortem report was the argument that why did we have --
how were we able to keep these totalitarian governments? these were governments that could wield the entire power of germany to -- at their whim. like we're this inefficient system. how do we beat them? and one of the explanations given is that a free press and society is able to identify problem mrs. quickly so those -- i tell this to university presidents. the student press is going to tell you things that you don't like about your university but that you need to know. you stifle it at your own peril. now a campus' role when it comes to its relationship to freedom of speech are essential. the -- pretty much no sooner did you have a strong interpretation of the first amendment while recovering from the second red scare in the 1950s, you start having cases like sweeezy v. new
hampshire in which they were trying to fire an avowed communist professor. but the university student firm against attempts to get professors fired and this is where your law of freedom comes from and where our law about free speech on campus regarding public colleges comes from. now i would say mostly campuses had played a positive role in the history of freedom of speech. the free speech movement in 1964 in berkeley, the important cases defending free speech writes of students which were from the 1970s but in the 1980s you started seeing a shift towards universities becoming a place where you would preview new censorship regimes and kind of a laboratory for coming up with new ones. so i was talking to one of your students, explaining -- i defend free speech on campus and the first question i got was well,
what about hate speech? i get this all the time. hate speech is an old idea and it sounds good, it polls well in terms of something you should ban but it works in a predictable way that you don't have to be a first amendment defender to see. it ends up being applied against surprising people. so romania, their anti-discrimination council, targeted a satirical magazine for committing hate speech against the party leader. in indonesia, the parliament brought ethics council charges against anyone who disrespects the dignity of the house and members, very much grounded in hate speech language. that was perfected on u.s. campuses in the 1980s. kyrg kyrgyzstan, erdogan uses this stuff all the time, russia has adopted some of these arguments that are coming off of campuses
and i will say flat out the european union has turned into a complete holy mess on this stuff. and it's funny, i get called by a lot of european newspapers to give my opinion because i think they think of me as their crazy american cousins because they think we're nuts in the u.s. but there were 330 arrests for grossly offensive behaviors in the uk in the past year. facebook in the eu partially due to rulings -- coming from the eu had to delete close to 300,000 posts every month for violation of hate speech. we can all kind of have some kind of feeling that people shouldn't say hateful stuff but there is a value in knowing what people think so from a national security perspective we have this great system to allow terrorists to say, hey, by the way, i hate people and i'm going to blow stuff up.
by all means, let them tell us that if they want to tell us that, but in the process of stifling this stuff and erasing this stuff we are in some ways breaking down that flow of ideas that also tells us the bad things about our society so i think some of these efforts going on in the europe including probably the worst idea, the right to be forgotten, is going to result in the european union knowing a lot less about the world in which they actually live. so i do think some of the ideas that come off campuses, particularly the bad ideas, have a lot of effect. i am concerned -- this whole book is essentially about for all of my career despite stereotypes, and i start in 2001 the students who r the best constituency for free speech. they got it better than professors and certainly better than administrators but some time around 2013 and 2014 that started to change and i started seeing more demanding of professors not being allowed to
speak, speakers -- demands for new speech codes coming from students for the first time, at least since the late '80s, early '90s. so the trends have been concerning and negative and not where you would think we would be circa 1991, 1989 that we thought this was the big victory of free speech liberalism. instead we have a democratic reception which i think is a backlash to this technocratic idea of speech policing. the end. >> so let me start back with you, gabe. you kind of talked about how your views changed a little bit and i think i heard you making the case that because of what you think about the trump administration, that hard line view that you might have taken eight years ago in terms of the importance of the rule of law here that you're inclined to bend that a bit so let me push back and say is that the right
position to take? especially -- the republic is going to survive and are you articulating a kind of it's legitimate but illegal kind of standard? how would you work that out? >> i think legitimate but illegal is exactly right and that means prosecutions should proceed and that people who take it upon themselves like anonymous who wrote this book to reveal information if it's classified information -- there wasn't any in that book but if it were classified they should be subject to persecution but i would call upon people who know things about the worksings of our government that are illicit, damaging to the country who are in the white house or bureaucracies to come forwarped and put the secret information to the public. and that would be a form of civil disobedience if it were not done anonymously. the real problem is the anonymous leaking so we have
this recent case, this woman with the strange name of reality winner who gave the intercepts and documents about russian hacking of our state elections and they were classified documents. she was -- i mean, the documents were, i think, helpful to public discourse and not about the situation we're facing but they were classified and she was arrested, tried, convicted and sentenced to five years in prison. my sense is that if reality winner had surreptitiously, instead of providing those documents to the intercept but come forward and held a press conference and taken responsibility for bringing it into the public domain she might not be in prison elsburg didn' that? >> he's considered a hero by
many people. i have mixed feelings. i think the information that he put on the record was really -- he's not known for the information. the information was old. there was not a single document less than three years old. it was not about the nixon administration, it was all johnson and kennedy material and he was very careful to react what dehid. he struck out anything about military movements and was quite conscientious at that point in his career so i think it's quite different from some of the megaleakers that we've seen now like snowden and chelsea manning. >> let me skip to you, greg, how do you square your description of the campus with -- to connect with the other things here, the pour lairty of snowden. what's your impression and how does that shape our understanding whereof this larger dynamic is going in the
country? >> snowden was -- i don't know how popular he was on campus. i get the impression he is. he does appearances. i think he was a -- at students for liberty, for example. he did a talk via satellite there. >> from moscow. >> yes, from moscow. >> his government paid for a house in moscow. >> right. but at the same time it's not surprising give than he's got the reputation -- he's presented this rebel against the system common way to make yourself popular among young people is to look like the rebel with a ca e cause. but i wanted to get back to how exactly we -- i'm not sure if the audience knows this. most of the countries in the world make it flat out illegal to report on certain things.
and what people don't know, rai australia, britain, canada have very tight laws on what the press can cover. ameri america, essentially the rule is more or less if it gets to -- it's the government's job to make sure it doesn't get to the press. if it gets to the press, you're done and there's only a handful of cases that have been prosecuted. there was the case about whether or not a magazine could publish how to make a hydrogen bomb.
so the government has policies that limit the disclosure of employees and of course unsurprisingly this means everyone from obama to bush enforced these ferociously. but in terms of things where you're talking about the press, where are you thinking? what would be a situation where you could arrest a journalist? >> well, one case would be as i said the battle of midway. >> sure. when you're actually in a war. >> the "chicago tribune" but violations of the statute, the communications intelligence which punishes publication of secrets pertaining to communications intelligence as a uniquely sensitive area. so that -- communications intelligence encompasses a broad range of things today. .
almost all intelligence is communications intelligence so the law is a loaded gun pointed at journalism and it's one of the -- the trump administration doesn't seem to know this and there's a lot of tools in the current law that if they took the enemies of the people rhetoric seriously they could wng the law, within the first amendment even prosecute because the pentagon papers case, while it ruled out the possibility of a prior restraint perfectly allowed for prosecution of t times after the fact. six of the nine justices said if the same facts came to them in a prosecution they might even be tempted to convict, to uphold a conviction so i think there is -- the legal structure is very ambiguous right now and also quite a dangerous weapon as it stands but fortunately it's never been used in that way.
>> let me jump in here, greg, you just used the phrase "if we are actually in a war." of course we are. >> like a declared war. remember the thing the founding fathers used to do. >> let me shoot this to melanie and conclude with a positive note that, look, all things being equal we're better off today civil liberties wise than in the past but is that in part because of the felt sense that the conflicts that we're in, although authorized in some way -- >> in some ways -- >> are not as felt a war as world war ii. >> that's true and i'm grateful we're not sending hundreds of thousands of people to be killed. i'm grateful there aren't hundreds of thousands of people being killed in europe right now. there are people being killed in afghanistan and nigeria and other places in the world so
those things are serious. now it's not in the same way. so as i said there were detentions, there were other things that took place. there were deportations and there were violations of civil libber knees that respect. the nation is not at war in the same sense than we have in the past. there's not a draft and while there is an authorization i think a declaration of war can change things but i don't know that it would be legitimate to change speech laws in the same way that it would change the economy or change physically taking people and putting them a place where they might be killed? >> now jamil, you talked about the institutional tensions. the tensions between on the one hand this and these core values and the other hand you have to
protect secrets. is that one of the things that can ever be resolved? what kind of lessons can we take away from that? or is it something that has to be hashed out in every conflict with different precedents and different kinds of clashing and fighting the same battles all over again? >> i think in a lot of ways our values are changing over time, our values about what we care about and protect. when we find ourselves and the way we look at these issues, we are in a very different world. we feel differently about that contact. for those of you that were alive during that think, the felt sense of being violated and a loss of life people felt on a day, a federal judge was in the government and he can talk about 9/11 and what he felt sitting on the runway, he was still drawn
to tears and it was a real moment and i still have those feelings when you watch the 9/11 but for people who weren't alive, you don't have that sense and it's not present in the american body politic so that's why we don't feel like we're at war and if you ask service members families who are in iraq or nigeria and fighting against terrorism and ensuring that battle is not fought on this soil but that soil they would tell you that feel very much at war so that there is -- i think the felt sense, the type of conflict we're in, what it means for americans or individual there's a lot of debates about the gulf of tonkin resolution
land that was the right war and whether they meant to authorize it when they voted 89-2. but at if end of the day, i don't think we'll be able to resolve these tefully and we cat change that but this tension greg talks about on college campuses, it's true it's become dramatically worse since 2013 but it was present when i was on campus in the late '90s when i was condemned and as a traitor to my religion and my skin color because i dared to join and fraternity and not be on the minority ballot for student government so it's dramatic with speech codes and trigger warnings. it's ridiculous. the same people who celebrate edward snowden as a hero because he fought against the man on campus don't want to fight against the man and they want the man to protect them against things that make them uncomfortable and worry them
because god forbid we talk about controversial things or things that hurt people's feelings so that has driven me in some ways to, while i am a strong defender of national security and the right of the government to protect secrets to join the board of directors of speech first. these are tensions that my own life literally being on the board of an organization defending the speech of students against bad speech codes at the same time i t right of the government to protect national secrets so i live that tension on a daily basis. >> why don't we open it up to questions. just introduce yourself real quick and keep it precise in the form of a question. go ahead and why don't we start with the woman in the back. >> i'm rachel bernard. we talked a lot about the role of the public sector in terms of
maintaining free speech and how we deal with that but i'd like to look at the the role of some private sector organizations. recently it came out that the myanmar government used facebook to perpetrate genocide and encourage genocidal propaganda against the rohingya population in the country. what do you think -- keeping that in mind, what do you think the role is of organizations like facebook, twitter, instagram, google in helping to either promote or defend -- i guess the question is how do you see the intersection of free speech and also maintaining safety of people and not allowing things like that kind of speech present. >> it's interesting because when i speak in europe about this stuff i'm an evangelist for the american system of first amendment which they all think is insane.
they think we're crazy hippies with our weird ideas about freedom of speech but when you teach it, it really is actually pretty well thought out. when it comes to what was going on -- i don't know as much specifically about what facebook was doing in that context but for example the rwandan genocide comes up a lot and the answer to that is that's under any definition that's brandenberg incitement. like when you're telling people to go out and kill your neighbors, that's not protected even under our crazy system and what i generally defend the american system of first amendment as not just a system of laws that is radically designed by the u.s. but probably the freedom of speech in the real world. i don't talk about hate speech because it has no legal meaning
in american law. it has no legal meaning whatsoever. it's even fuzzy what it means in other countries laws. kick him out for defamation or something unprotected so you keep it precise and clear but a lot of these parade of terribles that people talk about, it's weird when you're talking about that in europe, their impression of what american law means and it's like, yeah. i got question after question that that's conspiracy to commit terrorism. that's not considered to be speechment or that's actually a death thread which is not protected under any system. i thought it was a good thing that facebook and twitter were influenced by american legal standards. what i'm worried about that is happening now is that decisions coming out of the eu are having effects on what you can see in the u.s. including the right to be forgotten but also their hate
speech rules by some definitions are supposed to apply not just to google.eu, it applies to google.com, everywhere. so it seems like we're having some amount of what we're allowed to learn being limited by these experimentations and censorship going on in the european union which would violate our law so we're in a bind at the moment. >> a bunch of questions here. >> very good question. >> my name is richard which ich. there was precious little discussion of general flynn being prosecuted under the logan act. is that true. >> he's not prosecuted under the logan act. >> that's what i'm saying. he's not prosecuted for not being a duly authorized person to represent the united states
and then of course the james comey case. so isolating and identifying patterns of when prosecution occurs and when there is a constraining of a prosecutorial effort and would iefication of these trends lead to a streamlined approach to a prosecution which might, in fact, increase a deterrent value for outside influence in elections and other -- political activities in the united states? >> a more recent prosecution. >> i guess i'm saying if you look at the flynn case, for example, i'm not sure -- the
logan act has used once and that prosecution is not completed. more importantly, there's debates about whether the logan act should be used against flynn. flynn was the the designated representative of an already elected president so there's some question about whether you can prosecute somebody in that scenario but then the same people are saying boy you should prosecute flynn are saying it's great that secretary kerry can talk to iranians about how they should evade and get out of the iran deal. the same people saying tom cotton should be prosecuted because he was writing a letter to the iranian supreme leader. so these are -- the logan act is not a thing. it's the law but nobody cares. >> but this is before the election. >> debatable but tom cotton, elected member of the u.s. senate writes a s ags a public with 40 some odd members of dong
the supreme leader about the iran deal, claims that he should be prosecuted because obama was making a deal with the iranians. secretary kerry tells the iranians here are eight ways to evade the trump administration. the same people on either side of that said the other should be prosecuted for logan act violations and nobody has been prosecuted so it doesn't matter. it's not really a thing so that is not just prosecutorial discretion. that's just a dead letter that nobody thinks is -- >> well, not quite sure. the justice department really was considering the logan act as they were investigating it. i agree that it's very unlikely there's going to be a prosecution but that was the basis of their investigation. >> all right. let's keep going here. this gentlemen here has been waiting. let's take two. >> steve winter, independent consultant.
i'd like to get the panel on this question in terms of let's say government secrets or information about government activities which are very unfavorably reflective of the government. i'm so old i can remember back to the church commission and the pike commission. obviously the cia thought this was going to be the end of the world, the worst possible thing and the stuff that came out is extraordinary. people have forgotten but if you realize what came out, even the stuff that was kept quiet so some people have suggested this. let's say hypothetically that with the various revelations about the fbi currently and all this stuff, let's say there's more to that story than seems to come out everyday. if a similar commission, the pike or church was constituted
to really dig in with subpoena power and so forth, to dig into what really happened with the russia dossier, fbi, whatever, carter page. it might be terribly hurtful to the government and the public confidence of the government. would you support such a commission if the suggestion is that's the only way you can get to the truth. >> that's a bit of a hypothetical but let's take another question. >> my name is gerald hang, i came from boston, massachusetts. very good to hear about the first amendment. to the united states supreme court, freedom of speech for the private sector is basically don't yell fire, fire, in a private crowded room. i'm wondering whether uncle sam
requires hellfire before they act on the security issue. i mention this because in the old days of decolonization in southeast asia, especially singapore ma lash yarks india, they are communist comrades who say you anglophile capitalist pig, what are you trying to do. are communist comrades who say you anglophile capitalist pig, what are you trying to do. >> let me let the panel respond to that. . my answer was, hey, carl max was in the british public library and he wrote the book for you. >> all right, let me give the panel a chance -- >> my question is simply this. is uncle sam ready with the counterpropaganda against the terrorists and against people
who want to destroy this country? >> are they ready? >> let me connect both of those to what was discussed earlier. jamil brought up the business and -- several of you talked about the very real issue of russian bahts on these things so greg you made the case for be transparent so people can see what they think but it's not people if it's an information operation so how do you come at that? >> well, i think what you're going to find is that if we li these organizations. the with thes, the facebooks of the world alone and just reveal what's happening that the pressure will be on them. these are companies that make their money off of eyeballs and eyeballs want to know what's real and not real and there is a built in incentive for them to
have accurate information being conveyed so i think what you'll see over time -- and you're already seeing that trend. that doesn't mean we don't need to call out what we're seeing happening and take action against actors and deter their activities but i don't think that regulating the speech that takes place on facebook or twitter or instagram or whatever is the right approach to solving this problem. melanie, you've look t at this issue historically. what's the right approach. >> no, oh. >> save us. >> how do you deal with a free speech question when you're in times of war. this is not a time of war -- >> it's not. >> i mean it's a time of war when it comes to terrorism but not a time of terrorism when it comes to russia and us but there's an information war taking place so what do you do with a free speech institution in that scenario? >> i don't know but one thing i
am worried about is leaving this up to congress. >> well, we saw the hearings. >> i'm not saying they couldn't figure something out but it is concerning. >> but you're saying it. >> yes. so look i am not a specialist s that. technology does change this, you know, every so often. we are in the midst of a big technological change in where the government can look at you, but you have more opportunities to do things. i will say one thing that i wanted to touch on earlier. i should have responded to it better in my own question. how do we talk about these things as a public? how does our government talk about them with us? when we talk about are we in a war? i don't know. does our government take to us like we're in a war? people are fighting and dying right now. i'm grateful for a volunteer force of people that go. i'm glad it's not the first thing we think about because everything is rationed at home and every family is affected by a death. does our government treat it
like it is serious and like it's important? i don't know. how is the government going to frame this in whatever they're going to want to do on this. can they galvanize public opinion? can they explain to us in a way that whatever happens we'll be able to participate in that discussion, but also accept how it shakes out. >> in terms of this kind of like new problem with the bots, it was definitely one of those ones -- i'm a recovering techno optimist. i'm excited about the potential of social media. but the bots were -- they're a sticky problem. in some ways you could relatively easily deal with them. one of which you have to have some kind of identification, you have to use your real name on all these social media platforms. that makes me nervous from the point of view of where countries, great, oh, you're going to get arrested now for saying that you're talking about
you're gay for example or that you don't like erdogan. i like to get digs in at him. but that might be the best of the worst solutions that could make a big difference. >> we have a tradition in this country of anonymous speech. what about that? >> that's the thing. i'm a little bit more -- i'm a bad first amendment person on that one issue. i see how -- >> when they have to say who they are. >> i have experienced this myself. i give a caveat. if you're in danger of being punished for what you said, anonymity becomes essential. i say this when i talk at universities. if i didn't think there was a realistic likelihood this person was going to get in trouble for doing their underground newspaper. i've seen enough that -- >> can i ask you a question about that? take the author of the anonymous washington op-ed about the
president. that person is likely to be punished in some way. we've seen the president fire people all around. in that circumstance, or a general matter in america you're not going to be -- >> i don't have a general rule. i do do it case by case. >> what about that case? >> on that one, i think probably okay. maybe the public -- i was -- made me feel less nervous about it. anonymity at getting rid of it, it could make it easier to get over bots but we would be sacrificing a lot in the meantime. the problem with flooding, unfortunately, is you can get non-bots to do it. flooding, propaganda today is not about convincing people of truth. they're making -- it's to make it the impossible to know what the truth is and everyone gives up on it. that's a hard one to fight. that can be done by slanted
pundits. it can just as easily be accomplished. >> and actually is effectively coming from both sides today. part of the challenge with social media -- >> it's called public opinion. >> exactly. but the challenge of social media today is what it's really doing is it's ghettoizing people. so people who are already inclined to think one way, read more on their facebook feed about what they're friends are saying and the people that think like them which makes them more extreme. it's pushing everyone to the edges. >> you're arguing against your own proposition that eyeballs seek truth. they're seeking confirmation. >> so that's exactly -- you're exactly right about that. i wonder whether, though, this debate that we're having in america about what it means to be in this post truth area and what it means to have this ghettoization of people's views, whether that may allow us to spring back. i'm hopeful. i'm using my own optimism that
we will spring back and recover and that that will force these institutions to fix themselves. institutions -- i say institutions, these organizations, right, facebook, twitter, social media companies, are they going to trend more like traditional newspapers and media who see their role as trying to help people get to truth? or are they going to see their role as trying to get eyeballs for the money they're making and allow people to ghettoize them. >> we're not going to settle it tonight. we'll have to draw it to the close. thanks to the panel and all of you for coming out. [ applause ]
in the view of the war on kmig commission, they described the assassination of president kennedy. is there more to this story than the warren report every discovered? >> this weekend on real america on american history tv, the 1967 special news series, a cbs news inquiry, the warren report. anchored by walter cronkite investigating unanswered questions into president john f kennedy's assassination. saturday at 10:00 p.m. eastern, lee harvey oswauld and whether e acted alone to assassinate president kennedy. >> we should try to question how fast could that rifle be fired? >> watch real america, saturday at 10:00 p.m. eastern on american history tv on cspan 3.
sunday on q&a. california democratic congresswoman jackie spear talks about her memoir. >> i was on an air strip in the remote jungles of guyana. and we were ambushed on that air strip and shot. congressman ryan was shot 45 times. members of the press died. i was shot five times on the right side of my body. a bone jetting out of my right arm, a wound in my leg the size of a football. and it was oh, my god, i'm 28 years old. this is it. >> sunday night at 8:00 eastern on cspan's q&a.
when we study the history of memphis, tennessee, there is pre april 4th, 1968, and post april 4th, 1968. ♪ ♪ >> you know, memphis was the place of a lot of racial tension, but it was also the place of a lot of racial harmony. >> had there been no cotton economy, there might not have been the need for a transportation hub. so it's quite possible that without cotton, memphis would not exist in the 21st century. >> this weekend, cspan city's tour takes you to memphis, tennessee, with the help of our comcast cable partners. on book tv, down to the crossroads, civil rights, black power and the march against fear. author charles hughes on the
role music plays through his book, country soul. making music and making race in the american south. on sunday at 2:00 p.m. eastern, the history of cotton in memphis during the mid 19th century and a visit to the national civil rights museum. watch cspan cities's tour of memphis sunday at 2:00 p.m. on american history tv on cspan 3 as we explore america. up next, economic and migration experts talk about the economic impact of refugees and other migrants. in this panel discussion hosted by the brookings institution, william kerr discusses the findings of a book he wrote on the economic effects on immigration, especially to the u.s. speakers took questions from the audience. it's about 90 minutes.
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