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tv   Key Capitol Hill Hearings  CSPAN  April 22, 2014 12:00pm-2:01pm EDT

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budget committee for many years, he introduced biannual budgets back in 1999. it gives the opportunity for congress to establish a two-year budget process and to have a two-year resolution, two years for appropriation and then go back in and engage in aggressive oversight of government programs and how they are functioning, what we can do to make them different, what works, what doesn't work. the kind of oversight that is vital and essential. that gives the opportunity for the congress and the committees to weigh in and then make adjustments through supplementals, so they don't always have to address the 12 appropriations simultaneously.
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but back in adjustments that can be made over the two-year process. we already know how bad the process is from the shutdown that occurred. we have not had a budget in the united states senate until this last agreement in december. but on the appropriations side, the 12 appropriations, we haven't had 12 appropriations passed before the fiscal year of october 1 since 1996, which was under senator trent lott's leadership. and only 13 appropriation bills have passed since 2001. only 13 total, not in one year but total. just to give you the degree to which this current process has failed. so it would add significantly to improving it and getting them on a course of evaluating federal programs. >> so what are the odds of a
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two-year budget process? >> i think they are very good, and we have an example. the murray-ryan is a two-year budget. we have actually done it. and let's see what happens in this two-year period. >> do you take this as a green shoot of spring that they were able in december to reach a budget deal? >> i think they did it without realizing what they were doing. [laughter] could i go back to the previous question? we kind of went over it very quickly, but it is a very significant point. where do you draw the line between principled opposition and absolute obstructionism? and there wasn't anybody who had stronger principled opposition than teddy kennedy to many of the positions that republican
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presidents took, and he was outspoken about it. i go back in history. the ratification of the constitution was one of the most bitter, divisive fights we ever had. everybody thinks, oh, they came out of philadelphia and they waved this marvelous document and there we were. no, they came out of philadelphia into a massive opposition. and the fight for ratification of the constitution state by state was a bloody fight. and the two states where it was the bloodiest were the two states we had to have in the union or we would not have had a country. and that was virginia and new york. all the other states could have ratified. if virginia and new york had stayed out, we would not have had a country. it was a narrow thing in both states.
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and james madison, fighting the fight in virginia, was opposed by edmund randolph, the member of the constitutional convention who put forward the virginia plan to begin with, and then voted against it in the convention and came home to virginia and campaigned against it on the position that it takes too much sovereignty away from the state and i can't be for it. and the most powerful orator in the state of virginia, patrick henry. and they fought the constitution every step of the way. and it finally was ratified by a very narrow vote. ok, what did patrick henry do when people came to him and said, all right, now what do we do to stop it? he said, we have lost. now we fight within the system. i will not fight the constitution anymore. i will now work within the structure that is created to get what i want later on.
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that is where the line should be. fight as best you can for your position, and then, if you are defeated, you say all right, that is the way things are. now i will work within the system for what i believe instead of saying, all right, now i will shut down the system. that's the line that should be drawn. [applause] >> we have a pretty notable example at the moment where that has happened, the affordable care act. four years ago, the republicans spent several years trying to repeal it. where do you take a principled stand in an act that you
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disagree with and being obstructionist? how do you know which side of the line you are on? >> i think senator bennett just said it beautifully. i think that a constant attempt to undermine what has already happened, i think a party-line vote or a decision that no matter -- by a party leader, that no matter what comes up you will never vote with another side and decision to filibuster everything that comes from the other side come i think that is just obstructionism. that is not principled opposition. to totally revisit laws that have -- and i am feeling very strongly and personally about the affordable care act obviously, but to have a law that has been passed by both houses of congress, signed by the president, approved by the supreme court of the united states, and to still be talking about it over and over and over and over and over again, not about how to make it better, but
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how to undo it, i think is really not historically, as far as i know, what we have done. obviously, there are things you can improve, but that is not in the conversation. >> does anyone on the panel think that republicans who have -- [applause] continue to fight to repeal of the affordable care act had done the right thing, principled opposition not an example of obstructionism? >> i think they feel it is sincere opposition. there might be a fringe group that just wants to be negative on the president regularly. but for the most part, it is not limited to one party either. there are lots of people on both sides that have a lot of issues with it. i think are the most part the majority of those that are constantly trying to change it or eliminate it are sincere in their feeling.
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>> i said pinocchio alert. >> i mean that, from what i am sensing from the heartland. >> i think it illustrates the fundamental primary issue why we are all here. the process isn't working. the affordable care act -- i gave it my level best. [applause] >> i know that for a fact. >> my former chief of staff asked me do you know where this is going, and i don't. you have to take it to the end and then decide. you have to draw that line and decide what you can support and what you couldn't and i couldn't. that's why the process matters. you have both sides weighing in on significant issues.
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it's the largest domestic initiative in our history. sitting at the table working with it, identifying major issues. you think about the civil rights act and how it passed, that was bipartisan. social security and medicare, how to ratify the constitution 19th amendment, giving the women are the right to vote. it is because the united states congress' willingness to work on landmark initiatives and that is not happening with the affordable care act. it should have been a process in which everybody was engaged on both sides. i won't get into the why it didn't, but unfortunately it didn't. ultimately, people are paying the price today. that's why i think so many people are saying, you know what, we prefer gridlock. with so many problems of the implementation, they say. not that there wouldn't be as your problems with an initiative
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of this kind, but it would be less of them, because you have more interest to make sure it works when you have both sides working on a major proposition of this kind. >> i know i have already spoken but i can't -- i have to tell you this story. [laughter] senator wyden and i in the previous congress put together a bipartisan health-care bill. we called it the healthy americans act. and mary landrieu called it the noah's ark bill because you go about it two buy two. we got up to 19 co-sponsors. i had 10 republicans and he had nine democrats. trent lott, lamar alexander, ok,
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the election occurs. president obama is elected. health care is on the agenda. i get a call from tom daschle and says will you help us? and i said of course. but i said, tom, i want a seat at the table. he said, absolutely, you got a seat at the table. and tom daschle ran afoul of the confirmation process, did not get to be the secretary of hhs. a new team came in. i got a phone call -- i will not tell you the name -- i want to visit with you about health care. great, come on in. the individual came in. he said, we appreciate all the work you have done on health care. love to have your support as we work to get this bill done. be glad to do it. but i want to make it clear, it's not going to be the
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healthy americans act. is not going to be your bill. i am here to to tell you that i want you to support our bill. but there are some things in this bill i really believe in. well, we are going to write the bill. i said, do you mind if i tell ron wyden? and he said, that is why i'm here. ok, so i picked up the phone and i called senator wyden and said i've just been told by x that our bill is dead on arrival. yeah, they have been working on me to get me to abandon it and i won't, so he figures, if you works on you and you will tell me to abandon it, i will abandon it. we had 19 co-sponsors, including 10 republicans, including two members of leadership who were willing to work on a bipartisan solution because we believed that the current health care structure was impossible, terrible, bad for americans,
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needed to be changed. and we were frozen out of the conversation and told to go away. and it was passed with 60 democratic votes and not a single one of the 10 republican co-sponsors was ever asked to participate in the process of putting it together. so this was one place where i chalk it up not to anything evil. i am not rush limbaugh. i am not somebody who says he hopes the president will fail. i think this was an example of the president's inexperience in dealing with the congress. he had a great opportunity, and he muffed it. >> i don't know how many times i hear that if ted had been in united states senate at the time he would have worked it out because he was a master at writing legislation and understands the give-and-take of the legislative process.
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that's why it's greast that our day began with a profound symbolism, visiting the kennedy institute and seeing what the senate was all about and what it is going to be about and the interaction and what inspires so many young people to run for public office knowing how that process works and how he made it work. >> i have to chime in for just a second. even in the house, there was tremendous respect on both sides for ted kennedy because of the way he operated. i guess in speaking in broader terms about people that used to be in the senate and the house that operated from that vantage point, where they really wanted to try to get the right thing done and, if they couldn't get their way, they were not going to lie on the tracks and call a news conference and stomp their feet and try to get you in their next election. he never did that.
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and i think that is one of the -- just to build on what olympia is saying -- was one of the great things about him. >> is there a ted kennedy in the senate now, someone who is kind of a master legislator respected on both sides, has a strong point of view but is willing to work -- is there a young senator or someone who seems like a prospective ted kennedy figure? >> lamar alexander. >> i would agree with that. >> any other nominees? no. >> it would be easier if we had a list to look at. >> can i give you a name that will surprise everybody? chuck schumer. i was the ranking member of the rules committee when chuck was the chairman. everybody said to me, this is going to be terrible. before, it was dianne feinstein.
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we worked everything out without any difficulties, any problems. no, dianne has moved on to intelligence. you have schumer. he's a tough partisan. he's going to be awful. i never asked chuck for anything he didn't give me. i made sure all of my requests were reasonable. i would go to chuck and sit down and chuck would say, ok, we can work that out. i know he has a reputation as a brass knuckles, back-alley fighter, and he is as tough a partisan as you are going to come across, but chuck is transactional. he can make a deal. and i think if chuck were the majority leader, or i prefer minority leader --
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[laughter] and lamar alexander was the majority leader, i think you would see a very different senate. >> a couple more quick names. orrin hatch is one. in the house, bill shuster. hal rogers. they may not be household names, but they are within the institution itself respected as people who really want to work with you to try to accomplish. >> it is interesting that senator schumer and senator alexander are mentioned. they have been working on new processes in the senate to get things going. let's report. would you support a two-year budget so congress can focus on budget talks half as much? 87%, yes. 13%, no. let's ask our third and final question -- would congress be
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more productive if members and their families spent more time in washington? you can vote at our website vicki kennedy, i've heard a lot of people talk about the need for people, members to spend more time in washington. in our poll, we asked if members of congress should move their families to washington or leave them in the district. by six to one, americans said they should leave their families in the district. there was much more concerned with members losing touch with what their constituents wanted than there was about forging relationships that would help in washington. i wonder if that's just a turtle -- hurdle you can't overcome when it comes to spending more time in washington or moving your family there. >> i think the notion of leaving your family back home is a relatively new phenomenon. historically, families always moved to washington.
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certainly, it was expected. in the senate, for a six-year term, the idea that your family would be someplace else -- teddy used to talk about it -- he would say, they are in five days a week. the idea that your family would be someplace else was just unthinkable. it was a chance, as well, to have a chance to have dinner with your family if you could. he did this really with my children, as well. we would have picnics on the capitol lawn. the senate would be in session. sometimes, there would be a band. the marine band would play on the capitol lawn, and on a certain day of the week -- do you remember that? -- we would sit under the tree and had a picnic. the bell would ring, and he would go back in for a vote. it was the idea that you could have a civilized life, but you also had the sense of normal family life. it also allowed you to meet other senators, to meet their families, to meet their spouses in the senate spouse club where
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we would have regular lunches. i had wonderful across-the-aisle -- a wonderful relationship with senator bennet's wife, other spouses, and that made a difference in how our responses interacted on the floor. all of those things make a difference. you get to know each other as human beings. i think it is a terrific idea to spend time in washington. you are there to do a job. it is to represent your constituents in washington. think about being in a workplace. if you aren't getting along with your co-workers, how productive can you be? if you don't know your co-workers' names, how productive can you be? i'm very much in favor of it. >> this audience agrees with it. i think it must be hard on a member of congress to not have their family living in
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washington. when your constituents are suspicious of the idea, what do you do? can you buck them and say, no, it's important for me to have them there? >> there is a distinction -- a big difference in the term of a senator and a term of the u.s. house of representatives member, which is two years. you win in november, and a year later, you are filing for office again. my dad was elected to congress in 1961. mom and dad had eight kids. we were lucky to have a home back in san antonio, much less one in san antonio and one in d.c. we would visit dad in the summer, two and a time because he lived in an apartment. when i was in congress, i still remember the congresswoman from new mexico was in charge of taking a survey or poll -- 75% of the members of the house did not have their families in washington. it's not that you don't want them there. one, i think it is a financial situation. it's really difficult.
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secondly, you are running for office. you will be back home whether you like it or not during that campaign year, which is every other year. as much as i would like to see it, because it does make for a more complete member to have family there, it just makes it a a better person and enables you to get along, and you'll see other members -- henry nye, we doubled with my step kids and your kids, but they were just visiting back then. i can see the advantages. it is just the practicality of it with the two-year term and the financial constraints and challenges would make it really difficult. >> charlie and i are good examples. conservative, liberal, we get along great. we didn't agree on a lot of things when we were in congress, but we always got along. i probably got mad at him a couple of times, and vice versa, but we did have opportunities to hang out like that.
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it really helps when you are trying to work on something. maybe it is two out of 10 issues that you might agree on, but is more than you have now. if you are for continuing dysfunction in washington and gridlock, you probably don't want members to spend more time in washington. if you want them to work together and get along more, you will want them to be in washington more because you do build those relationships that make it harder to just be ugly for political purposes. it just lends itself to more compromise. >> here is a question from our audience, from kate atkin -- she writes, what message do you have for the millennial generation both as voters and individuals who might run for office or otherwise engage with government? what responsibilities and
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incentives do they have to get involved, and how should they get involved? i wonder also if there might be some attitude among some young people, why would they want to get involved in a political system where it is so hard to get things done and where there is such a personal cost? >> i think the millennials have already proven, if you look at the last presidential campaign, that they are interested. they want to be involved. they want to be engaged. they don't necessarily know fully what all of that means, but what they do know is who they want to be seated in the white house or in the congress representing them in their particular communities and particular areas. i do believe that as they grow, and particularly in this age where they have access to all of this hardware to communicate with each other, i believe you are going to see some turns very soon in terms of how they
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connect to one another and how they go to the polls and how they see themselves in relationship to other people who are surrounding them. i do believe that you will see a a much greater turnout in the future because they see themselves as the future. if we cooperate with them, push them, help them to understand politics better than they do, i think that we will find that this will be a generation that may really change the whole scope of politics as we know it today. >> once millennials are elected to office and increasingly taking positions of authority, will they be different from the current generation in terms of how they work? >> they will be. they think different. they talk different. >> what will be different? >> i think they come out of institutions, universities, and other places. they have a different
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mindset about what life is about, and most of them are relatively mature. they have exceptional communication skills. they will be able to speak in such ways that they can present themselves and people understand what they mean by what they say. i do believe that we are going to see a dramatic change in the next two or three years. i'm using just populations of young people because i deal with them so much. their ideas are great ideas. at this point, they need to find a way to get people to listen. >> when the millennials rule the world, how will it be different? >> i think they will learn not to take their cues from the current climate in washington. i've definitely gotten that impression from young people as i've traveled across the country, speaking on college campuses. they constantly ask me the
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question about what they can do to change it and how best can they contribute. they do wonder or not they should participate in running for public office or in public service. i tell them they absolutely must. they always ask me the tricky question, if you left the united states senate, why are you asking us to get involved? [laughter] i said, that is a good question. i said, i met another stage in life. i can best contribute this way in convincing people that you can change the current dynamic. they are early in their lives. they have their entire lifetime ahead of them, as well as the country. they need to be involved and make an impact because of what is at stake. they ought to demand results now from those in public office because it will have profound implications for them going forward given the enormity of the debt and the other problems that had been long deferred. i'm so impressed with so many.
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they are problem solvers. they are looking at the world around them. they are aware. they want to change this political system. i am going to encourage them to run for office. as i did in my generation, i was inspired by president kennedy, and we need to have a whole new generation of young people thinking about it, especially at these times when there are so many issues that could have a tremendous impact on their futures, as we know. >> let's look at the results from the third question. we asked, would congress be more productive if members and their families spent more time in washington? here is what we heard from you. yes, 61%. no, 39%. a little at odds with what we saw with our nationwide survey of americans.
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we have gotten several e-mails and comments that go to campaign finance and what kind of factor that plays in dysfunction. here is one from robert. he wrote us, can we get money out of politics and keep members in congress over weekends in d.c. and reduce their vacations? he has a lot of things. and from pam, she writes, obscene amounts of money are squandered to buy media soundbites aimed at distracting voters and discrediting opponents. because unelected officials are beholden to their benefactors, the idea of voting based on the goal of representing constituents is lost. is campaign finance the most critical component of both congressional reform and restoring public confidence in government? senator bennett, what do you think? >> ok, here we go. if i could wave a magic wand, i would repeal mccain-feingold.
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think of the presidents we elected under the old system starting with the john f. kennedy, whose father had all the money in the world. he said, my father said he would buy me the presidency, but he was not going to buy a landslide. can you get money out of politics? the answer is no. you cannot. it's like trying to stop water from running down the hill. you can build a dam that can store a little bit of it for a while and divert where it comes, but it is going to run down the hill one way or the other. what we have done with campaign-finance reform -- i realize i'm very much alone in
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this, but here we go -- in the name of campaign finance reform is weakened the parties in taking control of campaigns away from the candidates. it is improper to give that much money to the party. it is improper to give that much money to the candidates. since we have something pesky in the constitution called the first amendment, you can express yourself in a political campaign. and if you can't give the money to the party, you can't give as much as you want, if you can't give to the candidate is much as you want, then you become sheldon adelson and you buy your own ad. pretty soon, the outside expenditures take over the campaign and distort the campaign. the people who buy those ads are a, nasty, and, b, bad marketers. they produce bad ads. that is part of the circumstance where everybody is turned off about politics.
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a woman in new hampshire said, i don't vote for any of them, it only encourages them. [laughter] they hate politics because of the way it's been done. if we could go back to the old days when the parties that were professional, that knew how to do right kinds of campaigns and intelligent kinds of ads, and candidates that could say, no, you are not going to run that ad in my campaign because it is going to make me look bad, i think we would have a whole better situation than we have now. because now it's all get money out of politics. you're not going to get money out of politics. all we are doing is distorting the direction which the money goes and empowering people who otherwise would have their influence tamped down by the power of the parties themselves. the parties are weaker now than they have ever been in american history.
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i look back at the candidates that were elected before we started campaign-finance reform. people like franklin roosevelt and dwight eisenhower and jack kennedy -- we did pretty well in those days. the final passage of mccain-feingold occurred, and we said, now this will get big money out of politics. the first election fought after that was between al gore and george w. bush. yeah, that was an election where there was not very much big money, wasn't it? that was an election where we saw all of the benefits that came out of that, didn't we? so, you touched a hot button with me, and i appreciate the opportunity. now you can boo and hiss all you want. that is the position i take. >> it's unfortunate you don't have any opinions to share with us. [laughter] we have a system now where we don't control the spending by billionaires. should we loosen the restrictions on party or
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eliminate them altogether so that it would strengthen the parties? what do some others on the panel think about that idea? >> the supreme court is probably going to be dealing with that. there are restrictions of what we can raise as an individual in the primary and in the general. the parties are restricted to a certain amount, but super pacs are not. you're not going to get the money out of politics. it is going to find its way in some fashion. the question is, can you do some things that might level the playing field? i'm not real crazy about just saying, no limits at all. you should be able to give me $5 million to run or such. i don't know if that is the solution. a super pac can do that and
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shift the money over. i do think disclosure would be an important item. we could be doing those things so at least you would know where that money is coming from for the multimillion-dollar ad. we can't even do that in congress. you just don't get rid of the money. it is going to find its way in one way or the other. >> i think it is an important issue for us at the bipartisan policy sector, as well, and looking at various recommendations, given the supreme court decision, which is a high hurdle now, in citizens united, which did release the force of the super pacs. my issue in mccain-feingold was trying to draw a distinction between ads that were electioneering ads that influenced the outcome of an election. those were purely advocating a position on an issue.
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it survived the first supreme court challenge. it did not survive the second, which was citizens united. then the court took it another 100 years back and said that corporations were people. that ultimately led to the super pacs. i think it is important to demand accountability and disclosure of donors to these organizations. that is one way of having transparency. many of these organizations that have one donor or thousands -- i think that would help to some degree. short of a constitutional amendment, getting around citizens united -- i think we should get rid of leadership pacs. i think i was down to one of three in the senate when i left who do not have a leadership pac. i wasn't there to raise money perpetually.
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leadership pacs are designed to give more money in addition to your reelection committee. it's a lot of pressure placed on individual senators and members of the house. more than half of leadership pacs, as well. it is more money and more of a time commitment. there are some things we can do. looking at others emphasizing small donors, and maybe we can get through tax credits and that sort of thing to help bring in smaller donors and have a greater emphasis on their participation. >> i have to leave a little early, but i do want to point out that this group has discussed at great length in the last year the amount of time senators and house members have to spend raising money, not just for their campaigns, but for
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their parties, senate, house pacs and all of that. something has to be done to cut back on that. [applause] they spend in many cases up to half of their time in washington raising money. >> that is a result of mccain-feingold. seriously. for the first half of my career, the most i could ask anybody to contribute to my campaign was $1000. do you know how many phone calls you have to make at $1000 apiece to get enough money to wage a senate campaign? >> it was indexed, though. >> now it is $2500. you don't spend quite as much time on the phone. the example of eugene mccarthy, who probably took out lyndon
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johnson in the 1968 election -- eugene mccarthy went to five people, raised $100,000 from each one of them, fully disclosed who they were, and went to new hampshire and did a good enough job in new hampshire to frighten lyndon johnson out of running for reelection. eugene mccarthy in today's world could not have done that because he would have had to raise that $500,000 from 500 people instead of five people on the phone call every thursday afternoon. you are over there at the committee making phone calls. you couldn't do it the way you used to do it. we've changed politics. the burden of fundraising is a direct result of the campaign finance activity. >> [indiscernible]
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>> i didn't hear you. >> senator snowe, do you want to respond to that, to his point? >> having fewer donors? >> eliminating limits. >> it is the amount of limits. the debt was growing up financially before mccain-feingold. people found a loophole in the existing campaign laws at the time. i think what bob is referring to is not allowing political parties to accept soft money. there was a ban on soft money. it leveraged these other groups. i think the sphere of influence went to these outside organizations as opposed to the political parties who cannot get leverage with candidates running for political office. that is something maybe we have to look at again in terms of whether or not you allow political parties to accept certain contributions. i don't know. i would have to really look at that. the question is more money in the system.
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that would have been the case. the floodgates opened with citizens united, which again struck down my provision, which was attempting to address these organizations. if they ran an ad 60 days before an election, and they identified the individual by name -- tell senator snowe to vote this way -- that would be considered a political ad, and then they would be restricted to the amounts of money they could receive. it would also have to disclose their contributors and the donor's name. unfortunately, that was struck down. if they did identify anybody by name, it would not be considered an electioneering at. >> i just want to say one thing. i do not want to belabor this point. this is such a complicated issue. it is something we are
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discussing as a commission. the problem with just allowing unlimited contributions to a candidate is exactly the problem we are seeing with the super pacs right now. it would allow a few wealthy individuals to handpick some candidates. it would've stacked the deck. you would only have their hand-picked candidates able to afford to run for office. we are sitting here talking about our concern for gerrymandering in districts that don't represent the face of america or the face of their particular states, and i think this, in another way, has a potential to totally corrupt the process. i think we need to think about other ways. i do think there has been unintended consequences for some campaign-finance reform. we need to think of other ways. maybe television time actually
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gets donated. why does it cost so much? this is a public service. i'm sorry for all the television people watching this, but maybe there is some sort of contribution back to the public good or other kinds of things.i'm very concerned with unlimited, and i couldn't let that go. [applause] >> definitely a consultative topic. i think bonnie gorman has a question with a solution to our problem. this will be our last question. she writes, women are better consensus makers than men. would electing more women to congress help relieve gridlock? >> that is yours. [applause] >> that's the way it is, you know? >> we have now a record number in the u.s. senate, 20 women. they do seem to behave -- not that they are conservatives or liberals -- they do seem to behave in a different way than the men do. senator bennett, what is your perspective on this? >> you're going to say yes, right?
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>> they get together for dinner, right? >> we did, and they still do. we have regular dinners. personal dinners. we have never had a disclosure. on occasion, we invite the women justices of the supreme court. they, in turn, invite us to the supreme court for dinner. it is more personal, but we can talk about families and friends or what is going on, issues, whatever the case may be. there's no personal agenda. the point is you build a collaborative environment in which you can ultimately build on. i think you saw that during the shutdown when the women of the senate decided to take matters into their own hands and change the direction. we had that camaraderie built
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from years of just working together, having time personally to spend together. >> we will have a final comment from raymond of north carolina. he writes, the main reason why there is a divide is because half the people believe government is the problem, and the other half believe it is the solution. thank you. you will have our last word. i want to thank the bipartisan policy center, the co-chairs and members of the commission on political reform, the edward m. kennedy institute, and the john f. kennedy library, and our great audience. thanks so much for being with us. we hope you won't stand up yet. we hope to see you on june 24 for the release of the commission's final recommendations in washington. i would ask the panel to stay seated. i welcome dan glickman, a co-chair of the commission, for closing thoughts.
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>> well, thank you. it was terrific. these panelists were outstanding. senator bennett, i wish you had some strong views. [laughter] it really disturbs me. i want to thank again vicki kennedy and the kennedy institute. i want to think heather campion and the kennedy library. trey grayson, and our great moderator, susan page, who has been responsible for all the stories. i served in the house for 18 years. there are words inscribed above the speaker's chair by daniel webster. i used to look at this periodically. they said the following, let us develop the resources of our land, call forth its powers, build up its institutions, carve out all of this great institutions to see if we also in our day and in our generation may not perform something worthy to be remembered. i thought to myself, that is the point of government.
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that is the point we are here, to perform something worthy to be remembered. even in disagreement in a vibrant democracy, the goal is always to engage the issues in a way that our descendents would be proud and get the job done for our people, and also bear fruit to the ancestors of our past, like daniel webster, that we are in this thing for the right reasons and recognizing this is not all abstract issues. america's leadership is at stake. our ability to be the beacon of hope for a world, to be a city on the hill and do the right thing for our citizens is very much dependent upon a strong and effective system of government at all levels. today, we have talked about congressional reform. over the past year, we have talked about political polarization, ways how we vote and choose our elected officials, how to increase opportunities for public service and develop the next generation of leaders. we have been hard at work behind
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the scenes, as most of the folks up here have talked about, to figure out recommendations for the future. we need the input of the public. we want continued feedback on twitter, facebook, instagram, or just the old-fashioned snail mail way to let us know what you think constructively we can do to help our political system, our democracy become more resilient. over the next three months, we will continue to discuss these issues with your input. the commission will reconvene in washington on june 24 to announce recommendations and report to the nation, the congress, and the white house reforms to improve our political system and then the follow-up necessary to get things done. after the commission releases our recommendations, we need your continued support to urge our leaders to implement the solutions. you can sign up on the bipartisan policy center's website as a citizen for political reform and help advocate for political reform
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across the country. as we close today, i remember what john f. kennedy wrote in "profiles of courage" -- "the stories of past courage can teach. they can offer hope. they can provide inspiration. but they cannot supply courage itself. for this, each man, each person must look into his or her own soul. it will take plenty of courage to make change. i hope all of us will find the courage to strengthen our democracy and ensure that america can continue to do things worthy to be remembered. thank you very much for being here. i appreciate it very much. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] resident obama is headed for
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asia today. the first stop is washington state. he will be touring the mound slide damaged areas -- the mudslide damaged areas. c-span will have the president's comments this evening. after the remarks, the president trip.for an asian those visits were originally planned for last october, it canceled. tonight, governor chris christie's aches at a new jersey chamber of congress -- commerce dinner. our coverage begins at 7:15 eastern on c-span. the supreme court has been hearing arguments. the upheld michigan's ban on using race as a factor in college admissions. they said michigan had the right to change their constitution to
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prohibit public colleges and universities to take race into considering admissions. it was said 50 years after passage of the civil rights act, the supreme court continues to cripple efforts to promote opportunity for all. also, i am deeply disappointed decision. another was heartened by the decision to uphold the michigan ban on affirmative action. some reaction from the american enterprise institute. they published the comments of justice anthony kennedy from that bench. it is not about how racial preferences should be resolved. it is about who may resolve it. there is no authority in the constitution of the united states or in this court's precedent to set aside
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michigan laws that commit his policy determination to the voters. >> during this month, c-span is pleased to present our winning entries in this year's studentcam video documentary competition. studentcam is c-span's annual competition that encourages middle- and high-school students to think critically about issues. students were asked to create their documentary based on the question, what's the most important issue the u.s. congress should consider in 2014? congress'r believes biggest issue should be gun control. so high turned toward the desk, and our receptionist, the woman who was sliding down the hallway with her back against the wall, and i looked at her, and her eyes were as big as saucers. she said, there is a man here
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with the gun. he started shooting. and he shot carol. closest to arson person sitting in a cubicle across the hallway. he was right by me, he shot me. i thought he reached out and punched me with a gun. that is what it felt like. then he shot lee law. i thought, ok, i can get out, so i stood up and i started running out, trying to run on tip toes so he would hear me. i looked out of the first landing and my coworker pam was laying there dead. she was face up. -- it to meeat big like a big bloody hole in the middle of her chest. her eyes were open. i turn the other direction, and there was a swat team, a whole bunch of officers down the corner, some of the crotch, some me,ding, pointing guns at
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yelling, run, run, you're in the line of fire. that is all i remember. we urgently need congress to address the rising epidemic of gun violence in this nation. of gunsed the ability out there. it is so high, and all the data shows the more guns are, the more likely that they will be used accidentally or in our and ger. bywhether on purpose or accident, and my fear is it is only going to get worse not better. >> if you go to a licensed firearms dealer, you have to go through a background check. that takes a certain amount of time. the gun show loophole enables people to make sales between individuals with note checking whatsoever. estimated 6.6 million gun transactions occurred during a time without a background check.
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>> for congress, for the u.s. to pass a national standard, uniform, universal background checks on all gun sales nationwide, so that everyone is safer and we have a --across state lines. >> background checks do not work. criminals do not go through background checks. >> background checks work. they prohibited purchases from 1994 until 2009. we already have a national check system in place. extending the background check can befirearms purchases implemented and it should be. >> closing the loophole and requiring private sellers to require a background check before they transfer a gun is -- for us, i cannot think of something that would make our country safer and doing just that. toit is time for congress
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require a universal background check for anyone trying to buy a gun. >> a universal background check bill will do exactly the same and nothing more. eas are 54. the amendment is not agree to. >> i am going to speak plainly and honestly about what has happened here. the american people trying to figure out how can something have 90% support and yet not happen. the gun lobby and its allies willfully lied about the bill. >> the so-called universal background check is in that one thing -- it is aimed at registering your gun. that registry will be used confiscate your guns. >> they claim it will -- this legislation outlawed any registry. nra used to support
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expanded background checks. the current leader of the nra used to support these background checks. >> we think it is reasonable to criminalandatory background checks at every sale, every show, no loopholes for anywhere for anyone. >> do you feel as you did in 1999, mandatory background checks at gun shows? that you are a dealer, is already the law. something to cook -- if you could say something to congress, what would you say? ini would ask them to step my shoes and what i experienced, working responsibly, raising money for the community come and looking up one day from my desk and having a gun pointed at my face. >> you can't have all the theoretical discussions you want about what the second amendment means and you can live in a fantasy world if you want to come which suggests that the
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more people have guns, the safer we are, but out here in the real world guns are dangerous come and we need to be more serious about them. andut yourself in my shoes the shoes of other victims, survivors, non-survivors, the families of those people. us. represent all of that change does not start with anyone law. the public has to realize the priority, and to hold elected officials accountable. >> they demand that change in the culture. that is what is starting to happen now, when people get to they havethat where had enough, that is when the culture >> changes. >>the law becomes a reduction of the changes in culture. this is unacceptable. sleeping giant that has been awakened. whoe are people out there
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are passionate about this, who are demanding action, and are not going to back down anymore. they are enough and not going to take the old answers and just go back to their lives. their passionate and they are getting organized. >> we can still bring about meaningful changes that reduced nonviolent so long as the american people do not give up on it. >> i have more hope now than i ever had. the people that congress inresents are demanding louder and louder voices and in more organized ways. that is only growing, not diminishing. at some point, yes, they are going to have to deal with it. >> to watch all of the winning videos and to learn more about our competition, go to and click on studentcam. and tell us what you think about the issue this student wants congress to consider. post your comment on studentcam's facebook page, or tweet us using the hash tag #studentcam. hadenator john bozeman
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emergency heart surgery today. his office confirmed a report but did not provide details other than to note in a statement that he is receiving excellent care and saying any some of the nations top authors nature of free speech in america. >> ladies and gentlemen, welcome to the national constitution center. i am jeffrey rosen, the president of this wonderful
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institution. the national constitution center is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. we take our role very seriously and we are grateful for it. and the program tonight is part of our role as america's town hall. this is the one place in the country where citizens of diverse constitutional perspectives can hear the best arguments on the constitutional questions that transfixed america, are in the news, fuse our history, and help you make up your own mind. we are talking about free speech in america. just this morning, the supreme court heard arguments on a case that will decide whether corporations have the same religious liberties under the first amendment as natural persons. we will discuss that and many other questions. i want you to ask -- i want to ask you to look at our website for upcoming programs.
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on thursday, calendars with will discuss his life in the law. -- alan dershwitz will discuss his life in the law. i'm especially delighted that tonight we are sharing this partnership with the foundation for educational rights in education, or fire. fire's mission is to sustain and defend individual rights, including free speech, due process, or the just liberty, and the sanctity of conscience at america's colleges and universities. it was during the first week of my job that greg from fire came to me and said we should present a panel on free speech. and we really have assembled the dream team of free speech, commentators and freethinkers alike. it is a panel with a lot of diversity.
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i think you may find that some of our panelists are more ardent in their positions defending free speech than others. i will not tell you which ones. maybe we will change our minds after listening to each other. let me briefly introduce them to you and then we will get right to it. dr. stanley fish is a florsheim or distinguished visiting professor at cardoza law school. he is well known to all of us as a contributor to the opinion editor of the "new york times." greg is a member of the bar of the u.s. supreme court and author of "unlearning liberty: campus censorship and the end of the american debate," which has recently come out in paperback. it is great. please, get it at the end of the
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show. and a distinguished university of law solo at the academy of arts and sciences, and a prolific commentator on constitutional law and comparisons about american attitudes toward free speech. and finally, my old friend. it is such a joy to local mu, jonathan, to the national constitution center. we go way back in washington, d.c. he is the most prominent defender of gay marriage in this country, as well as one of the most persuasive and eloquent defenders of free speech and his recent and calm --reasoned and calm voice is recently expressed in paperback as well as many articles you have greatly enriched public debate. i will begin with you, jonathan. yesterday, the supreme court delayed a decision about whether
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a photographer can refuse to photograph gay weddings because of her religious objections and claims that religiously motivated individuals can refuse to serve gay people as gay marriages are popping up with greater frequency. your work has been that the first amendment is good for gay people, but a regime that allows hate speech is good for minorities in general. do these recent cases cause you to re-examine that thesis? >> no, they don't. i'm not the best person to comment on the legalities of these cases. i don't know the case law. but let me give you a personal perspective on how i think about these cases. there are a bunch of these cases. they all involve in one way or another the class of religious conscience with antidiscrimination law, which often means homosexuality, gay
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marriage, in the case of the obamacare law, it means contraception. and there are a lot of these. there was a case in colorado that is not a legal case because the suit has not been filed, but a christian dog walking company fired a customer because they agreed with legalized marijuana. they said, get your dogs and get them out of here. we are not going to walk them anymore. i regret this. this is not the kind of society that i want to live in, where people are taking the side. i urge the gay community publicly and privately that the right answer is sensible accommodation worked out legally through the process. i worry that first amendment jurisprudence, which locks in one answer for ever. we lose the flexibility to negotiate. there is no reason we need to have one national rule. different cities and states are striking different valances. and gay people, for example, or abortion rights activists, for example, and people of religious
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faith should be forced to sit down at the table and negotiate over statutes and strike a balance. >> wonderful. greg, you have spent the last 13 years defending free speech on campus. how do the battles today look different than they did when you started? and what are the most important battles today? you recently noted that you have a growing list of 120 speaker controversies in recent years to my including high-profile disinvitations. what is the state of free-speech battles on campuses today? >> i'm the one weird law school student that went to law school to do first amendment law. my passion was free-speech. i don't know why i came to that, but that is why i went to law school. i specialized in it.
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i took every class at stanford offered on free speech. i even did six extra credits on free speech during the tudor dynasty because i loved it so much. and even with all that preparation, when i showed up and became the first legal director of fire in 2001, i was stunned by the kinds of things that can get you in trouble on a college campus. and 13 years later, i'm still stunned on a daily basis. that is the only reason i wrote the book, because i got tired of people saying, ok, that is one example. i talk about dozens of examples. there are a lot of trends, but one trend of a lot of trends is that it felt like when i first heard in 2002, diversity students would at least make some kind of bow to some kind of higher purpose to what they were doing, even if it was entirely disingenuous.
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they would say, and don't make fun of tuition prices or don't make fun of the dean in the name of tolerance and diversity. they would invoke these sometimes sincerely, sometimes for the greater good, but sometimes only half sincerely. in the past two years, i have seen more cases where they are not even bothering with that. it seems there have been a lot of these very old-fashioned examples of, just don't criticize the university. i don't have to justify it. just do as i say. which i think is the result of a lot of bureaucratization and just giving power for a long time. every time around this time of year, a lot of speakers get disinvited from campus, or they are forced to withdraw their names. this invitation season happens every year. that is not so much a first
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amendment problem as it is a cultural problem. we are teaching students to think if you don't like the opinion of someone speaking there, you don't challenge them, you chase them off and get them disinvited. i think that is the wrong way to think about this. >> great. eric, not long ago, the president of the united states and the president of egypt disagreed about how to treat a free-speech issue. this was the video of the muslims that was to have led to the benghazi attacks. under pressure, the president said it needs to be removed because it shows a group of leaders in an entire religion, which is illegal in egypt. and the president of the united states was defending google and youtube's right to post the video, but caused momentarily -- but caused momentarily on that because it incited violence.
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but google and youtube refused because they said it is not criticizing a religion, but a religious leader. our non-american free-speech traditions, they are obviously very different. america is more protective of free-speech. is that the right thing? and did google do the right thing? >> it is a bad thing. i teach international law and one thing i instruct about again and again is between american norms and norms in other countries. this is sometimes put under the rubric of american exceptionalism. one way that the united states is quite different from other countries is in its commitment to free speech. you can make three distinctions. there are countries like egypt -- and you know, authoritarian countries obviously do not like free-speech and there is no reason to want to be like them. but european countries have a different attitude toward free-speech from that of the united states. europeans tend not to be as absolutist. they take seriously the fact that people can be offended by
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speech, that it can cause turmoil, as illustrated by this video. and what is striking is that these human rights treaties, which have provisions about freedom of expression, but the provisions are much narrower than what you find in the united states. the provisions will say free-speech is a right, subject to various constraints, such as public morality and public order. i think president obama did a reasonable thing. this video is causing foreign-policy problems for the united states. the united states is trying to improve relations with muslim countries and he wanted to at least show people in these countries who don't share our views about freedom of speech that we respect their views. he couldn't, obviously, order google to take on the video. if he had that power, it would have been an interesting question whether he should use
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that. i think people are wrong to criticize president obama in this case on the grounds that, basically the rest of the world doesn't share our views and they just have to get with the program. they've got to be like what? like us? and if they are not like us, then new cares about them. that is not a practical way to run foreign-policy. and we love our first amendment so much and we think very proudly of american traditions about freedom of speech, which actually only go back a few decades, not to the beginning. but this is such a part of the american self-identity that it very -- it's very hard to make compromises even when they are warranted, and that is a problem. >> great. professor fish, you have written a book on free-speech called "there is no such thing as free speech, and it's a good thing, too" in case that tells you where he falls on this spectrum that i suggested.
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and now you have written about academic freedom. what is your view of the relationship between these two concepts? >> before i answer, i want to say how much i agree with what eric just said. if you recall salman rushdie and the fact that there was an order issued against him for the writing of the satanic verses. i was at a conference, a humanistic conference -- don't go to humanistic conferences. [laughter] but i was at one, nevertheless. i used to be in that game and this topic came up and someone stood up in the audience -- and they meant it, this was not a joke -- and they said, what is the matter with those iranians? haven't they ever heard of the first amendment? [laughter] the relationship between academia and the first amendment can be simply described.
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free-speech as established by the first amendment is an inclusive, democratic idea. academic freedom is a notion that only lives coherently within an academic structure, which is determinedly exclusive. what academics do -- our trade is to make judgments on each other. and what we do is not foster speech or to ensure that it will flourish, but rather it is the case that we devise mechanisms by which we give ourselves the right, at least those of us that have tenured positions, to say who can and who cannot speak freely. another way of looking at the difference between academic freedom and free speech is to think of the topic of holocaust
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denial, which has been with us for quite a while and will be with us, i predict, for a very long time. holocaust denial in our society under the strong absolutist first amendment abuse that eric referenced is something that cannot be stigmatized or oppressed. holocaust denial can be promoted on websites, radio programs, videos, and so forth. but in the academy, holocaust denial is intricate -- holocaust denial is intraday did -- interdicted. it is not that it never rises, but when it does arise, it never arrives as an option. it is not regarded as an alternative vision that one might sincerely have. rather holocaust denial is regarded as one might view
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"elvis is dead" denial. rather -- so it is therefore the property of kooks and crazies. you can get promoted in a history department for writing about it, but if you advocate it, you will neither get hired or promoted. there is the structure of inclusion and a structure of exclusion. but this goes again to eric's point. the first amendment that we now have, which i would call not in a friendly tone a libertarian first amendment. the first amendment we now have is a recent development. and i would say it only emerged fully in 1964 with the famous case "new york times" versus
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sullivan, which is a case that is dear to the heart of all free-speech ideologue. i think was one of the worst decisions issued by the supreme court. before "new york times" versus sullivan, it was possible, and in fact it was done by the supreme court to withdraw protection of the constitution from speech either because of what it did, the effects it had, or because of what it said. there was a content test and then the effects test. the effects test was called a bad tendency test. at the beginning of the 20th century, the idea that some forms of free-speech have a bad effect and do not deserve protection. that was followed by the clear and present danger test that said, well, yes, the effects may be bad, but we should wait to see how bad they may be, to see
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when the danger is imminent and then stepped in. but it is still an effects test. the content test was a said that's -- it was a test that said, look, there are some forms of speech that are worse and they do not deserve constitutional protection. i have one of my favorite notes from a 1942 case. some utterances are of no social value and any benefit derived by them is outweighed by the social interest in order and morality. all that changed in 1964 when the "new york times" versus sullivan court said that all speech must be protected independently of either its content or its effects. and independently of whether he was defamatory or it causes stress of a variety of kind, because the important thing in
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the case was to keep the conversation going in a wide open, robust, and uninhibited way. >> [indiscernible] >> right, which i sometimes call the john wayne theory of the constitution. and that was the beginning of the end of everything. [laughter] >> and that part of the world ended in 1964. >> actually, it was the beginning of the beginning of everything. let me remind you what the world was actually like in 1954 when the magazine you've never heard of -- because i hadn't until about yesterday -- called "one" published in l.a. -- >> oh, yeah. >> good for you. >> it was the first openly gay intellectual magazine. it was not publishing sex ads or anything like that.
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it had articles and short stories and it was openly gay, and the united states post office shut it down because the content was unacceptable to society. they took it off the stand and said you cannot mail it, and just for good measure, the specific issue that they had as a cover story "you can't say that" about the censorship policies of the government. that is what they were doing. there was no reasoning at all and the supreme court struck down with the postmaster general had done, creating a wide-open field for debate of gay rights in this country, a position considered obscene and dangerous to children in my lifetime, and allowing the field open for people like me to make our arguments and eventually to win those arguments. >> i think you can win the arguments by gaining control of
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the political process, with since that is the way the arguments are always one anyway. >> the ideas won the arguments. we had no political power. >> ideas never win anything. >> i'm delighted that this first panel does not, first of all, need a moderator. >> go away. [laughter] >> and that the debate has been joined so fiercely and that, in fact, we had fighting words. now we know where everyone stands. these self moderating panels are so much easier to preside over. we have on my left the two first amendment libertarians, as professor fish put it, who defend the american free-speech tradition, which holds generally that speech can only be bad if it threatens and is likely to cause imminent harmful action. and on the right, and we actually did not plan this, i will call them the first amendment dignitarians.
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you can correct me. who are defending speech that blasphemes groups or defends their dignity may be banned. and i want to ask greg as a libertarian to respond to the dignitarian argument that the responses from the muslim video should have come down. the google people were not convinced there was evidence of imminent threat. in retrospect, it turned out they were right. the video did not cause action. 22-year-olds in full clubs were basically making a decision in the mill of the night. -- in flip-flops were basically making a decision in the middle of the night. did they make a better decision than the president? >> i wrote two article on this. almost as soon as the videos went up -- i mean, people who are contrarians on free-speech on campus are actually am i in my experience, in the mainstream. 59% are those that would be laughable if challenged in a court of law. they have been defeated every time.
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the extent to which free-speech has been appreciated on campus has taken a long decline in my own career. and there is an advantage to the tudor censorship. one of them is the idea of where we came from, and the idea of the spectacle of academics arguing essentially for blasphemy laws, saying we should be banning speech because it offends someone religious faith -- and i remember someone challenged me on this. blasphemy was the first freedom. and i said, you are not actually free unless you can question someone else's ideas. and that was so established that by the time you get to the establishment of the first amendment, it is relatively taken for granted. now, to the argument of whether or not we recently -- only recently started taking free-speech seriously, i also dismissed that argument. milton was writing about free-speech in 1644.
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i would like to point out that almost as soon as the map has had the power to communicate ideas, a were arguing for free speech. even long before milton. free-speech was a powerful weapon and a powerful goal throughout intellectual history, starting as soon as people were allowed to speak it out loud. what stanley is conflating is that the first amendment is not found to apply to the mistakes until 1925, and that is because of something called the slaughterhouse decision. they could not have actually applied it before. the 14th amendment came out during the civil war, and unfortunately there was a stupid decision by the supreme court
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that prevented that from having full force until 1925 when it started to be incorporated through the duke -- due process clause of the united states constitution. but there were better and better protections of free speech, with a little bit during the red scare of the 1950's. but of course, i see 1964, new york times versus sullivan as a wonderful time. can you imagine a rand paul or sarah palin being able to sue a journalist because they said something that might be vaguely critical of them? that is what they are arguing for. they are arguing for the right of politicians to scare journalists for the rights of -- through the rights of defamation. do we want our politicians to be able to sue us for saying mean things about them? >> it's the same thing as lying about them. >> you have to make reference to the very opinion you are decrying. because that is for the actual malice came from. but there is this flourishing
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political culture in europe where they had strong defamation laws, and it is way less democratic than it is in the united states. and people can go into politics with this system that we have and not have to worry about inge -- being defamed or humiliated. >> i called it europe worship. my dad grew up in yugoslavia. my mother is british. i spent a lot of time over there. and it's funny how much it mystifies brits and my friend about how much you will hear, wow, europe has such great laws with regard to speech. we would never tolerate their national security laws. these are laws that are in canada, australia, britain, and the recent -- >> these are not police state. canada is not a police state.
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what is the harm that is taking place, the concrete harm that is taking place -- >> people say there's a whole lot of chilling going on over there. it is getting hard, people say, to criticize the united muslim states to my by the way. there is a lot of chilling effect going on. i happen to have some in my pocket. [laughter] belgium has passed a law just the other day against advocating sexism. for purposes of this act, the concepts of sexism will be understood to mean any gesture or act that is evidently intended to express contempt for a person because of his gender or regards him as inferior, or reduces him to his sexual dimension, which has the effect of violating someone's dignity
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either in public meetings or in the presence of several people, or in documents made public. >> was the law passed? >> yes. >> i take your point that these are not police states and europe is a wonderful place. there is a lot you can do before you run into serious trouble. but as a member of a national minority group, i would rather be here right to not have to worry about some prosecutor coming after me because he doesn't like what i said. >> let me take up something greg said about milton. he was referring to his 1644 tract, where there were extraordinarily powerful celebrations of free-speech full stop in fact, some of them are chiseled on the wall of the new york library. two thirds of the way through he said, of course, i didn't mean catholics.
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--them, we burned. [laughter] i want to say that everybody has a kicker up his sleeve. if it's not catholics, it's something. there was free-speech talk for a long time until the disciples went to -- of farrakhan were walking around saying things and they said, we can have that. i want to say that structurally and philosophically, it is, in fact, the decision that everyone has, even if they are denying it. >> let me, -- we're going to take a vote on this at the end [laughter] and you will have to decide whether you are libertarians or dignitarians, so listen closely. and the audience can ask questions. is this debate between libertarians and unitarians and
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whose law is going to prevail being made obsolete by technology? we are not the president of egypt and we are not president obama stop we are these 20 -- made obsolete by technology? we are not the president of egypt and we are not president obama. we are these 22-year-olds in flip-flops. but for those who do not buy facebook, then the decision will not be made in the courts, but by young lawyers with internet service providers. >> for me, what is most interesting about that -- and i'm starting to see a lot of these hackneyed arguments for or against freedom of speech. the one thing that this twitter and facebook people get probably better than anyone is that the value of speech is not because discussion will actually let us understand what the form of truth is. it is the fact that i now know
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what you are angry at me. i now know what the price of rice is over there. all of these little truths that can be revealed. if you look at twitter, you have an unparalleled chance to see something as close as we are ever going to get to the collective unconsciousness of the species. >> it is very discouraging. [laughter] >> it is come up but is important to know what we are like, for good or for bad. i make fun of my own people for having the british side, for having what i call, oh, we are taking the dinnertime response to unpleasant talk. we are just not going to talk about it. meanwhile knowing that people have bad opinions, and how people respond to them, or that they have strange ideas is incredibly valuable. the ostrich approach does not work and it cannot work. >> i don't know that technology will change anything because you made the case that government can bring lawsuits against
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internet service providers. it can bring lawsuits against google and require google to take things down. there is a huge amount of stuff that is said on the internet by anonymous people that nobody pays any attention to, so there is no need to sue them. nobody cares what they say. if it is somebody like a politician or a prominent person, than ever but he knows who he is and where you can sue. back in the early stages of the internet, the trend was actually the opposite. there was a famous case involving yahoo! and friends. yahoo! had memorabilia on their website and the french government sued them. the concern was that if this website appears everywhere, then french defamation law would apply in the united states. that turned out not to be the case, because these companies can control what appears on
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their websites in different countries. i think it is a bit of a red herring. these google guys, they can get sued just like anybody else. they can get fired just like anybody else. i don't think it will change much. we have seen turkey shut down twitter. what people forget is that the internet actually operates because the government allows it to operate. it owns a lot of the infrastructure. the nsa can tap into it and figure out what people are thinking and saying. we are not going to live in a libertarian society. >> eric said turkey shut down twitter. what happened then is that great -- greek football fans had a habit of saying that ataturk, the founder of turkey was gay.
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not because it was true, but it was illegal to say that in turkey. google was asked to take it down. they initially refused. the turkish prosecutor said, take it down all over the world. instead, google just blocked access to turkish users using their internet protocol. and as a result come at google was turkey -- as a result, google was banned from turkey for a couple of years. and she had to decide whether this video is blasphemous, in which case she will take it down. and then it is free-speech. and by the way, she doesn't understand turkish. these lawyers are making these decisions. are you confident that they will make the right one tackle >> i -- the right ones? >> no, i'm not confident that they will make the right ones anymore then the laws like jonathan rehearsed will no longer be passed. what i am confident in, however is that the strong free-speech doctrine has no reality in fact.
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i would go back to a formula that the great judge learned hand -- and i'm sure everybody will know. it is a cost analysis. he said, you have to calculate the harm that will be produced i allowing the free-speech to flourish, and then balance that against the harm that will be produced by trying to regulate it. and that suggests it is a case-by-case analysis and that you have to take account of the harms without completely surrendering to them, but not ignore them and therefore surrender to some extraction -- abstraction. and there is a book that made this clear better than many in many years. he is a professor at nyu and a native new zealander. there are some international
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flavor to the defense of his work. >> is it realistic, in terms of taking into account who is making the decisions? waldron is forcing european regulators into their roles in court and so forth, but really, it is the terms of the service providers that are deciding things. is it the ability of european regulators to enforce their will, overtaken by this new technological world, even if you're persuaded by a? -- persuaded by it? i'm saying, are the libertarians just missing the point? >> i agree with eric on this. i think that although there are a lot more tools for freedom of expression popping up, as no one in this room needs to be reminded, there are also a lot more tools for monitoring expression popping up.
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one reason you always want to be on a panel with stanley fish, if you can, is that within five minutes he will go to the fundamental issues, and the technology does not begin to address the fundamental issues and that is still very relevant. what kind of society do we want to have? and what will the race it -- the basic ground rules be? >> you talked about twitter. what was the collective voice? there was a twitter scandal recently, one every week. the chief pr executive was fired from a company and she tweeted "i'm going to africa, i hope i don't get aids. just kidding, i'm white." and she was called a racist. and one mother was calling for her to be fired. would you defend her right to say that?
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and how could you defend it? >> is a crazy unsympathetic case. if you are a pr person and you make a statement that stupid, you will get fired for it. what was amazing to me was the extent to which it turned into an out for blood cause for the people. she was on a flight and by the time she got off the flight, she was an international villain. i said this in a lot of the way we debate with each other. social media has sped up the way we argue, but has also sped up polarization and this sense of tribalism. i think the ability to argue this quickly -- i am optimistic on this. there will be some lessons about what it means to live in a tolerant society, but i think right now we are going through some ridiculous growing pains.
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ryan holiday wrote a good article about this recently called "outrage porn" about how we are addicted to outrage. it really gets our juices going. and in the anti-bullying movement, i sometimes you see people harnessing aggressive action to target what they are wanting to go after. it is great conversation that we are having that is teaching us a lot about our nature. and i would not want to stop it necessarily, for the idea that maybe we can make ourselves different, but take a long, hard look at who we are. >> the definition of the study is that it has to appeal to the senses, but also turn you on an gross you out at the same time. >> i agree.
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[laughter] >> we all of us would want to distinguish between the pressures that can be brought against free-speech for my which can be the social and cultural and illegal pressures, which can be even criminalization. congress said recently that nothing would be lost to the world if the entire national basketball association would be shut down. the only result would be an increase in street crime. when that congressman said that, within 20 minutes he had to -- this is my new favorite phrase in society -- walked it back. i hope nothing -- none of your having to walk anything back. but he is paying a price. it is not a price exacted by any legal regime, but a price exacted by the cultural nuances. >> i think we all agree on that. where you and i probably disagree is that i think those
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cultural means are by far the best mechanism to discipline hateful speech. in fact, in official means, when you get authorities criticizing, that is counterproductive. >> and i would say in response to that brand eyes like a statement -- justice brandeis like statement. he said that that speech is only more speech. and he also said that sunshine is the best disinfectant. and my only response to that is that it is the only counter argument in all of recorded history. if you allow something it like that into the general atmosphere -- if you allow something i call it costs denial into the general atmosphere, then you will have a growing and growing. >> my father studied 12 century russian history very seriously.
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human history is such an argument for freedom of speech. when you start looking at the blossoming of -- there is a great book about it that talks about liberal science and the rise of an intellectual system in which there is questioning. >> we are going to have a book signing after the show. >> it gets into the idea that if you disagree with someone about fundamental issues, you better chase them off, behead them, set them on fire, ostracize them, get rid of them. >> sounds good. >> wow. that is human nature. the idea of hearing out people that you disagree with is innovation. the theory is going much more in the direction of sophisticated speakers do not believe in free speech. or when you let pilots talk back to their copilots or you have an institution that you have a healthy conversation, the
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evidence is getting better and better for free speech. but we are losing faith in it. >> [indiscernible] i'm sure if they did, they would be fired. >> but the feedback they would get -- >> not all information. that is the difference between us and you. time and again, there is an in." an impirical question of whether you want speech. we're is another example -- rwanda is another example where freedom of expression led to a holocaust. there are other places, like the united states now, where free speech is not as harmful, and
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protections are necessary -- are less necessary as in these other places. but it always requires a pragmatic judgment. a fundamental approach you take based on some reading of history is not appropriate under any circumstance. >> i would argue that, in practice, the balancing test that we do so from the very quickly ends with shutting down governments and people using their political power against those without political power. but can you have these very fine tune attests that you talk about? i would argue him. clean that history is absolutely on my side -- i would argue absolutely that history is on my side. i would argue that hate speech has been a resource for gay people in this country. a man died the other day named fred cell.
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a crazy person. what he did was illegal in any country in europe. he picketed with signs that said "god hates fags." and that is pushing it even for me. but the thing is, he did so much to expose the hate on the other side that it helps us. when they are out there front and center, we have 20 years of an extraordinarily successful minority rights movement in this country to prove it. >> it can work that way sometimes, as in the example you've just given. but it can work at other ways at other times, which is what air just said. i think in this context of anti-semitism. there is a general feeling in this country that anti-semitism, at least in the united states, is a phenomenon of the past. or at least the kind that was very active in the 1930's and 1940's in this country.
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and i happen to believe that that kind of violence -- a virulent anti-semitism could happen tomorrow. this may simply be a feature of an unfortunate fact of that i'm older than you are. >> i have to ask both the dignitary and and libertarians about this morning's news, the most important free-speech case of the year, the hobby lobby case involving the question of whether a religious motivated owner could refuse to cover contraception under the formal care act as a visit religious motivations. -- under the affordable care act because of his religious motivations.
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and the question comes to whether corporations have the same rights as individuals. you are skeptical of libertarianism in our earlier discussion. did i the court go too far in citizens united and should it not have gone this far with hobby lobby apoplexy i think -- with hobby lobby? >> i think it did. the united states doesn't always protect unpopular people or weak groups. it can be -- once it is in play, it can be used by anyone am including our full corporations and powerful groups. from the 1970's to the 1980's, first amendment absolutism went from a liberal position to a conservative decision and it is now applied to property rights and the rights of corporations. hobby lobby, really, instead of a religious freedom case, it is in the same ballpark.
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my view is to let the political process work out these compromises. and another thing from what jonathan said earlier, which i think is intentional first amendment absolutism. if you think people can look at these things as religious conscience or rights of women or other beliefs and concerns, then you don't want the supreme court and the other courts applying this doctrine in order to defeat these compromises. >> i want a libertarian response to this. do you think it shouldn't enforce the first women to struggling in this context? there are so many liberals that defended citizens united. are you barking up the wrong tree in embracing the first amendment, which has been used to strike down many laws of the regular tri-state? >> -- the regulatory state? >> i would not say that it wasn't until the 1970's and
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1980's that free-speech became less of a liberal issue. on campuses, i end up writing a lot of people that come from the left side -- the left side of the spectrum, who think that free-speech should be limited for any number of reasons, sometimes noble and sometimes not so much. but i think the tactic, i actually agree with the supreme court for the most part on freedom of speech issues. we are saying, oh, now liberals don't believe in free speech because conservatives can use it? that is a startling argument to me. it is a negative -- is it a negative thing that it is available to everybody? >> do you think hobby lobby should be protected? >> i don't know enough about hobby lobby. i do think citizens united was correct. >> jonathan? >> hobby lobby is not freedom of speech. i tend to think that
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corporations are not people and the first amendment should not be applied to them as they are people -- as if they are people. but it is not an area in which i specialize. >> once again, i indicate my agreement with eric. as far as citizens united goes, the topic that was discussed in stevens 90 page dissent and dismissed in the majority opinion was the topic of corruption. that is, is it a matter of impure coal fact -- impirical fact that money spent in great amounts is the corrupter of the political system or is the system corrupt? >> one of the reasons why i make the point that we are not -- that it is not complete free-speech absolutism is that
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even the base end of the law that i find academics being so dismissive of when it comes to freedom of speech, there is something called strict scrutiny. in constitutional classes you always come up with a scenario where, in that case, and that is how you end up with the incitement doctrine and those cases that we agree upon. but when it is this highly subjective standard that gives also flawed people the power to decide what they like and dislike, that is amazing how quickly administrators and students learn the code words. >> you cannot ignore subjective standards in the law. they are all over the place. there are restrictions, which gives the government the
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authority to say protesters can be over here, but not over there. or you need a license before you can march. those race, getting questions and the judges have to decide somehow, using very subjective standards. the issue is not whether the standards are subjective or not. the issue is how much the democratic process will determine the extent to which people are permitted or not permitted to say whatever they feel. >> but an essential part of the analysis in time, place, and manner law is the viewpoint of neutrality. the closer you get to the expression of pure opinion, that is when you are on the clearest ground with the law. that is a pragmatic standard. it works very well impirically and it makes the point that my opinion is something that i should be entitled to and can be very well-maintained, while at the same time trying to limit
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the influence of bias of power. >> even in defamation lies is still possible to defame someone to my specially a private person rather than a public person. if you defame someone, you are simply expressing your opinion. that means a court or judge will have to decide whether your opinion has enough evidence. but that is not entirely right, though. when it comes to defamation law, one of the central questions is whether or not this is a false assertion of fact. and that also makes perfect common sense. am i saying i hate this person? that is not defamation. if i'm saying i know for a fact this person is a pedophile, that could be defamation, particularly if you knew it was lying. a lot of these situations are less of a problem that i think you are making them out to be. >> but what we've had with defamation law is the rise of public insistence. it is not that they cannot be
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defamed, but the standard is much higher to defame them. and those who have dealings with public officials are now grouped with those public officials. and the effect was to weaken the possibility of destination -- of defamation. >> and earlier this month, the new york times celebrated its 150th anniversary. happy birthday. we have a series of audience questions. i will jump right in. what assurance do we have that gay rights advocates will not trample on the first amendment rights of those of us who have the nerve to disagree? jonathan. >> there are a lot more of you than there are of us. and that is the assurance you have. it still has to be worked out in the political process. and there are tons of cushions -- of christians out there and they will stand up for their rights and they will be heard.
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i'm confident that we can and will get to a point where in 10 years we will have a pretty good, well agreed upon set of rules that we will have worked out for where these boundaries will be. >> is there a limit to hate speech? if so, what where is it? >> i don't believe in a limit to hate speech. >> i don't believe in a limit to hate speech. we have very well outlined what harassment looks like. in the law, it sounds like what it is in the english language. if it is severe, targeted, harassing someone. that is a good guideline for what you are not allowed to do. merely having an extremely noxious opinion, i think that should be protected. and i would go farther to say that it is one of the aspects that truly reflects the realism. it is good to understand people from different classes, age groups, backgrounds.
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they may have an opinion that you right now consider obnoxious. there is a great example of bertrand russell being kicked out of cooney when he had a job there in the 1940's before academic became straw -- strong in the law. he was kicked out because he thought that masturbation was ok and he was tolerant of homosexuality. he was kicked out because these ideas were considered immoral. ideas that we now take for granted have been affected in the fairly recent past. that is crucial to remember. >> i think that is wrong. that is, i think it was wrong for the city to kick out bertrand russell. but what makes it wrong is the city, and the court allowed it -- how should i put this? what was happening was that russell was being hounded out
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because of his political views, not because of any expertise that he might have had in philosophy or mathematics. can that general principle, which was introduced in 1915 by the association of university professors in his general statement on academic freedom and tenure far predates the u.s. -- the new york times versus sullivan, which i strongly support. but when academic becomes political action, professors should neither perform political action the classrooms, nor should they be shut out for what they do outside the classroom. but new york times versus sullivan has given us holocaust denial.
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>> do we all agree that holocaust denial is a terrible thing and should never be allowed? recs i think that is a different question. >> i think that banning holocaust denial is like global warning -- is like fixing global warming by breaking your thermometer. [laughter] >> we have a society that is generally tolerant and people are making all kinds of arguments about all kinds of things and these are -- this is one of the crazy arguments people are making. it is probably not a good deal -- big deal. but if you have a country with a small number of jews and people don't like them and this idea is beginning to develop and has not quite yet amended the society, i think you could make a pretty good argument for a law against holocaust denial. and i think, and germany has a kind of penance for what happened in that country.
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they have laws against holocaust denial and laws against espousing naziism. a problem with that view is that in situations that are actually a problem with that view is that in situations that are actually like the ones you describe where there is a small amount of minorities, you're not going to pass laws that are going to protect the small minority. you are going to get what you see in nigeria and uganda right now. you are going to have the majority of passing laws to oppress the homosexuals and using speech laws to oppress the homosexuals. >> speech laws were used in order to allow the ragtag nazi band headed by someone called frank to march in illinois. it never occurred for other


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