tv New York City Bar Association - Freedom of Speech CSPAN December 27, 2018 10:05am-11:52am EST
tour inside the senate chamber. the old senate chamber and other exclusive locations. next, constitutional law experts and attorneys discuss freedom of speech in the 21st century. you will hear about hate speech, social media regulation, white house media access, and controversial campus speakers. held by the new york city bar association, this is an hour and 45 minutes. >> good evening. i am roger juan maldonado, president of the new york city bar association, and i welcome you to tonight's program on the first amendment in 21st century america. we started this first amendment series last year, following the tragic events at charlottesville. those events, and the media's coverage of those events, led many of our city bar members to openly question -- what does the first amendment's protection of free speech mean in these times?
as we did last year, we will try to leave time at the end of the program for questions, but, as occurred last year, we cannot guarantee that we will get to each of your questions. this area of law, as i was just discussing with panel members now, clearly raises many questions and requires very difficult line drawing, including whether, and if so, how, to strike a balance between many competing interests. our panel, therefore, is here to help us take a step back and think collectively about these very hard questions. now i am speaking to our association members. we need to consider these
questions both as lawyers and as members of the communities in which we live and work. as for our esteemed panel, i can't possibly give you all of the complete biographies. we do not have time to go over all of the awards, all of the honors, all of the interactions they have had, both personally, and through television and other media and through their students, all of their incredible input into the law of the first amendment. but i do urge you to pick up the fliers on which you have access to their bios online. because, please take a look at them. they are indeed truly impressive. for tonight's purposes, i will be very brief. starting all the way on my right, we have alex abdo, who is a senior staff attorney at the knight first amendment institute. he has been at the forefront of litigation relating to nsa surveillance, encryption, anonymous speech online, and government transparency.
we have next, daniel kornstein, an accomplished trial lawyer, who has litigated several notable first amendment cases, including filing an amicus brief involving the trademarking of the name "the slants." we have next to me, nadine strossen, who is the john marshall harlan professor of law at new york law school. from 1991 to 2008, she served as president of the aclu, the first woman to hold that position in that organization. of particular relevance here, nadine's book "hate: why we should resist it with free speech, not censorship," was just published this past may. to my immediate left, we have our moderator, jamal greene.
jamal is the dwight professor of law at columbia law school, and his scholarship teaching focus is on the structure of legal and constitutional arguments. next to him, we have floyd abrams, one of the nation's for most thinkers, speakers, authors, and litigators on first amendment issues. he has argued frequently in front of the supreme court, representing major media and news outlets, including the "new york times" in the pentagon papers case, and filing an amicus on behalf of mitch mcconnell in the citizens united case. finally, we have our frequent speaker here at the city bar, our member, carmelyn malalis, who was appointed chair and commissioner on the new york city commission on human rights by mayor de blasio in november 2014 and who has been steadily revitalizing the agency in all respects. prior to that, carmelyn was a partner and practice group head
at outten & golden, where she represented employees on a broad range of issues. a few logistics. there are index cards and pencils on the back table. if you have a question during the program, please pick up a it will be collected. please, only one question per card. as i indicated, based on last year's event, i cannot promise we will get to all of them. we will do our best. i hope you enjoyed tonight's program. enjoy tonight's program. i encourage you to participate as best you can, and with that, i will hand it over to jamal greene. jamal: thank you. welcome, everyone. thank you for coming. we have a lot of topics that we could get to. we will kind of see how the
evening goes, but i thought we would start out by kind of trying to get everyone on to more or less the same page in terms of legal doctrine, and i mean this in a very kind of brief summary way. i of course teach constitutional law, so i am kind of exposed to first amendment and free-speech law all the time. some of you, it may have been a while since you were in the classroom on some of these issues. i thought that, given the nature of the topics that have arisen in recent years in first amendment and free-speech related law, i thought i would actually asked daniel to get us started by just saying, a brief overview on a couple of broad topic areas, one being the law surrounding incitement and hate speech, and the other what is known as public form doctrine,
so how does the first amendment apply differently in different institutional settings. just to get us on the same page as we start off. daniel, do you want to get us started? daniel: thank you, jamal. the governing doctrine on hate speech really comes from the brandenburg v. ohio case in 1969, which most people think is an improvement on the clear and present danger case. it really has two elements. it essentially says that the advocacy of the use of force in violation of law cannot be prohibited or punished unless it is, number one, directly inciting or producing imminent, lawless action, and two, likely to produce such action. it is a lot more restrictive than clear and present danger, it gives a lot more breathing space to the speaker.
but it is a perfect example of the tension that most questions in the first amendment area bring up because there is a conflict between values. is the value of free speech, the protected area of the first amendment outweighed or less than the value, in this case, of violence, public disorder, and we see over and over again that kind of weighing, even absolutist, justice black, most notably, he would push the doctrine into, well, is a covered by the first amendment? in the 1960's, when sit in cases and armband cases came
up, justice black would say that is not covered by the first amendment, therefore it is not a problem, but that involves making choices as to which values you count more. so we see it over and over again. in the public forum area, the general doctrine is that if a space, whether it is owned by the government or by a long tradition, has been open for people to make discussion and to talk about public issues, then it continues to have that quality to it. and that is something that i guess hyde park speakers' corner in london is the best-known international example of that. but again, over and over again, whether it is in the libel area, or just triggering warnings, or anything else, it is always which value do you esteem more highly? and i think it explains a lot of the cases.
my friend floyd in the citizens united case had a number of steps. one, do corporations have first amendment rights? does the first amendment right include making political donations? and then, does that outweigh the integrity of the electoral process? at each point, there are choices. jamal: thank you. i want to get a bit more concrete now that we have an overview of generality. very recently, as many of you will remember, there was an incident surrounding the press pass for the white house of jim acosta, the cnn reporter. he had a heated interaction with the president, after which his
regular access press pass was suspended. alex, can you explain a little bit about what the kind of kerfuffle over that issue was? what is the legal issue? because of course, the white house is not hyde park, but of course there were free-speech issues raised in the case. alex: thanks, jamal. it is a delight to be here. let me back up and start with the public forum doctrine were -- more generally. it is true that there are many places that are often open for expressive conduct or activity that are not what we think of as traditional places for free speech, like sidewalks or parks. and there is a document that holds that when a government opens a space for expressive activity by the public, the government relinquishes certain
rights, including a right to exclude people from the space for arbitrary reasons or reasons the viewpoint of the speech they are engaging in. it can impose limitations, however, in these spaces that has been opened up to the public. what are called reasonable time, place, and manner restrictions. the quintessential public forum is a town hall meeting, where a city may do its business and invite commentary by the public, that is considered to be a forum because the city has opened up the space for commentary by the public, but it can impose certain restrictions. it can limit how long the people stand at the podium. in some cases it can say, we are going to talk about this subject, not that subject, but it cannot exclude people for arbitrary reasons or because it does not like the content or viewpoint they are expressing at the forum. that is the background law that is kind of brought to bear on the question of jim acosta's press pass. his press pass was revoked, it
seemed, on the president's dissatisfaction with the questions he was asking. if you remember, he was asking the president repeatedly about his characterization of them migrate caravan as an invasion of the united states. and the president, cannot remember if it was later that day or the next day, he had the press pass of acosta revoked. and cnn went to court arguing that white house press briefings are a form of public forum, and cannote president exclude people from those briefings for arbitrary reasons or reasons based on viewpoints, and they argued that acosta had been excluded on the basis of viewpoints. and it turns out there is a decision on point in the d.c. circuit, the circuit in which cnn filed the case, a case from the 1970's, 1977, sherrill v. knight, and it involved a correspondent for the nation whose press pass or request for
a press pass had been denied on the basis of supposed security concerns. argued heed suit and had not been given the process he was entitled to for denying the press pass. and the d.c. circuit held that white house press briefings are where first amendment rights are at stake, and that the white house could not deny somebody access to that briefing or could not kick somebody out for arbitrary reasons or reasons less than compelling ones. and i have not yet read a transcript from jim acosta's proceedings. he filed suit. ordered for a temporary reinstating his press pass, and the court held a hearing. and it was decided in open court -- i do not think it was ever reduced to a written order or written statement of reasons, and the transcript has not yet been released.
a check again last night and it is still not out. but the court agreed that the white house press briefings, per this 1977 decision, are a place where important first amendment rights are at stake, and held that before the white house could revoke jim acosta's press pass, it would have to explain to him why he was doing so and give him an opportunity to respond. essentially due process rights , to protect the first amendment interests at stake. shortly after that ruling, the white house agreed to reinstate acosta's press pass, and cnn, in response, dropped the lawsuit. and instead, now the white house has a new set of rules. before there were not really clear rules on when somebody could be kicked out of this white house press briefing, and now the white house has implemented new rules. some people are complaining the rules are worse than the ambiguity that characterize the previous understanding of why you could or could not be kicked out.
but the key rule that i think was meant to target acosta was one that limited reporters to a single question unless they got permission by the white house to ask a follow-up question. nadine: and he promptly violated that the next day. if i can add something, it is really important to understand that the first amendment protects not only the right of the speaker to convey ideas and information, but also the right of the audience. and when we are talking about the media, the right of the general public to use the media as surrogates -- that is a concept that has been used in these cases. since we cannot all, as individuals, attend the president's press briefings, and yet as we the people, to quote the opening words of the constitution, have sovereign powers to responsibly exercise it, we need to get full, unfiltered, uncensored access to
the proceedings of the press briefings, including through hostile questions not only , questions that are cheering the president's comments. jamal: let me ask a follow-up about that, actually. because it is sort of an odd situation. we are not used to this quite so kind of -- what appears to be discrimination openly against particular media outlets, but when we talk about the president and we talk about the white house press room, there is discrimination that happens all the time. there are only certain outlets the white house gives exclusive interviews to. the president decides who gets to ask questions and in what order people get to ask questions. if you had a doctrine that says you may not discriminate on news organizations or on the basis of who you like and who you do not like, how is this a situation -- put aside the due process question.
they say "jim acosta, the reason , we did what we did is because we don't like you here is your , notice, here is your hearing, you have to contest that, you lose" -- at some point, you have to confront what kind of forum this is, right? floyd: yeah, you do, and a lot of this starts out in favor of a president. now, this one, not for the first time, managed to do it in the way most likely to let him lose a case, but it does not have to be that way. it seems to me clear that the president does not have to have press conferences. it seems to me clear -- [laughter] that he could do that. there are a lot of things that the president has, even under a
broad first amendment reading, a great deal of authority over. he does not have to have press conferences. he can link whoever he wants. he can call on whoever he wants, and he, they, can make rules, which limit the questions, as they appear to have, to limit one question per person. they can make rules saying no follow-ups. i do not think any court would set aside any of those rules. the reason that in the time after the promulgation and release of these rules that there are still follow-up questions of sarah sanders, for the most part, is that there is no objection to them. so this is not -- the first amendment does not, in a circumstance like this, provide
anything like a full open door. members of the public in general are not invited. it is members of the press who are. and the primary way that the public will get informed is that if the president sufficiently abused his or her power, journalists will stop coming. suppose, for example, the president only called on a few conservative journalists. there would be a press revolt. and i do not believe it would take long before the larger press entities would say and try to live by what they are saying. "we are not going to come anymore if all you are going to do is to call on a, b, and c." so this situation, i think, is
one which at least is likely to be worked out by political, cultural relationships, public opinion reasons, as it is by the force of law. alex: a good example of a blending of constitutional law and political norms. and i think many people have had a realization in the past two years that many of our, what we think of as cherished constitutional traditions, are in fact no more the norm and may not be safeguarded by constitutional doctrine. and the doctrine only takes you so far. i would say it is true the president could or the white house could limit those briefings in a way that would be all but useless to the press or even abandon them all together. but it does have rules. if, for example, everyone asks a
follow-up question, but only cnn gets kicked out for asking a follow-up question, that might be a violation of the first amendment's requirement of any public form rules be enforced. but short of those violations the president could do a lot to undermine actual equal opportunity once you're in the room, but would have a hard time making the room itself, you know, tilted toward one outlet or another. floyd: take for example, suppose president obama had chosen, as he did not, not to call on anyone from fox news, or suppose president trump made a decision, as he may well make, not to call on anyone from cnn. is there a legal remedy for that? i do not think the courts will be eager to say this is not
content-neutral. it is content-rooted. and i still think the courts would be unlikely to intervene. alex: i think you are right. nadine: i do. it is really important for all of the complexities of first amendment law -- and many thanks to daniel for trying to summarize it -- the supreme court has repeatedly stressed that the bedrock principle underlying that whole complex body of law is viewpoint neutrality. government above all else must not favor or disfavor particular viewpoints. and it may not cite pretextual reasons, such as national security concerns in the nation case. i am not an experienced litigator, but in terms of the first amendment principles, i think a court would be very suspicious about singling out a
press outlet that had repeatedly been attacked by a president expressly because of its viewpoint. jamal: i am going to take an academic point of privilege here and simply say we often group together viewpoint discrimination as something that is uniquely problematic under the first amendment and content discrimination. much of first amendment doctrine lumps those things together. we might wish to think -- and this may come up to get in the course of the conversation -- but we might wish to thank of ways in which content discrimination and viewpoint discrimination have to be thought of as differently. so different kinds of media outlets versus the viewpoint of media outlets are expressing his -- is plausibly something we should think about, whether or not we want to allow discrimination along those
lines. i actually want to stick with alex briefly and ask -- i promise this will not be all about trump. there are lots of other things to talk about. but given that alex is an attorney with the knight first amendment institute at columbia, a lawsuit was brought a lawsuit, earlier this year, last year, 2017, challenging the president's blocking of people from twitter. successful lawsuit. so far. ask, this ist to all sort of new to first amendment doctrine. but didt obama tweeted not block people as far as i know. accountident has this before he was president.
what, and this contact, makes him a state actor? >> a quick overview is that the law suit filed on behalf of seven individuals who president trump and blocked from his twitter account based on their views, they treated critical tweets, not obscene ones or profane ones, but pretty critical ones of the policy. shortly, they were blocked. we argued that is twitter account, the account forum associated with his account is designated public forum along the lines of -- such that he could not exclude people. in new yorkrt judge agreed with that. we are now defending that ruling . one of the key questions like them up in the case is this is president trump personal account prior to his assumption of office. why can you hold him accountable for it under the first amendment which typically applies to government actors. that hement we made is
is using an account in a way that is functionally government in nature. there are plenty of circumstances where the conduct of government officials's allies in a functional way to determine whether they are acting more as government officials in a particular capacity or more as personal individuals in the capacity. if you study his account, it seems clear that he is using it in a governmental -- governmental capacity. he uses it to announce decisions about administrative policy. he has fired people using his twitter account. he has announced changes in policy. for example, the ban on transgender individuals in the military was announced on twitter. staff he has white house assisting him in running his account. he is using u.s. taxpayer dollars to run his account. considers statements from his account to be official statement of the white house. he has told federal courts that subordinates have responded
to congressional inquiries about white house positioned by appointment's debt pointing to statements made on his accounts here it is account of more properly characterize now as governmental, not personal. in the same way that if you are a government official and use your personal email to conduct government business, if somebody filed a request of the government asking for your governmental email, officers would almost certainly ask for those emails and consider those to be responsive to a foia request even though they were sent on a private email server. such a fanciful example, can't imagine what you might be referring to. you,t to follow-up with since i know you have thought a and a lotsocial media about how it interacts with freedom of speech. there is a lot, a whole, we can have a whole different forum on
the issues that that raises. i wanted to ask about a specific issue. this relates to nadine has a recent book out on hate speech called hate. it is available in local bookstores. >> i have to mention the subtitle, why we should resist it. with free speech. not censorship. >> along those lines. treeecent shooting at the of life synagogue and pittsburgh , the alleged shooter spent a lot of time on gap. a social media site that has looser standards for content moderation than some of the more mainstream sites. >> i believe it is completely open-ended and does not engage in any moderation at all. >> that has become their brand. anything goes. segment of a certain speech population. speech community.
including lots of hate speech. after the shooting, cap had to go off-line for a while. a number of the support services or platforms, domain registry company, and so forth. refused to do business. essentially boycotted them and they had to find different hosting services. to -- i want to see if you want to reflect on the kind of power that that involves. given that these are not governmental actors. in this case, the found another host. one could imagine a company with more market power controlling the speech environment in a way that, problematic? or twoink we know one
examples i do have a great deal of market power. first, to repeat a point that i know some -- i see some student here who might not yet have studied the first amendment. it does literally bind only government officials with a few exceptions that are mostly not relevant here. the social media companies, as private sector and -- entities, no one only have no first amendment obligations to protect the free speech rights of anybody else, moreover, they have their own front -- first amendment rights just along with traditional media to make editorial decisions, content-based decisions, and even viewpoint eight ---based decisions about what the speech will be permitted and what will not be permitted. constitutional a argument. some people have tried to argue
that these companies should be seen as state actors. i would oppose that argument. at a practicalg , iact of their power completely agree with the supreme court when, last year, it unanimously dated -- stated that the most important forum for the exchange of information among us and our government officials and andidates is online media social media. for practical purposes, if we care about having robust freedom of speech, we have to be very how theseabout powerful private sector and these are wielding their power.
quote -- the head of one of these companies themselves, the head of a company called cloud slayer, which after a long history of proudly providing services to protect against what is called direct denial of service attacks where people are trying to interfere on and a correctional level with your communications online, it is in the background as part of the deep infrastructure that makes messaging possible on the hadrnet, cloud slayer proudly said we are not going to engage in content or viewpoint discrimination because we do think that we should be a conduit and let people make their own decisions about what they will see or say or not see or not say. after charlottesville, when the daily storm or white supremacist
folks were bragging that they still were able to use cloud slayer services, matthew prince, the executive, chief executive of cloud slayer, woke up, very angry, very disturbed and he wouldd that cloud slayer kick somebody off its services based on their reviled viewpoint. there went the daily storm or. credit,prince, to his wooed his decision. he himself understood the downside. he said i woke up one day and a bad mood and decided that these people could no longer have access to the internet for all practical purposes. no one should have that power.
suppose somebody else likes of the next day and they decide that black lives matter is too dangerous. certain government officials have said black lives matter should be investigated as a domestic terrorist organization. other people have accused black lives matter to be instigating assassinations of police officers in dallas. it is too much power for any private sector entity to have just as it is too much power for any government official to have. >> i don't agree with any of that. how can that be? i'll most always agree. i don't think there's any thing wrong with a powerful entity like these exercising what, in a different context, we would call editorial judgment. decides thattity
it does not want to have -- if the people, when they wake up, make a decision or if they decide, as most of the large ones have, we don't want racist speech, it is not a first amendment argument. that, i think it is a vindication of editorial freedom for these entities to make their own decisions about what to carry. they are large and powerful and to antitrustject laws and other laws because of their size. i don't think that their size come in and of itself ought to to abdicate the decision-making authority of what they carry. >> i think you and i are more in agreement with clear i'm just
saying there is a problem. the solution is definitely not aiding kind of government regulation through a first amendment and argument. i think antitrust might be a remedy. in my ideal world, there would be options. there will be robust competition. cap are trying to implement by saying if you don't want moderated content, we will give you an unmoderated option. i wish there were many, many robust options where each of us could choose a social media platform that we thought had appropriate standards. i should say, where the standards are transparent, where there is accountability for how they are defining your how they are enforcing your standards. where people are blocked or denied access at a fundamental
due process and a right of appeal >>. >> there is such a model out there. one of the difficulties is the network effect. you want to be where your friends are. is onen one that i know called mastodon which has 2 million users. media network. anyone can set up their own mastodon community to connect with other communities and each community can decide their own content moderation rules. you can have the full free speech version, no a speech. it is interesting. because theaken off network thing. i think it is worth distinguishing, there are two ways which the first amendment question would arise in some of these companies. one is if someone brings it to -- direct first amendment argument argues they should be considered good actors. that claim will run into a brick wall of first amendment presidents limited in its -- to the government. the other way in which a first
amendment case may arrive is if the government tries to regulate and argues it has sufficiently arong interest to regulate in particular way. the first amendment claim would be brought by the companies arguing that that law is unconstitutional. of claim,or that type where you are seeing government regulation is worth distinguishing between different types of services. some services may be more amenable to regulation than others. there may behich the strongest argument for government regulation is domain name service registrars. if you want to be on the winning that internet, you have to have an id address. online, theddress equipment to your real-world address. if you don't have one, you cannot post a website online. those ip addresses are given out by a private group of intergovernmental organizations. that decide whether you have an address or not. it is the equipment of the
postal service for the online world. basiclay the most infrastructural role you can imagine online. the decide whether a website can or cannot exist. there are not many instances i can think of in which domain name registrars have denied people ip addresses. addresses online because the content or viewpoint they have expressed or wish to express and their websites. if they started to, there might be pressure for governments to thet the extent to which most basic gatekeepers to the online world could exercise that authority. for example, requiring neutrality. in the same way the government the tubesaccess to themselves through telecom regulation and the like. it is worth distinction between the different services in place. cloud slayer operates on a different level. they provide a service, they
also do content distribution. there is a whole stack, a range of services offered by people. think ofp you might the people -- people exercising the most judgment would be individual users deciding what they want to post your just below that might be the platforms that decide to host the speech directly as part of their community like facebook or twitter. the expressive component of the survey differs depending on where you are in that stack. >> the further down you go the more analogous it it -- it is to a public utility. to -- did you want to land? avoiding the are underlying fundamental problem of hate speech. that is what we are talking about on these outlets. the new technology has changed the format and way it is done. ody talks about the
holocaust and says hiller did not do enough of a good job or slavery ought to be brought back. at what point does government or limity have a right to that kind of discussion? some other countries don't have the same first amendment we have. irrationalnk it is to have some limits on it. we just chose a certain path. it presents problems for us. one of the nice things about this president is he gives us a large amounts talk about on the first amendment area. we can make america great by making the first amendment great. there are these underlying issues that don't go away and we can talk about access. what do you do with the fundamental problem when people
are going to react? what charlottesville is about. things are being said and people responded. normal, expected reaction. doesn't government caps on -- some right and obligation to deal with something like that you're those are those of the hard questions. with the value is more important, which value do you want to protect, hate speech under the guise of freedom of speech or preventing civil disorder? i think that is something. i know you want to chime in on this. i want to bring in -- as well. >> what i think is interesting about that is there are clearly , basic areas of living that we have chosen as a society that we will regulate speech in. that is what our antidiscrimination protections are based on.
wee of those frequent areas, have decided the area of employment, and employment relationship we will regulate speech. in many instances, where there is a housing tenant, housing provider relationship, we will regulate speech. workingcustomer is visit the book accommodation or business, we have decided we will regulate hate speech. those are for what i think most people would think of as competing -- good competing public policy reasons could allowing people to live in these , free froms of life discrimination or some type of her investment. i think is interesting, i said this last year and say it this year, kind of enough resident, non-first amendment expert on the panel, it is always interesting for me to hear these conversations play out because i think there are ways in which our laws have not yet completely caught up with
the way people practically experience life in real-time. two new dean's point, remembering what is the -- what are the parameters of first amendment and thinking of this about government action. i would bet that if you walk down the street and ask most people walking around, they think of the first amendment as -- in that space, they would probably say no. inre are many ways in which the context these days, looking nationally at how acts of hate and violence and discrimination are increasing, they have been an increase since 2016. naturally known across the jurisdiction, there are situations that are not covered by the first amendment that people automatically think to themselves, that is a first amendment violation, why is the first amendment taking in. why isn't there a lawsuit here. if you look at twitter recently, released a policy where they adding, ashey were
part of the code of conduct, that banning the use of debt naming and mr. entering which basically means that for transgender people, they were basically banning when people were using the name that was associated with that person at birth or using the wrong pronouns when talking about a person. there have been some reaction as to whether or not this is a first amendment violation. just like watching some of the blog post on it. a first amendment violation, not realizing the extent to which that happened. i think that in the united there isew york city, a very strong i deal antidiscrimination and categories of protection and what that means. especially when we think about the diversity of the city or think about the diversities we have nationally. -- thatentimes, people
butts up against what people think above as first amendment rights. >> i want to follow up on this point and take it national. did you want to have a quick response? -- talkedask about about public accommodations and different settings in which we might think about speech adjacent ask -- acts. i want to take it back to the supreme court recent decision in .he masterpiece cake shop case some of you may be familiar with this. some of you may not. myself.explain it do you want to take this one? what were the speech related acts? >> that is a great case. the sort of case you would want for high school
students. a gay couple in colorado, at a time when colorado had legislation protecting against discrimination, against gays, go into a cake shop, the proprietor is the creator of wedding cakes, which he makes only after interviewing you, getting to know you, and then, after all of that, making the you that is just right for and his artistic vision of you and of the wedding. cakes that anyone could just walk in and buy. a gay couple comes in, says we
would like you to make a cake for us. the answer is no. i don't want to be associated with a gay wedding. which i think is contrary to god's command as set forth in the bible. and i won't do it. the shop open to the public, it is etc., etc.. the colorado authorities of that enforcing antidiscrimination laws said this violated the law. you can't choose your customer. you can't treat people differently based on this distinction which the law barred differential treatment. based on. the colorado supreme court denied their equivalent of -- u.s. supreme court took the case groupsof briefs from
defending on the one hand legislation,ation fearful that anyone can wind up saying it is contrary to my religious views. and on the other side, defending what they view as religious freedom or freedom of speech. that case what to the supreme court. it was argued the first amendment world trembled. as we awaited the decision and the decision which that was one which did not address any of the basic issues that we were all waiting to hear about. , justicethe court kennedy, the most first , wrotent oriented jurist an opinion saying this is a really interesting issue, but what we have found when we
examine the record is the -- that the colorado board had decided it was a violation, was essentially anti-religious. they mocked religion in their internal discussion about this. the religions is is always the excuse for misconduct and mistreating people. courtt basis, the supreme by a seven to two vote said, or concluded that the baker one the case. we don't care about the baker, we care about the law. what is the answer to the question? the court did not address. justice kennedy did say this. i will read you one sentence. observed, this court the first amendment ensures that religious organizations and persons are given proper
protection as they seek to teach the principles that is so fulfilling of central to their lives and faith. nevertheless, while those religious and philosophical objections are protected, it is a general rule that such rejections are not -- do not allow business owners and actors in the economy in our society to toy protective people access good and -- goods and services under a neutral and generally applicable public accommodations law. general setting has been that the next time such a case came to the court and which aone already petition was filed yesterday, in the state of oregon, that the side withd probably the state enforcing its antidiscrimination laws. be sure of that.
of course, justice kennedy is no longer there. just as kavanaugh has taken his place. that is another topic. it is fair to say it is uncertain, i do believe that the people who took almost literally that second sentence and read to you, as a signpost that when the court had to decide this issue that it would decide that the antidiscrimination laws could not be overcome by a simple assertion of religious faith. certainly, the anti-segregation laws could not have been overcome by someone saying in good faith and for religious regions i don't want to serve anybody who is black. we know that that is an argument
not work -- worth making. one of the questions raised in this case is how different is this case from that? >> let me come to kate that slightly by saying -- one of the interesting questions is what to bet mean discrimination on the base of secretary -- sexual orientation versus some other kind of discriminatory act. the baker's claim was not that because of my religious faith i may exclude a gay couples from buying anything in my shop, he the law of colorado, i may not discriminate on the basis of sexual orientation. that is not what i'm doing here. awould serve anything to same-sex couple, except, a
custom-made cake for their wedding because i do not participate in weddings of the sort. farther and one of the interesting issues in the case was he said this is a work of art. he would not compel a painter to make a painting of someone, you would not think of making a ,usician draft music, etc. etc. if someone is that holds himself out as a portrait painter and put a sign on the window of the store and says $500 to paint your portrait and a latino american walks in and the answer is i don't do latinos , that violates the law and does not protect it by the constitution. that is what i think. business choose to do with the public, which no one is
compelling you to do, and you become a so-called public accommodation, you must serve all comers. that is such an ancient common-law principle that preexisted the first amendment. this really illustrates the excellent point that colin was making that our law really is very sensible. justspeech goes beyond conveying an idea that we hate and consider hateful, but impacty having a direct in terms of denying somebody equal access to services, to housing, to employment, when it becomes targeted comparison of bullying, when it becomes a threat, a true threat, these are all examples in addition to the intentional incitement of imminent violence that daniel describes where our law very sensibly says when speech
directly causes certain imminent , specific, serious harm, then government can and may punish the speech. the mere fact that it is hated and hateful and might, indirectly, lead to some violence in the future, gives government far too much license to punish ideas that are unpopular. that is less civil rights protesters were suppressed. that is why human rights advocates are suppressed in european countries. we should not have any illusion that if we went in the direction that european countries have gone in, that those of us who champion human rights would be happy with the result. >> let me ask about a european country. somewhat parallel case. maybe a hair closer to the line
of being protected expression. the u.k. supreme court held that it was protected expression. this is a case in which a bigger refuses to bake a cake that has i support same-sex marriage has a message on the cake. won't not a matter of i bake cakes for certain people, it was i won't put that message on the cake because i don't believe in that message. of how thata sense would be treated under the human rights laws? for our law to kick in we are looking at whether a member of the public was treated less well so the new york statute speaks to someone being treated less well because of their membership in a protected class. a uniform ban on doing something for every single person who walked into that
store, probably come up antidiscrimination law would not apply. if it were selective versus certain members of the public versus another, based on protected category, ensure our law would kick in. what is also unfortunate about what happened in masterpiece is it became this issue of gay rights being pitted against religious freedom. there are certainly circumstances that one could foresee where someone's religious rights would but against somebody else's religious right in a situation very similar to the masterpiece. somebody said religiously i believe in a polytheistic religion and i want to celebrate it ask why easy way and to the cake shock owner, say i don't believe in that, is against my values, so i will not make it. how that caseing ended up and how it ended up
just diverted into the issue of the neutrality of the commission. ask about that situation were to occur here in new york city, and how the commission on human rights would treat that case. here, i think, in new york city, we have a rich tradition of not just championship winning the rights of lgbtq communities, but also championing the rights of folks based on their religion. religious accommodation issues. as well as folks who are generally considered to be religious minorities in the city. here, there is a situation where the commission has been out there, very loud about those two things. the neutrality issue would not likely be an issue. it would boil down to if the person who was coming in as a customer to the place of public commendation, was treated in a way that would be considered less well than somebody a protected category. our action is that it would violate the first amendment to
apply in this case. asked orke maker were told by the person who wanted to bake the cake, that want to to write something religious, i want you to write something blessing this wedding, i don't think you can make him do it. i think the courts would say the first amendment protects the cake maker in that case. >> that is a basic first amendment principle that we have not yet talked about witches just as the government does not have the power to suppress a message you want to convey, it has even the less power to force you to convey a message that you do not want to convey. that was the holding of the theme in the cases from world war ii era. >> i want to get back to the asrt and take it forward floyd tantalizingly mentioned the new justice kavanagh.
the court, in recent years, justice kennedy has been part of , is, has been fairly bullish would say, on free speech. term, the janis case, i would say, compelled speech case just as nadine was talking about, you can't compel nonmembers of the union to pay agency fees to support the union's negotiation. the compelled speech. the -- versus -- out of california which is also a consultant -- compelled peach -- compelled speech case in which california required certain disclosures of crisis pregnancy centers, and the court said that was a violation. i wanted to see if, floyd, if you had a view for developed a view on where justice kavanagh might be on a range of free speech issues and how his
replacement of justice kennedy might affect the court. kavanaugh has been a generally strong first amendment supporter in his jurisprudence. want towered this, i distinct 22 sorts of her spin cases and most of what's -- both of which he has been on the first coup amendment side. on the second category, he would have a lot more differences of opinions with liberal or progressive jurists than otherwise. in some cases, the national park service requires permits
saying that the -- there is great overstatement in the language of the rules and strikes them down allowing the religious group to hand out the tract. has not hadases, he many. the ones that he has had, he has been pro-defendant or, i would like to thank, pro-first amendment in his rulings. on his week -- on at least two occasions. it is involving new-media the decision-making, with respect to net neutrality. he has had a position which, on the d c circuit has been, if not extreme, about as far as you can go in saying that net neutrality
is unconstitutional on its face and in all circumstances. the d c circuit has upheld net neutrality, which is a dark -- adopted by statute or rule of the fcc. not as a constitutional norm, in a case, an important case as to which -- on the whole court, all the judges were asked to weigh in. he dissented in the case. ,rom the refusal of the court the higher court, all the judges, to rehear it. writing that the first amendment demands the government employee a more laissez-faire regime saying that it violates basic installs of a case called buckley versus alejo.
a case involving financing of elections. a line of the case which he characterized as one of the most important sentences and first amendment history was as follows , the concept that government may restrict the speech of some elements of our society in order to enhance the voice of others is wholly foreign to the first amendment >>. >> we shouldn't we should say that that was written by justice brennan. >> i think it was justice stewart. brennan joined. controversial and very important statement. it is a statement on which the citizens united case is based. on which the buckley case, which limited the power of the government bar expenditures by
individuals was based. this, there is more of a traditional liberal conservative split then in areas such as libel where the law is pretty clear and very protective of speech or of the first example i cited, you know, how far can the government go in limiting who can show up where with a leaflet or the like. where the law is very, very protective in this area and the area of what sort of regulations are allowed of the running of the internet and the like. , in allkavanagh likelihood, going to be consistent with the opinions that i just read to you. one more compelled speech case, sort of interesting.
the american media institute went to court protesting regulations on meat packaging which required the meat companies to put down what country the meat came from. if it came from a country abroad. the meat company objected to that saying you should not be able to force us to put that on our product. justice kavanagh said this was a deeply divided ruling of the court of appeals. he said that on the one hand, the government does not have a free pass to spread its preferred messages on the backs of others. he would vote to affirm the limitations based on the historically rooted
interests of supporting american manufacturers, farmers, and ranchers as they compete with foreign ones. therefore, sustaining the location,t that the if it is foreign, has to be set forth to further the interests of american meatpackers, which leads to my final assertion prediction. , acrossvanaugh has been the board, highly productive of first amendment rights. when it comes to other constitutional provisions, the american civil liberties union as aaid that he has, judge, a well-developed record of showing extreme deference to presidential claims for a national security. that is a fair characterization
of his decisions in more than one case. individuals,ims of prisoners at guantanamo, and the like. where he has generally come out against their articulation that they're being mistreated or the like. the first amendment question is will he apply that difference to the -- executive branch in the first amendment context. when an espionage act action is brought, if it is, let's say against the publisher. thathe government says there is irreparable harm as a result of publication of certain , will he say, consistent with his first amendment a-day leanrk that we should heavily on the side of allowing
speech or will he say this is an area where the executive branch has particular expertise to which we should defer as a court. when the pentagon papers case , ie up, i did not argue it was a young attorney working on the case, when that case came up, government said the new york times publishing the pentagon crippleill irreparably american national defense, imperil american prisoners of war being held in vietnam and the like. the courts looked at the documents and said we are just not persuaded. there is nothing close enough to real national security for us to agree that a prior restraint, an injunction against speech by a newspaper can be sustained. that was a six to three vote of
a court long gone. where justice kavanagh would be in a case like that is something we cannot know until it happens. to, i wanted to take up one more kind of broad area of conversation before turning to questions from the audience. justice floyd talked but something that was close to his own experience. i do -- i would be remiss if i didn't talk about university campuses and the various speech issues that have arisen in that context. again, as with thinking about social media, there are any number of issues that one can focus on. just recently, the most recent news cycle involved lamont hill being in some, apparently, some jeopardy from temple university
because of statements that he made regarding israel and palestine. on issueso focus more involving campus speakers and ,o-called provocative speech provocative speakers invited by certain groups and the publications that they -- that gives rise to from their opponents. and maybe, i will get at that by asking how we should think about the university in this context. should we think about -- i will put this in 80 who is also an academic, should we think about universities as kind of open public fora in the name -- nature of a speakers corner? or should we think about universities as some other kind
of institution where we might, even in the public university setting, might wish to allow certain kinds of order curated regulation? >> a university consists of different elements and the answer is different depending on which element of the university you are looking at. be, which ishould a functional home, should be treated differently from a classroom, which should be to treated differently from an open public space on campus. is similar to comments that were made by my distinguished cope analysts about the public forum doctrine. .he answer is very functional you look at the particular use in candidate dedicated use of that element on campus. of a campuselement that is the closest to a traditional public forum such as
streets and parks, most universities have open spaces, green spaces where they, traditionally, allow anybody to speak to express any idea. as a result of recent controversies, i believe a number of campuses have extremely open forum policies where, basically, they allow even internal spaces at the university for a fairly nominal rental fee to be used by anybody, even as a person does not have a connecting to the -- connection to the university. once you have that kind of policy, the viewpoint neutrality principle kicks in and you may not eliminate somebody on the basis of viewpoint. i would say, no university has
an obligation to adopt that kind of policy. certainly, private universities don't. some of them have abandoned inir prior open-door policy the wake of some controversial speakers. a university, i think, would be completely within its rights to say that there should be some link to the university, there has to be an invitation by a faculty member or by a student group. when you are talking about classroom, obviously, there is a professional responsibility on the part of those who decide, number one, what is included in the curriculum and what is not included in the curriculum. number two, what is included on syllabus and not included in syllabus. number three, walked just speakers -- what guest speakers will i invite or not invite. i suppose, in theory, a professor has a pretty
open-ended right to make a wide range of decisions. but, we all exercise our judgment and our power to make decisions that are consistent with the education of our students. i think that there should be some educational rationale for -- and justification for inviting speakers. if a professor said i think that this person should not speak in my class because i think my students are not going to learn something, i would -- the professor's own academic freedom to make that determination. i do have to make one important point which is i do think that educationalnificant value in hearing certain people whose ideas i consider to be revolting or objectionable.
if the person holds, for example, significant medical significants had influence on public policy, i , and it is important to educationally justifiable come as was consistent with free-speech principles to give the students an opportunity to hear that person and to interrogate that person and to debate that person. on the most extreme, less free speech example, i would say if you're talking about a dormitory, which is analogous to they --'s home, i think that the university would be justified in adopting rules that , in a viewpoint neutral way, maybe content-based rules that quietpreserve an area of and repose as the supreme court
has recognized the special claim of privacy and our homes and a -- allow more regulation of speech in that context for that end. >> haven't we seen a rise against -- a rise in intolerance to opposing viewpoints? a real problem on campus when a speaker is invited by a club or organization and students don't like that speaker or what the speaker is saying. in the classroom, the concept of trigger warnings that if a particular book or topic is offensive, that they should be told ahead of time and they can leave the classroom or do something else. ,here is an oversensitivity this is a new book that was recently published called the coddling of the american mind and it essentially talks about this that, somehow, people are
too sensitive, oversensitive and they don't have the thick skin that they ought to have when it comes to opposing viewpoints. is ank the college scene place where we see it. we saw it at middlebury college and several other schools where shutdownactually speakers that they did not like. is that what the first amendment is all about? is it the students write to eliminate someone else's speech rights the way it ought to go? or is something missing in terms of the social development? hearind of ability to people we don't like and opinions we don't like and to say that is fine. >> don't think anybody has
seriously argue that there is a right to disrupt a protest. there is certainly an important first amendment right to nondisruptive protest to momentarily, briefly, or in a silent way express your ideas.on to the speakers but not in a way that prevents a willing audience from hearing the overall message. >> one of the problems here is financial. which is that universities are put to the task of hiring so much security by speakers, generally, who have been invited by students. the university of california had spenttuation where they $600,000 to have enough security outrageous and racist speaker who had been
invited by a student group to appear. the monetary side of this is getting to be a major problem at universities. it is one of the reasons that some of them have been changing in terms ofal rules who gets to choose who comes and how they define educational value in making that decision. one thing is clear is that they can't have a system where you allow students to invite people who are good and bar them when the bad ones invite people whose speech is considered bad. just does not work. at least, in a public and diversity, it is unconstitutional. there is a general rule
against allowing hecklers to impose an effective veto on speech. which is why a lot of ofversities absorb the cost security for controversial speakers. there is no real case law grappling with the question of what do you do when the cost of factor thatkrupts has to provide the security and, i guess, the practical result is that the universities or others will change their policy to avoid having to take on the cost at all. it is a mistake to think of protest as a rejection of free-speech values. protest is, itself, one of the sortfree-speech expressive of conduct that has existed in this country as a long and stored condition. -- history. respect the right of protesters as much as you respect the right of the speaker.
the only contact where one threatens to silence the voice of the other is the competing values. very often, that is not the case. very often, there is protest outside of venues or associated with the venues on campus. i don't think of that as a rejection or free-speech value. i think that is a celebration of free-speech. performance of free speech. i think it is harder when you get inside the venue and some of you wants to shut down the speech entirely or the speaker entirely. then you have to do with the conflict. rightan set out the framework for that. it is effectively silencing the speaker, the university, they will allow speakers, they have an obligation to stop the disruption. i don't think you should -- i also agree that momentary disruption should not qualify as the sort that to get somebody -- ejected from the forum. some of the turn questions that you been writing
down on your index cards. there are four of them that are somewhat related to each other. i think i will just read all four of them and invite comments from our panelists. this is all about regulation of social media, which was something that attracted of love interest from the audience. one is is there any regulatory framework you can envision that will be sustainable that it could impose a fairness doctrine on internet providers. the fairness doctrine would the kind of both sides requirement and it's a related question. othersebook, twitter and utilities? are they publishers or are they something else? it depends on the context.
again, do you think antitrust briefly, do came up you think they should regulate huge private entities like amazon and face when they become vehicles of promoting hate sellingamazon has been nazi and white supremacist merchandise from its platform. , related set of questions quoting did towards the, enormous outlets hold potential to manufacture social pressure is not our jurisprudence so favorable to mediate -- media?
how we should think about this new kind of entity and what we can do about it -- what regulatory tools and conceptual tools might be available to address any threat they might pose to speech? aboutke to say something a couple of those challenging questions. tocqueville say that social pressure is a more powerful threat than government coercion but that was the point that was made by john stuart mills classic essay on liberty, a classic defense of beach. it was pointed out to me that his whole essay is focused not on government censorship but rather on social pressure, p a thesure and looking at
practical impact that it has. very seriousis a problem but in terms of solutions i would say what is the left -- lesser of two evils? and looking at how government has used the inherently subjective discretionary power to silence ideas because of disagreements with the viewpoint , there might potentially be some harm. government exercise of power more than more than i distrust the speech of my fellow members of the community. protests,ve that including the flourishing of alternative media is a less
dangerous course. i would oppose anything approaching a fairness doctrine which basically allows toernment to require media -- subject was addressed to give a counter viewpoint, you can remember the detail specifically but well-intentioned as that itht have been, in practice resulted in reducing the amount of discussion of controversial important public policy ideas, which were so important because of the burden that was put on the media company, and different presidents including richard nixon notoriously used the discretionary power that was vested in them by the fairness doctrine to selectica lily --
selectively to report favorably on them. have one now, it was an abandoned during the reagan administration. i think the supreme court will likely say it is unconstitutional. case, held it was constitutional. a -- put on said if publicion on an issue of importance it had to have the other side also. it didn't have to have the same number of seconds or the same number of speakers but it had to find a way to make sure that the other view was presented. one of the arguments made back then in the 60's and early 70's
about this doctrine is there were so many other ways people got information out, that we shouldn't treat broadcast entities all that different. the print press at the time was existent. the print press law have been made very clear that you can't newspaper print something. if they want to take a position the government does not have the power to get involved. then as was pointed out, more and more changes in the marketplace now we have the situation where the other issue we have about the internet is so chances that i think are very great that the supreme the doctrineay
itself cannot be revived constitutionally because there were so many other ways to get speech out. >> should be applied to the internet itself russian mark >> the internet itself certainly has a profusion of public views that are expressed right down to the most idiotic. it's a great first amendment triumph that it is so. one more question after this. actually curating a series of short essays dealing with this question. it may come out at the beginning of next year. my instinct is, i don't think i have settled on this, most as what people describe the problems of social media is
traced to the monopoly they have on of free-speech environment. if that is right, thinking not a remedy that are in the first amendment area, remedies that are in the area of antitrust or an time and operate law. is it one that wouldn't break up breakup in the antitrust forum but when you split it up according to its services. lets to services. one is a social mentor -- network. the other is a service it curates which is to their news feed in a way that most people may find valuable. you might think of splitting up those services, converting the social network itself in a utility that competitors can in thee but leave
, allowingside alone competition in that area by giving multiple people ask us to provide that kind of a service. it may itself have complications. >> i'm told we have time for one more question. i will ask a difficult one. also talking about the fairness doctrine, and how we understand the rights of publishers and media companies. what are the implications for first amendment rights of an espionage act indictment of julian assange? >> remember that the obama administration gave serious
.onsideration to an indictment they decided not to do it thinge the same sort of the thing that wikileaks does some sorts are not authorized to give them information and make it public with that definition, that is what the new york times does and the ultimate conclusion of the obama administration was not to go to court on that. there is another way to view wikileaks and another possibility in terms of the fact situation. the other way to view wikileaks, as the current secretary of state did when he was the head of the cia, is that it is an intelligence gathering organization and not a journalistic one.
i will not pause on that one because we don't have time. to make it more interesting, suppose the government makes the case that wikileaks did not just receive information, and now we know from the russians which they had hacked from the democratic national committee. suppose wikileaks in some form had spoken to the russians before or during the process of the hacking. would that make them sufficiently un-journalistic or sufficiently like an intelligence gathering entity? or sufficiently like a participant in potential acts of terrorism or certainly of intrusion into the american electoral process that they should not receive first amendment protection?
i think we all ought to read very carefully, i mean we have been told in our department of justice, it released the fact that there is a secret, yet unrevealed, indictment of wikileaks and julian assange presumably. to read very carefully that document to see just what wikileaks is accused of doing. it has already been included in the indictment of the russians who mr. mueller and his team have already indicted. where they made very clear that there were discussions post tacking by the russians of the dnc with wikileaks about the best way to make it all public and have the greatest impact on the election. that is already in the indictment. the question is, can -- did wikileaks do anything more than that or is the legal policy
issue going to say that that is enough to strip them of what american journalists would view as their first amendment rights? >> i absolutely agree. a prosecution or civil litigation against wikileaks poses a real threat to media freedom unless you can come up with clear ways of distinguishing what wikileaks does from what we think of as standard newsgathering tactics. we have not seen the full indictment against julian assange if it exists but we have seen twl lawsuits against wikileaks. i have looked at those and it is unclear the difference between what wikileaks did compared to what national security journalists do every day.
if there is more than that, we should study it. the real difference is that wikileaks would be the first entity which is pervasively anti-american which was accused in this area. so, i have always thought, and i am not alone, that the pentagon papers case was won in part because of the basic trust that the supreme court had that all americans were not going to do things to hurt the country if they could avoid it. journalists can make mistakes but they will not promiscuously harm the country and when you have wikileaks, that is a very different situation. >> of course, in citizens united, the court said you cannot terminate on the basis of who the speaker is.
>> i do have time for one more question. and this actually is one that relates to something that floyd mentioned in talking about campus speech and it is one of the vexing problems in first amendment law which is please discuss nascent, or not so nascent, protest restrictions, legislative proposals leading to the cost of law enforcement over on the shoulders of activists that apply for permits. what kind of verdicts can you impose on those that even in some ways are neutral regarding the cost of law enforcement? can you restrict free speech and that we indirectly by imposing those costs? >> that would be blatantly unconstitutional under a supreme court case called the forsyth county case involving white
again, the consistent the that has strung together a lot of cases we have discussed and a lot of principles is a very practical, functional approach. no matter what technique the government uses, the question is, is it abridging freedom of speech including stifling, suppressing, and chilling it? and of course, if you have to literally pay a lot of money especially for organizations that are financially strapped, as a cost of exercising your free speech rights, free speech literally not being free in the monetary sense, that is going to suppress the message. so the supreme court consistently has said number one, government may not impose differential costs based on the message. so, surely, a more controversial
message is more likely to generate protesters and therefore to impose higher security costs. it is not rational for the government to irrational contemplate additional cost but it may not foist them on the speaker or the supreme court has not gone into much more detail but it has also indicated that any cost imposed really cannot be more then symbolic. it has to be minimal. >> may i complicate that slightly? what about sanitation costs? let us say the way in which you speak is through the throwing of confetti and the government says, you can do that but it will cost a lot to clean up the confetti. is that a different case? >> there was a really old case, a really old case, involving the banning of distribution of
handbills. you could not purchase a printing press to reach the public and the rationale was precisely to prevent the cost of littering. the supreme court struck that down saying you simply have to find a way to deal with the littering problem that is not suppressing speech. there has to be an alternative measure to dealing with that. >> public forums cost money. free speech is not free in that context. >> the effect of all of this is that we will have less speech. that is the bottom line. the more we impose for those good constitutional reasons is the burden of paying for this on the universities and the like, the only way out at some level for
the universities will be for them to say we have to change our rules because we cannot afford having letters x, y, and see to come here and eat up all of our discretionary funding. >> there has been some suggestion that if discretionary rules and criminal laws disrupted or violent protests were being enforced which they are not uniformly being enforced, that would be an effective deterrent to the kind of disruption that leads to more security costs. >> empirical questions that we will not resolve here. with that, please join me in thanking our panelists. and thanking her great moderator.
>> apologies to those with questions that we did not get to. >> today is day six of the partial government shutdown, the president said he will only sign legislation to reopen the federal government if it includes money for a border wall which congressional democrats oppose. they come into session at 4 p.m. eastern as the debate continues you can watch live coverage of the house here in c-span and the senate on c-span2. when the new congress takes office in january it will have the youngest, most diverse freshman class in recent history. startinglive on c-span january 3.
yesterday russia said they tested a missile that cannot be shut down. defensejoined the ceo contractor raytheon and retired air force general for a discussion on whether the u.s. ofense system is capable intercepting traditional missiles. from simi valley, california. this is 45 minutes. first of all, i want to say thank you all for being here. it's been an incredible forum so far. i want to introduce our panelists. star wars, what did it teach us about tech and military competition. sitting next to me is senator jon kyl r. tom kennedy, chairman and ceo of raytheon and general hoch carlisle, four-star retired u.s. air force general and president and ceo of the national defense