Speaking Freely with Adam Liptak

Speaking Freely with Adam Liptak

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– What is the condition of
free speech in America today? I’m Sanford Ungar, Director
of the Free Speech Project at Georgetown University. In this video series, Speaking Freely, we’re talking from time to
time with thought leaders and major players in the free speech drama unfolding in America. Today, Adam Liptak, a
Supreme Court correspondent for the New York Times,
joins us in the studio. (funky music) I’m talking today with Adam Liptak, the Supreme Court correspondent
for the New York Times. Adam, I’m very interested and I think people who view these videos on the Free Speech Project website would be interested in your evaluation of where the Supreme Court sits today in the historical
perspective on free speech. – This is the Court led by
Chief Justice John Roberts, is a very strong pro-free speech Court, although we might mean something different by free speech today than what say the Warren Court thought
about free speech. This Court protects the
classical free speech values of the political dissenter
and the lonely pamphleteer and the kinds of things that the older, more liberal Courts protected. But this Court’s also pro-free speech in areas that not everyone
is on board with on the left, including in campaign financing where using the First Amendment to justify the Citizen’s United Decision the Court was free speech in that sense. In commercial speech, the Court is free speech in that sense. In cases involving religion, the Court seems to be
sympathetic to the view that First Amendment free
speech rights are implicated when people object on religious grounds to doing various things. – And are there surprises
among the justices in this consensus? I have a sense that some
of the normal divisions are obscured. I think of the Snyder v. Phelps, the Westboro Baptist Church where it was, I believe eight to one and, there was quite a coalition of liberal, so called liberal
and conservative justices. – You do get lopsided cases. And it’s a little hard sometimes to say which is the liberal and
which is the conservative side of a given case. The one in the Westboro
Baptist Church case, the case about hateful
protests at military funerals was Justice Alito. Who does find some kinds of speech just to be beyond the pale. Justice Alito of course a conservative. But the other person I would think is fairly weak on free speech cases is a liberal justice, Justice Breyer, who also has his doubts
about whether the government shouldn’t be able to regulate
at least some kinds of speech. So to your point, that’s exactly right. These are not the predictable five four breakdowns, except in campaign finance. Where they are the five
republican appointees are the ones who are in favor of – Who believe that political contributions are free speech. And, to simplify. – Certainly political spending. Yes. – Right. Right. Is there some worry that if the composition of the Court should change dramatically
in the next few years, which of course it could because of the ages of
some of the justices, that this consensus behind
free speech could break down? – I don’t see it. We don’t know very much
about the newest justice, Justice Gorsuch’s views
about First Amendment issues on the Supreme Court. But his views on the 10th Circuit where he served as an appeals
court judge for some time were very much in the mold of what we see on the
contemporary Supreme Court. And I would imagine that the
next Donald Trump appointee at least on this issue will not be out of keeping
with what we’re seeing on the Supreme Court. So, they might be out of step with society. Certainly you know the younger generation, my daughter in college, has a different view of
free speech than people 20 years or 30 years older. But I think this Court
will be consistently a free speech Court,
with notable exceptions. You know, when national
security is on the other side free speech falls away. When the reputation of the
judiciary is on the other side free speech falls away. But in most cases, including cases which
really involve ugly conduct, these protests at military funerals, animal crush videos, violent video games, people lying about military medals, the speech side in all of those cases won. And almost entirely by
lopsided majorities. – Let’s come back to Gorsuch for a moment. Here he is on the Court. He’s participated in a couple decisions last term I think. What, what’s his record on free speech cases? Are there any particular
cases from the 10th Circuit that attract attention or that are worth looking at
when we try to predict his behavior. – You know, I read a bunch
of his cases at the time, and I’m not remembering
the particular facts, but I do recall that he
didn’t hesitate at all to employ the canonical libel decision, New York
Times against Sullivan, in a very robust way. At least twice.
– Which is the case that makes it very
difficult to prove libel. – Yes. It makes it hard for public officials and public figures, almost impossible really, to prevail in a libel suit. And he had no hesitation in
applying those precedents. – So we think that he would be, go along with the consensus? So we think he would go along with the consensus for the most part? – I do. And I, so a couple, I think he’ll be onboard for the project to deregulate
campaign finance laws on First Amendment grounds. I think he’ll be along for the project to make it harder to regulate
ordinary commercial conduct that has a speech element. And the Court will this term hear a big case about public unions which has a First
Amendment argument in there that people who choose not
to join public unions the argument goes, have a First Amendment right
not to pay agency fees, the equivalent of dues to pay
for collective bargaining. I’ll be very, very surprised if Justice Gorsuch doesn’t
provide the fifth vote to deal a body blow to
public unions on that ground. – In the past there have been some decisions or some
participation in decisions by justices that seemed anomalous. The one that stands out
in my mind right now is Justice, the late Justice Scalia, on the flag burning case. And, people remind conservatives sometimes, especially under the
new administration that when Donald Trump is saying, is giving one of his rhetorical, rhetorically excessive
speeches about such matters they remind him that
Justice Scalia voted for flag burning as free speech. – So Justice Scalia
loved to tell that story. And all credit to him. He said, he has no use
as a private citizen for the bearded sandal-wearing hippie who wants to burn a flag and that if he were the king he would throw all
those guys in the pokey. But he has to follow what
the Constitution commands. And he says the First Amendment says you can engage in flag burning. And, that’s a good lesson that judges, justices, don’t always follow
their policy preferences. Sometimes they feel their bound by the law to do things that they
wouldn’t want to do. I wouldn’t oversell it though. It’s hard to find too many examples of that kind of conduct in the First Amendment realm. And really, except for a couple of areas of criminal law, other realms where Justice Scalia wasn’t a reliable conservative vote. But those are legitimate. Now political scientists have done studies of how justices vote in free speech cases. And the political scientists find that they tend to protect
speech that they like, the content of the speech they like, and tend to regulate the
speech they don’t like. – What are some examples of that, that occur to you endorsing speech they like whereas, I mean because for example, the Westboro Baptist Church case does not fit in that conclusion. – [Guest] Yeah. – None of them said they
liked that speech or. I don’t know anybody who does
like that speech particularly. – No, I don’t think anyone’s
in favor of that speech. I think I’m, you’re gonna have to give
me a minute to think about, – That’s fine. Yeah.
– I’m drawing a blank. – I’m sorry. I didn’t. That’s a little bit of an unfair, unfair question.
– No, it’s perfectly fair. And, you know, let’s circle back, because things will occur to me. – By all means. Are you surprised by the
devotion of Chief Justice Roberts to free speech? He appears to have I think some people
didn’t expect him to be as committed to free
speech as he seems to be. – I guess that’s right. I mean, he’s been on the Court now,
– It’s been a while. – since 2005. And on the Court, he has not only been a consistent, almost consistent, there are exceptions, a strong proponent of free speech rights. But he’s also done something unusual where he takes great care
to spread out the good cases to the other justices but he tends to disproportionately keep the free speech cases for himself. So he’s written a lot of
the major free speech cases. And he seems authentically devoted to it. Although, you know, in, the two major exceptions
to pro free speech Holder against Humanitarian Law Project, where Roberts writes the
majority opinion saying that someone who ran afoul
to the material support law forbidding aid to terrorist organizations, by providing speech related benign help could nonetheless be prosecuted, that was Roberts. So that’s, that’s a case
where free speech doesn’t win. And also a case where Florida and many other states tried to do a little mild regulation where state court judges run for election, and there was an ethics rule that said you can’t personally ask for money if you’re running for a judicial office. And a lot of people thought
that was a free speech problem. Chief Justice Roberts
joining the four liberals five to four, says no, we’re gonna sustain that ethics regulation. So national security, judicial dignity, there are areas where
he’s not that strong. But in general you’re quite right, he is. – One of the cases that I’ve
followed over the years, or have remained interesting
in over the years, is the Pentagon papers case, which I covered as a young
reporter at the Washington Post many years ago. – I understand there’s a movie coming out. – Yes. About the Post of all things. That’s another matter. – I suggested to my friends at the Post that we should have a movie
about how the New York Times broke the Watergate scandal. – Right. Yes, a lot of tension. A lot of odd, awkward feeling about why this is being done about the Post. But, some people like to speculate, all these many years later about the Pentagon papers case from 1971, whether courts would
reliably continue to rule in favor of the media, of two major national, well, two major newspapers, the Washington Post was
not a national newspaper at the time, as it did six to three on the occasion of the Pentagon papers publication. Ruled against the Nixon administration. What do you think about that? You mentioned that national security is potentially one of the exceptions. – I think this kind of law is contextual. That was in an era where there was widespread distrust
of the Nixon administration and widespread respect for
the major news organizations who were sort of trusted partners in governing the nation. So if the Washington Post
and the New York Times decided something was
worthy of publication the editors of those papers were sort of the peers
of their counterparts at the State Department and the Justice Department and so on. And I think in that climate we got the benefit of the doubt. I don’t know that in the current climate those news organizations, to say nothing of BuzzFeed or the Huffington Post, would get the same kind of answer. So we have these high-minded neutral sounding legal doctrines. But judges apply them in the context of the times. – Sure. They’re pragmatic.
– Yes. – They follow the election returns. – And as you know Sandy, the Pentagon papers, controversial though they were, were historical.
– Yes. – Very hard to say they’re endangering current military operations. – Very difficult case to make then. And Erwin Griswold, then the Solicitor General, said a few years later, that although he argued on behalf of the Nixon administration that publication, continued publication would
damage national security he didn’t believe it himself. – Yes. And I was just reminded yesterday, I was on a panel, that Alexander Bickel was asked a question I think by Potter Stewart saying well what if we knew for a fact Mr. Bickel that tomorrow a 100 young men would die as a consequence.
– Yes. – Would you still take this position that the First Amendment protects you? And he said, you know, at that point my impulse is toward the First Amendment but I yield to my human impulses. Which goes to your point. It really depends on the factual context. And then interestingly the ACLU sent in a supplemental brief disavowing the Bickel comment. Taking the hard line
First Amendment view that, you know, we publish the truth and let
the chips fall where they may. – Right, right. Well, Bickel, in that case, a lot of people said that he didn’t argue as hard a First Amendment line as he could have at the time. Maybe it’s because of that one answer. – Well, and I, if I’m recalling right, he was a strategic choice. He was a well-known conservative. But he wasn’t a well-known
appellate lawyer. – Good point. So maybe it was not the best choice. – It worked out. And it got Floyd Abrams
his start in the business. – So that brings us to Floyd Abrams and, often regarded as the leading
First Amendment lawyer in the United States today.
– I believe he is, yes. – And, he is not always so predictable. And I think it’s, for a time he was, and then when he
represented Mitch McConnell, the Senate republican leader
in the Citizens United case, some people were very surprised by that. – Well, I agree that he’s
occasionally unpredictable. But I don’t think that’s
the right example. I think Floyd thinks that what the First Amendment protects at its core is speech about politics. It doesn’t want the government
meddling in censoring speech about politics. And as he viewed the Citizens United case, which after all was about whether the government could punish the distribution of a documentary about a political candidate, Hillary Clinton, he thought that fit very
nicely into classical First Amendment thinking that you don’t want the
government telling people, even corporations, not to spend money on
speech about politics. – I don’t mean to suggest that it wasn’t a principled decision on his part. It just disappointed a
lot of people at the time. – Floyd was for a long time an uncomplicated hero to liberals. And then when he started to, you know, take the same principle he
used in defending the press to defend Citizens United, to defend bond rating agencies and so on, then people had a more
complicated reaction to it. But, you can really ask the question
of who’s being inconsistent? And, in political terms maybe
Floyd’s being inconsistent. In First Amendment theory terms, maybe Floyd is being consistent. – Right. Well, he certainly
argues that in his recent book on this issue in which he appears to be defending very strongly his position on the Citizens United case. – I don’t think he has any second thoughts. – No I don’t think he does either. – Any doubts. And, you know, I think viewed through the lens of, let’s step back a second, there was a time not that long ago, when a lot of people on the left had problems with campaign finance law. The ACLU had problems
with campaign finance law. The FLCIO did. The Reporters Committee
for Freedom of the Press filed a brief on behalf of Citizens United the first time it was argued. So, – [Host] Easy to forget that. – You know, the old coalitions are breaking down as the right more and more strategically embraces First Amendment law as part of a deregulatory project to go after all kinds of campaign finance, commercial speech, religion, all kinds of, all kinds of laws. And successfully so. – And, it seems increasingly to be a mistake to try to divide First Amendment decisions, free speech issues, into liberal and conservative matters because they’re, they’re not, it’s not predictable. I mean the notion that today many young people as you suggested earlier in colleges and universities do not hue to what we think of as the classical defense of free speech is an interesting development. – Right. I think on campus, and among younger people, equality and dignity matter more than liberty. That there, and those are important
values on both sides, and, you know, people, people have to be thoughtful about it. But the classic First
Amendment theory says let people say what they like. The best response to it is more speech. And it’ll all get sorted out in the end. The new thinking among younger people is some of these statements are
deeply, profoundly hurtful. Marginalize people. Destroy their dignity. And they ought not be allowed, particularly in settings where you’re trying to
have a civil discourse in an educational institution about what we should be doing. And these two, these two ideas are
very hard to reconcile. – In the events at Charlottesville, in August of 2017, I think a lot of people were suddenly startled that their classic definitions of free speech might be challenged. When the, when some of the speakers were armed. When they were really quite intent upon violence as, or so they admitted afterwards. What does that do to free speech theory? – You know, once you inject the real imminent threat of violence free speech has nothing to say about it. You can, the police should take action if there’s actual imminent threat of violence. So an aspect of the
Charlottesville case is easy. But when the ACLU went to
court on behalf of the marchers they went to court on the understanding that there would be
profoundly ugly speech, peacefully presented. And that drives people crazy too. No, they didn’t. And they’re now taking
the position that a, they’re not going to defend anybody who wants to be armed
while they’re protesting. And b, they’re not gonna, their doors aren’t open
to everybody always because they have limited resources. But in general the ACLU, let’s go back to the Skoki case, when Neo-Nazis wanted to march
in an area of Illinois with a big Jewish population. And, no question that this would
be a profoundly hurtful thing. But not dangerous. And these people were marginal groups without sort of the wind of the Trump administration sort of in the mix. So again, the historical context
matters to how you think about and what the courts do
about First Amendment law. And I think Charlottesville is a profound test for all of this. – I think it is. I think it’s a watershed event. And I think that some people are startled to
find whom they are defending. And thinking about it. Even when you think back to Skoki, and now I can’t remember who
was president at the time of the Skoki march. It might have been Jimmy Carter. – I was thinking it was early 70s. Yeah, maybe Carter. – Well of course, if it’s Carter, it’s unimaginable, especially unimaginable to
think that he would have said there’s some fine people proposing to march in Skoki the way Trump said repeated about Charlottesville. – I guess the real question is, let’s take the violence out of it. Let’s just assume that
Neo-Nazis want to gather in a public park in a significant American city and say horrible things. It used to be that right
and left were united in thinking that’s ugly. That’s horrible. It’s distasteful speech but we’re gonna protect it. The First Amendment protects it. And I don’t think we have
that consensus anymore. – No. I think that there’s, that is bound to affect other people who are seeking to speak publicly. And spread. – And then you have questions like, that gives rise to a massive counter-protest. The possibility of violence requiring say the University
of California system to spend on a single event
hundreds of thousands of dollars to keep the peace. Is there a point at which, as a practical matter, you just can’t have that anymore? I mean the state of
California has a lot of money so I would hope that they, I would hope that they
would work very hard to let both sides say their peace and to police it as necessary. – It’s a little difficult though to argue that educational
institutions should be spending hundreds of thousands of dollars on protecting people who are
clashing with each other in the streets rather than. – It’s not, yeah, it’s not, given that they could be
spending it on scholarships for poor people.
– Exactly. On access to education. Or on the quality of education, et cetera. – But, at the same time the First Amendment does have this concept
of the hecklers veto. We’re not gonna let somebody’s speech be stifled
because the other guy is protesting too loud. So the whole, whole thing is a rapidly shifting and problematic landscape. – If this is not an unreasonable question, tell me if it is, if the hecklers veto came
before the Supreme Court today what do you think would happen? – I think this Court rules it’s generational. I think they would rule
as a Court 20 years ago or 40 years ago would have. And also,
– Which is to say? – Which is to say they would, absent really extraordinary circumstances, not say you can suppress speech because it’s gonna give
rise to counter-speech. – Right. But what would they say
about the counter-speech? Would they say that it’s
alright to disrupt the speaker because the disrupters have
free speech rights as well? – Really depends on the circumstances. But, and it really depends on
what you mean by disruption. There’s too many factors in play to say what the Supreme Court would do. But, they would try to achieve what we used to think was achievable. And maybe we don’t think so anymore, which is let both sides talk. Let, have speech. Have counter-speech. Let people make up their minds
based on full information. We have this notion but this is, you know, you could really ask questions
about this in the era of fake news and democratization of
information on the internet. The First Amendment, a significant part of
First Amendment theory is that over time the truth will come out and people will make the right decision. But that was a little easier when there were trusted
gatekeepers of information. Now that information has gone wild it’s harder to know
whether the average person is really gonna make the right decision. – Well, and it’s a fundamental
cornerstone of democracy that there be debate and dialog and issues get talked through. The, what is different now is that so many of those conversations
are no longer civil. We thought we could count
on civility as a factor. – Its partly that. And there’s partly and increasingly no agreed upon set of facts. People come to the table with their own understanding of the facts and you’re never gonna
have a constructive dialog if you don’t agree on the very premise of what you’re talking about. – So is the Supreme Court in your, I mean we all revere the Supreme Court, or some of us have grown up kind of revering
the Supreme Court in its wisdom et cetera. Is the Supreme Court up
to the current challenge of trying to adjudicate this mess
that we have on our hands surrounding free speech? – The Supreme Court can be criticized on many grounds. But it is still easily the best functioning
part of our government. It’s, very abled grown-ups work there. They’re very committed to, they’re not shy. They take the big cases. They decide the big cases. They do it in a serious way. And, given what we see in the other branches of the government. – Especially now. – Particularly these days. And the Supreme Court is also quite alert to the limits of its power. It’s not gonna go further than what society will accept. But it does, particularly now that
they’re back to nine, it does think it has an
important role to play. And I gotta say, in light of some perceived disfunction
in the other branches I think we ought to be glad to have them. – Absolutely glad to have them. Hopeful that they will be to some extent permitted to do their work
without constant attack and criticism. – Right. We haven’t, we’ve seen a lot of criticism, and quite unusual from the President going after particular judges, particular courts, and cases involving his private actions, his public actions. Calling the criminal justice system a joke and a laughing stock, which is really shocking to me, because the American federal
criminal justice system is pretty good. But he hasn’t gone after the Court yet. Of course they managed not
to rule on the travel ban so. – Right. And do you think they will take on, be willing to take on some
of these fundamental Trump issues that could put them
under fire by the President? – Short answer is yes. But I think they might also do what they did in the first go-around of the travel ban is issue, kind of, moderate compromise, thoughtful interim decision and cool down the temperature. They’re not only about making big bold statements. Sometimes they’re about making an incremental decision, which takes the temperature down a notch. – Is, the President has gotten
quite a bit of criticism for some of the judges he’s
named to lower federal courts. And that, I would think would be an ongoing issue where do you see that? – So I, in the first place I’d say, that the Trump administration has not gotten very much
accomplished in Congress but judges are an exception. Gorsuch for republicans and for the Trump base is a home run. The many judges he’s
nominating and getting in, – I was not actually referring to Gorsuch. I was talking about some
of the conspiracy theorists and, other people who have been considered for. – He’s nominated by now scores of judges. Many of them are of the highest quality. Quite conservative, but really distinguished. Former law professors and state supreme court justices. Less than a handful of them look a little more idiosyncratic and gotten very poor response
from the ABA and so on. So there’s, there’s some stuff going on. But I don’t want to say
it’s representative. I think in general he’s appointing quite good people that a Jeb Bush or a Mitt Romney would cheerfully have appointed also. – Of course it’s the others
who get the attention. And perhaps the media are
to be blamed for that. I don’t know. But. – You know, some of them, and I haven’t studied this closely, but some of them at least superficially you can ask, real questions about what
they’re doing in the mix. – And how does that happen? – It’s a good question. How it usually happens is the White House Counsel’s Office in consultation with
the Federalist Society gets the really good people. And then the local
senator’s brother-in-law gets in on the crony ticket. That’s what typically happens. Someone’s college roommate. – That’s not a, an orderly way to select
people who are going to be making justice in this country. – Well, you know there are trade offs because the Senate has to vote
for the guys you really want. And sometimes they ask
for a favor in return. – So, in the compromise process we may get some less than stellar judges. – Right. And the other problem is that we’re so polarized now that the good judges who usually, you know if you’re a democrat, you should probably go, not my guy, not my type but the
President gets to pick. And they’re qualified and. – And that was essentially
what happened with Gorsuch I think. – Yeah. In one sense it happened. On the other hand, the
vote was very close. I forget what it was. 52 48 or something. – Well it was a partisan vote. – But it, that partisanship is not uniform. I mean, Scalia everyone knew he was conservative got a 98 to zero vote. Ginsburg and Breyer if they had 20 votes
against ’em collectively that’s not right. So it used to be that you put up somebody whose credentials were strong. Whose temperament was fine. Who was a good judge but had political leanings
one way or the other. And the Senate would go along with it. Now we’re so polarized that we’re not able you’re drawing important
distinctions between idiosyncratic judges and highly qualified ones, and they’re all getting the same vote. So you’re not having
the filtering process. – So we, and, the public may not be aware of exactly what’s happening with. – No. It’s hard to, I don’t blame people very much. They’re busy. – Yes, it’s hard to follow. – They got a lot on their minds. There’s so much news these days. But you’re quite right, people aren’t following the
blow-by-blow on this stuff. – But, bottom line, you’re confident that the Supreme Court is going to handle free speech issues wisely and well in the years ahead? – Well that’s a big statement. But I’ll sign on about 80%. I think in the free speech area if you care about old
fashioned free speech values this is a good Court. On lots and lots of other stuff, this is a Court where five republican appointees dominate the Court and vote in a generally
conservative direction. So if you’re conservative, you should be happy with this Court. If you’re a liberal, you should be a little
less happy with this Court. But as you were suggesting earlier Sandy that kind of breaks down
on free speech issues and if you believe in old
fashioned free speech values which is, not everyone does, and a lot of liberals less and less. Then. But if you believe in them this is not a bad Court. – Of course liberals are not, it’s not gonna be comfortable position for liberals to have to defend a relativistic position on free speech even though there are other values as you say that young people
are especially concerned about. It’s gonna be hard for liberals to defend that they only support some free speech. And not other parts of it. – You might think it would be hard. But people manage. – Thank you Adam. – Great to be here. – We’ve been discussing
the Supreme Court’s jurisprudence on First Amendment issues with Adam Liptak from the New York Times. To learn more about Georgetown University’s
Free Speech Project, please visit our website. Thanks for watching. I’m Sanford Ungar. (funky music)

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