Thistimely video was sponsored by Toyota Canada and focuses on the story of Carla Beauvais, a Black Montreal-based columnist and social entrepreneur. She became the target of racial abuse last June after being featured in a local publication for a mobile app for Black entrepreneurs she co-created following the murder of George Floyd. The experience profoundly traumatized her and caused her to re-examine her sense of belonging in society.
According to a poll conducted by the CRRF and Abacus Data, this January, 58 percent of racialized Canadians said they have either faced or experienced racism online. Sixty-one percent of Canadian women believe that racism and hate speech have increased in the last few years and 82 percent of women are concerned about the spread of racism online.
The Canadian Race Relations Foundation was created in 1996 to reaffirm justice and equality for all in Canada. The mandate of the Foundation is to facilitate throughout Canada the development, sharing, and application of knowledge and expertise to contribute to the elimination of racism and all forms of racial discrimination in Canadian society.
Marshall: The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez. Oyez. Oyez. All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.
Jad Abumrad: This is more perfect, I'm Jad Abumrad. Today, a little bit of a departure-- maybe it's more of an addendum. We just released an episode about Citizens United, which is one of the most argued about cases in recent history. This was a case really about the First Amendment and whether we should limit the First Amendment in any way.
Now, in that case, you had this tension, you had Justice Kennedy who is saying, "Don't touch it, don't touch it, don't touch it. I don't care if all this money comes into our political system, don't touch the First Amendment," but you had Justice Souter saying, "I don't know, maybe we should touch it because sometimes your freedom impinges on my equality. Shouldn't those two things be in balance?"
It's a fascinating and important conversation and it was one that we were having internally as a team while we were making that episode. At a certain point, we decided let's actually take that conversation and make a live event around it. This is something that we did a few times in the run up to season two. We would have these public debates in the WNYC Greene Space. I want to play you some excerpts from that debate that we had about free speech.
We did a classic debate format; one person took one side, one person took another. Our questions were; should the government do more in this day and age to limit free speech? Should Twitter do more? Should Facebook do more? Should all of us collectively be doing more to stop dangerous hateful speech? Is this precisely the moment when we have to stand up louder and prouder and protect that speech, even if we hate it?
Before we got into it, I took a poll of the audience. Everybody who thinks that your right to free speech, especially online-- people say some bad things fine, but your right to free speech should remain pretty much unlimited. Those of you who feel that way, make some noise.
Jad: All right. That gives us a good sense of where we're starting. Let me introduce our debaters for round one. The question is, should the government limit online free speech? Taking one side of that question is Mr. Elie Mystal, our legal editor at More Perfect and editor of Above The Law, a site for legal news. He is on one side of the stage and of the question on the other, Mr. Ken White, a First Amendment Litigator Criminal Defense Attorney at Brown, White & Osborn in Los Angeles.
Elie Mystal: No, I don't have a problem with the First Amendment. It was a beautiful thing written for white people who wanted to overthrow the government. It's fine. I have a problem with absolutists who want to elevate threats, harassment, and calls for genocide to the level of a sacred right. I do not think that the First Amendment prohibits us from preventing a Nazi from getting a permit to really any more than I would think that the Second Amendment prevents us from having a sociopath not get a gun permit.
Ken: Well, I don't know what absolutist Elie is talking about. The last one I know is Hugo Black and he died 1971. We have well-established narrow exceptions to the First Amendment. They are narrow for a reason, we got them narrowed on the backs of the powerless being suppressed by the powerful.
All of the types of restrictions that Elie would like are ones that have historically been used against communists, against labor protesters, against war protesters, against minorities, and everyone else. The Nazis aren't the ones in danger from the types of restrictions that Elie is suggesting he'd like.
Elie: Ken just admitted, just agreed that we already regulate speech at some level. Really, all we're debating about tonight, the only thing that's even up for debate is where we want to draw that line. Ken will draw that line so it protects Nazis. I would draw that line so it protects us from the Nazis. Let's start with a pretty simple example. Fire. Just kidding. There's no actual fire.
I'm sure you've all heard that the thing that you can say is that you can't shout fire on the crowded theater but actually, under our current laws, I probably can because our current standard is that what is unprotected are things that lead to direct incitement of imminent lawless action. That's a very high bar. I can probably say, "Fire." What I probably can't say is, "Fire, kill who you must to survive."
Elie: That would probably get me in trouble. The fire analogy comes from an older standard, older than the one that I just quoted. It comes from Oliver Wendell Holmes, who some of you might have heard of, and his standard when he used the "you can't falsely shout fire in a crowded theater" analogy, his standard was false and dangerous. Speech that is false and dangerous is not protected by the Constitution. I think that's where the line is. I think that's an eminently reasonable line.
Ken: I don't want the government deciding what's a lie and what's true. May I remind you, we are currently led by a president who thinks that global warming is a Chinese hoax to corner the tungsten market. That's why I don't want the government deciding what to suppress based on its decision about what is true or not.
Ken: Now, Elie refers to the fire in the crowded theater, Justice Holmes' famous quote, let's remember what he was talking about. He was using that quote, "You can't shout fire in a crowded theater," to justify jailing a man who was protesting World War II by handing out flyers suggesting that people resist the draft. That was the clear danger that the government saw.
Now, if you don't think that it's plausible that the government would be suppressing the same type of speech now, if you gave it the power, if you handed it to them out of fear of Nazis, then just look at what happened after the protests this last year. The alt-right and neo-Nazis rose, there were massive protests in response, and our largely Republican dominated state legislators leaped into action.
In 17 places, they proposed heavily punitive anti-protest bills, including for charming examples, making it easier for you to get off if you run over a protester in your car. That's what the government does with the power to suppress speech when you let the government decide what's true.
Elie: I think you just proved that our current First Amendment standard doesn't do bull to actually protect protesters. All it does is protect Nazis. You want to talk about the Oliver Wendell Holmes case. Let's talk about where our current standard comes from. It's relatively recent, 1969 Brandenburg v. Ohio. Now, what was that case? I said, 1969. You probably thought, "Oh, it's probably like civil rights and yes, and they were making it," no, it was for Klansman.
Brandenburg was a Klansman. He was all making Klan statements. Somebody arrested his ass for being a Klansman. He got convicted for inciting violence and the court said, "He's just a Klansman." We really need a new standard that protects the right of Klansmen to threaten Black people in 1969.
Ken: The right case is 12 years earlier, Yates versus United States, people convicted for becoming members of the Communist Party, under the theory that some ideas can be punished as clear and present danger even when there is no imminent advocacy of wrongdoing. Yates built the wall that eventually Brandenburg completed. Brandenburg's the outlier. Yates is the one that shows how the power is consistently used by the government.
Elie: It's a misnomer to suggest that the First Amendment is here to protect minorities. Are you kidding me? The constitution to even think about Black people until the Thirteenth Amendment, I think, as we all know.
Elie: I can give you an example. The president is a Kenyan. That's false, but that's not particularly dangerous, and so we can let that slide. Hillary Clinton is running a pedophile ring out of a pizza shop. Do not pass, go, do not collect $200. That is both false and demonstrably dangerous.
Jad: Can I call up an example, if you guys don't mind. The Daily Stormer, which is a very popular neo-Nazi site, there was a situation where they basically took a Jewish woman, a real estate agent-- that's the image right there, you can see it on the screens, and they superimpose it on image of Auschwitz. They published her name. They published her kids. They said hateful things like, "We will drive you to suicide." They call [unintelligible 00:11:32] , troll off on her. Does that qualify for you, Ken? Would you limit that kind of speech?
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