WEBVTT - Free Speech in Campus Protests 0:00:03.200 --> 0:00:17.240 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:19.520 --> 0:00:23.759 Demonstrations against the Israel Hamas war have wreaked havoc on 0:00:23.920 --> 0:00:28.800 college campuses across the country, escalating in recent weeks as 0:00:28.880 --> 0:00:34.840 pro Palestinian demonstrators refused to remove encampments and administrators turned 0:00:34.840 --> 0:00:38.559 to police to clear them by force, often resulting in 0:00:38.640 --> 0:00:39.680 violent clashes. 0:00:40.640 --> 0:00:43.559 I'm Gontain Daywen Gibson, the police captain for the University 0:00:43.560 --> 0:00:46.479 of Colboy of Los Angels and your right deplayers to 0:00:46.520 --> 0:00:50.360 be about mamos bring up. Maybe you do not do so, 0:00:50.840 --> 0:00:53.600 you may be arrested or subject to other constructions. 0:00:54.360 --> 0:00:58.040 At UCLA's campus in Los Angeles, police warned the more 0:00:58.080 --> 0:01:02.360 than one thousand protesters for over a loud speakers that 0:01:02.440 --> 0:01:06.160 there would be arrests if they didn't disperse. Chaotic scenes 0:01:06.200 --> 0:01:09.880 played out in the pre dawn hours today when officers 0:01:09.920 --> 0:01:15.000 in riot gear confronted demonstrators who wore helmets and gas masks. 0:01:15.160 --> 0:01:17.920 At least two hundred people were arrested and from the 0:01:17.959 --> 0:01:22.240 White House, President Joe Biden, in warning against violence, said 0:01:22.280 --> 0:01:26.520 the protests put to the task two fundamental American principles. 0:01:26.959 --> 0:01:30.480 The first is the right to free speech and for 0:01:30.560 --> 0:01:33.320 people to peacefully assemble and make their voices heard. 0:01:34.000 --> 0:01:38.640 The second is the rule of law. Both must be upheld. 0:01:39.720 --> 0:01:43.640 The protests spotlight the difficulty of balancing the right to 0:01:43.720 --> 0:01:46.800 free speech with the need to provide a space where 0:01:46.880 --> 0:01:51.040 students feel safe joining me is constitutional scholar Michael Dorf, 0:01:51.120 --> 0:01:54.480 a professor at Cornell Law School. Let's start with the basics. Mike, 0:01:54.640 --> 0:01:59.000 explain the difference between First Amendment rights at public versus 0:01:59.080 --> 0:02:01.200 private college universities. 0:02:01.680 --> 0:02:06.640 Sure, the Constitution applies to the government with respect to 0:02:07.120 --> 0:02:12.520 state universities. That's pretty clear. Because state universities are arms 0:02:12.639 --> 0:02:17.360 of the state. Private universities are not bound by the 0:02:17.480 --> 0:02:21.400 Constitution and therefore not bound by the First Amendment. However, 0:02:21.760 --> 0:02:24.600 there are at least two ways in which we need 0:02:24.639 --> 0:02:29.120 to qualify that. First, most colleges and universities in the 0:02:29.200 --> 0:02:35.239 United States, as a matter of their own internal organizing principles, 0:02:35.360 --> 0:02:39.440 some of which is protected by contract with students, faculty members, 0:02:39.440 --> 0:02:44.440 et cetera, adhere to First Amendment or First Amendment like principles. 0:02:44.680 --> 0:02:46.919 That is to say, freedom of speech is not only 0:02:47.040 --> 0:02:50.680 part of our constitutional system, but it's an important value 0:02:51.280 --> 0:02:55.520 for higher education you see it in practices like academic 0:02:55.639 --> 0:02:59.239 freedom and so forth. So in that sense, whether it's 0:02:59.280 --> 0:03:04.079 imposed the government or voluntarily undertaken, and principles of free 0:03:04.080 --> 0:03:08.200 speech are pretty much universal on college and university's campusits. 0:03:08.280 --> 0:03:10.080 The second way in which I would qualify it is 0:03:10.080 --> 0:03:13.600 that in some places that's actually imposed by law. So, 0:03:13.800 --> 0:03:17.200 for example, in California, there is a state law called 0:03:17.200 --> 0:03:22.800 the Leonard Law that says that even private universities must 0:03:22.840 --> 0:03:27.480 abide by the strictures of the First Amendment, at least 0:03:27.520 --> 0:03:31.440 with respect to matters of student discipline. And so you know, 0:03:31.560 --> 0:03:36.680 the unrest you saw at UCLA and USC isn't really 0:03:36.800 --> 0:03:39.120 very different in terms of how we think about that 0:03:39.160 --> 0:03:42.160 in terms of free speech in virtue of that state law, 0:03:42.280 --> 0:03:46.000 even though UCLA is a state university and USC is private. 0:03:46.920 --> 0:03:49.680 Let's talk about what the First Amendment protects and what 0:03:49.760 --> 0:03:53.640 it doesn't protect. It doesn't protect unlawful conduct. 0:03:54.120 --> 0:03:56.520 That's a little circular, right, that is to say, of course, 0:03:56.560 --> 0:03:59.600 it doesn't protect unlawful conduct. But part of the point 0:03:59.640 --> 0:04:02.840 of the First Amment is it tells us what conduct 0:04:02.960 --> 0:04:06.160 can be made unlawful. The way I would put it 0:04:06.240 --> 0:04:13.160 is that the First Amendment protects speech and other expressive activity, 0:04:14.040 --> 0:04:20.000 primarily against government interference or where it's voluntarily undertaken, private 0:04:20.080 --> 0:04:26.520 university interference that is based on the content of the speech. Right. 0:04:26.560 --> 0:04:30.640 So the critical distinction is between what are sometimes called time, 0:04:30.680 --> 0:04:34.680 place and manner restrictions. Right, you can have your rally 0:04:34.760 --> 0:04:37.039 in this place but not that place, at this time, 0:04:37.080 --> 0:04:41.480 but not that time without amplification except under certain circumstances. 0:04:41.520 --> 0:04:44.680 Those are about how you are making your point, and 0:04:44.880 --> 0:04:49.680 generally the government has considerable leeway to restrict that so 0:04:49.800 --> 0:04:54.080 long as it does so reasonably, versus content based restrictions. 0:04:54.120 --> 0:04:57.400 You can't have a rally for this side, but you 0:04:57.440 --> 0:05:00.320 can have it for the other side. Right, And that's 0:05:00.400 --> 0:05:04.640 the sort of basic principle that's operating here. The government 0:05:04.880 --> 0:05:09.960 can restrict speech, but not based on its content, and 0:05:10.000 --> 0:05:12.120 when it does so, it has to do so reasonably, 0:05:12.520 --> 0:05:17.200 meaning leave open adequate alternative channels of communication and so forth. 0:05:17.440 --> 0:05:21.120 Let me give you an example, an anti Semitic chant. 0:05:21.760 --> 0:05:24.000 Would that be protected under the First Amendment? 0:05:24.680 --> 0:05:26.599 Strange as it may sound, the answer to that question 0:05:26.680 --> 0:05:31.320 is yes. In most constitutional democracies the answer would be no. 0:05:32.040 --> 0:05:34.880 But in the United States, what is sometime is called 0:05:34.920 --> 0:05:39.640 hate speech, is not unprotected in virtue of the fact 0:05:40.040 --> 0:05:43.040 that it is hate speech. The leading case is a 0:05:43.080 --> 0:05:45.839 case from the US Supreme Court in nineteen ninety two 0:05:46.000 --> 0:05:50.160 called rav against City of Saint Paul, which said that 0:05:50.560 --> 0:05:54.040 the First Amendment does not include an exception for hate speech. Now, 0:05:54.160 --> 0:05:58.359 I should qualify that by saying that an anti Semitic chant, 0:05:58.920 --> 0:06:05.280 under certain circums stances could be proscribable harassment. So if 0:06:05.320 --> 0:06:08.599 you think about racial or sexual harassment at the workplace, 0:06:08.960 --> 0:06:12.320 which is forbidden by Title seven that's the nineteen sixty 0:06:12.360 --> 0:06:16.640 four Civil Rights Act, or at a federally funded college 0:06:16.720 --> 0:06:19.400 or university, which means just about every college and university 0:06:19.400 --> 0:06:24.360 in the country. Racial harassment is prescribed if a college 0:06:24.480 --> 0:06:27.000 university takes federal funds. It's just what all of them do. 0:06:27.720 --> 0:06:31.720 They're not permitted to tolerate racial harassment. And Department of 0:06:31.839 --> 0:06:37.800 Education guidelines define anti semitism, Islamophobia, and various other forms 0:06:37.839 --> 0:06:40.479 of hatred that you might think correlate with religion but 0:06:40.600 --> 0:06:43.640 have some sort of ethnic and therefore racial component. It 0:06:43.720 --> 0:06:48.680 defines those as covered by Title six. So if the 0:06:49.360 --> 0:06:53.280 chant rises to the level of harassment, then it is 0:06:53.680 --> 0:06:57.360 forbidden by Title six, and the university is not only permitted, 0:06:57.600 --> 0:07:01.720 but obligated to stop it. And now the question that 0:07:02.120 --> 0:07:06.919 naturally raises is does the First Amendment contain an exception 0:07:07.760 --> 0:07:12.400 for harassment? The Supreme Court has never decided that question. 0:07:13.080 --> 0:07:16.040 Lower courts have assumed that the answer to that is yes, 0:07:16.440 --> 0:07:18.720 and I think that is the correct answer. That is 0:07:18.720 --> 0:07:22.240 to say that what is defined as harassment, which is 0:07:22.280 --> 0:07:26.640 sort of creating a hostile environment based on raise or 0:07:26.760 --> 0:07:30.160 sex and so forth, is proscribable. That is to say, 0:07:30.200 --> 0:07:32.760 the First Moment doesn't protect that. And you have to ask, well, 0:07:32.760 --> 0:07:35.880 what's the reason for that. Why is it that if 0:07:36.080 --> 0:07:39.000 there is no exception to the First Moment for hate speech, 0:07:39.000 --> 0:07:42.400 why is it that the government can forbid harassment that 0:07:42.480 --> 0:07:45.960 takes the form of hate speech. The answer to that, 0:07:46.040 --> 0:07:51.840 I think is that the government can't forbid harassment generally 0:07:52.320 --> 0:07:57.960 where harassment consists simply of saying offensive things, But it 0:07:58.040 --> 0:08:02.600 can do so when it's targeted in circumstances where someone 0:08:02.640 --> 0:08:06.240 can't just sort of look the other way. So if 0:08:06.360 --> 0:08:10.360 a neo Nazi group or white supremacists want to have 0:08:10.440 --> 0:08:16.000 a march through Charlottesville, for example, they're protected by the 0:08:16.000 --> 0:08:19.320 First moment in doing so. But if they want to 0:08:19.360 --> 0:08:25.000 do that at the workplace of particular individuals, then those 0:08:25.200 --> 0:08:28.080 people are a kind of captive audience at work. And 0:08:28.600 --> 0:08:33.320 the crucial question, then, I think, for current purposes, is 0:08:33.360 --> 0:08:37.240 to what extent is a college or university campus more 0:08:37.360 --> 0:08:40.400 like a workplace where there's a kind of captive audience 0:08:40.520 --> 0:08:46.400 rationale for restricting what would otherwise be offensive but first 0:08:46.760 --> 0:08:52.120 protected speech versus more like just the public streets and 0:08:52.240 --> 0:08:54.200 public parks and so forth. I think that's a question 0:08:54.200 --> 0:08:56.760 to which we don't have an answer, but it's sort 0:08:56.800 --> 0:09:00.839 of at the heart of the clash between the First 0:09:00.840 --> 0:09:03.400 Amendment and antidiscrimination principles. 0:09:04.040 --> 0:09:06.720 There have been protests on college campuses all the way 0:09:06.720 --> 0:09:10.200 back to the nineteen twenties, I think, perhaps reaching a 0:09:10.280 --> 0:09:13.920 height in the protests against the Vietnam War in the sixties. 0:09:14.240 --> 0:09:18.160 But are the current protests different because many Jewish students 0:09:18.160 --> 0:09:23.160 feel threatened by the anti Semitism that's sweeping across college 0:09:23.200 --> 0:09:25.880 campuses and these protests, so. 0:09:26.679 --> 0:09:29.959 Yes, to the extent, and there is a real extent 0:09:30.200 --> 0:09:35.000 that the demonstrations and the encampments include anti Semitic speech 0:09:35.640 --> 0:09:41.439 that does distinguish nineteen sixties Vietnam War era campus activism, 0:09:42.040 --> 0:09:46.400 where there were certainly students who didn't oppose the Vietnam 0:09:46.440 --> 0:09:52.480 War and may have therefore disagreed with other students' protests, 0:09:52.720 --> 0:09:55.720 but they didn't feel like they were the target of 0:09:55.760 --> 0:09:59.360 those protests. So that is a distinction. But let me 0:09:59.400 --> 0:10:03.280 then also say that, you know, the fact that people 0:10:04.000 --> 0:10:09.200 feel threatened by something is of course always unfortunate, but 0:10:10.000 --> 0:10:14.000 that usually isn't enough to shut down other people's speech 0:10:14.520 --> 0:10:17.760 if it isn't actually threatening. And so I think it 0:10:17.800 --> 0:10:22.120 would be important to distinguish people who are saying or 0:10:22.240 --> 0:10:27.280 doing actually threatening things or things that create a hostile 0:10:27.400 --> 0:10:31.360 environment because they're anti Semitic, from people who are there 0:10:31.400 --> 0:10:35.600 simply opposing the Gaza war and urging divestment or whatever 0:10:35.600 --> 0:10:39.439 it is that they're demanding of the colleges and universities. So, yes, 0:10:39.559 --> 0:10:42.199 that is a distinction, but I don't think it distinguishes 0:10:42.320 --> 0:10:45.560 all of what's going on now from earlier periods of 0:10:45.600 --> 0:10:47.640 campus activism. Coming up next on. 0:10:47.600 --> 0:10:50.840 The Bloomberg Law Show, I'll continue this conversation with Professor 0:10:50.880 --> 0:10:55.000 Michael Dwarf of Cornell Law School. Have the courts provided 0:10:55.040 --> 0:10:58.959 a clearly defined line to mark when's speech and protests 0:10:59.200 --> 0:11:03.000 are no longer peaceful and lose First Amendment protection. And 0:11:03.080 --> 0:11:05.560 later in the show, we'll talk about day six in 0:11:05.600 --> 0:11:08.559 the hush money trial of Donald Trump. I'm June Gross. 0:11:08.559 --> 0:11:13.480 When you're listening to Bloomberg. Demonstrations against the Israel Hamas 0:11:13.520 --> 0:11:17.280 war have reached havoc on college campuses across the country, 0:11:17.800 --> 0:11:21.600 escalating in recent weeks, and police have arrested more than 0:11:21.640 --> 0:11:25.480 two thousand people, according to the Associated Press. I've been 0:11:25.480 --> 0:11:28.920 talking to Professor Michael Dorf of Cornell Law School, what 0:11:29.080 --> 0:11:32.480 about these encampments that have sprung up, I think starting 0:11:32.480 --> 0:11:35.800 at Columbia, but I've sprung up across the country. Some 0:11:36.480 --> 0:11:42.080 campus protesters consider their encampments to be a form of speech. 0:11:42.160 --> 0:11:46.120 So that actually is just not true. I mean, of 0:11:46.200 --> 0:11:50.360 course they mean to express a message through the encampments, 0:11:50.960 --> 0:11:55.400 and it's a demonstration of their seriousness of purpose, So 0:11:55.440 --> 0:11:58.840 I don't want to deny that. Of course they're doing 0:11:58.880 --> 0:12:03.640 it to make up. But that doesn't mean that colleges 0:12:03.679 --> 0:12:10.120 and universities lack content neutral grounds for objecting to the encampments. Right. 0:12:10.280 --> 0:12:14.040 I mentioned earlier that it is permissible for the government 0:12:14.240 --> 0:12:16.800 or in the context of a private university committed to 0:12:16.840 --> 0:12:23.040 freedom of speech, the university administration to enforce content neutral, time, place, 0:12:23.080 --> 0:12:27.160 and manner restrictions. And one form of manner restriction is 0:12:27.800 --> 0:12:31.280 if you want to use the public space to have 0:12:31.400 --> 0:12:35.280 a rally or to habits and speeches, you apply for 0:12:35.320 --> 0:12:38.120 a permit, You do so at a time when it's 0:12:38.160 --> 0:12:41.160 not going to be totally disruptive to the rest of 0:12:41.200 --> 0:12:44.560 campus life, and you know, and then they have to 0:12:44.600 --> 0:12:46.360 issue it to you if and they can't deny it 0:12:46.400 --> 0:12:48.880 to you because they disagree with your message. Depths fair enough, 0:12:49.200 --> 0:12:51.840 and in the encampments all as far as I know, 0:12:52.360 --> 0:12:57.640 violate the colleges and universities content neutral rules. Now that's 0:12:57.679 --> 0:13:00.720 not to say that they're being enforced necessarily in a 0:13:00.720 --> 0:13:03.760 content neutral manner. It is to say that there is 0:13:04.040 --> 0:13:10.280 a completely legitimate rationale for saying you can't have an encampment, 0:13:10.360 --> 0:13:14.839 regardless of what side of whatever issue you're supporting. There's 0:13:14.880 --> 0:13:18.640 a Supreme Court case that involves almost literally that question. 0:13:18.720 --> 0:13:22.280 Is the case called Clark against Community for Creative Non Violence, 0:13:22.720 --> 0:13:26.360 the case in which a group of people wanted to 0:13:27.000 --> 0:13:30.439 also did set up an encampment on the Washington Mall 0:13:30.880 --> 0:13:36.000 to dramatize the problem of homelessness in America. So it's 0:13:36.000 --> 0:13:39.079 certainly a worthy cause, and you can see how setting 0:13:39.120 --> 0:13:43.079 up an encampment would express that message. But it violated 0:13:43.120 --> 0:13:46.520 a National Parks rule. But you couldn't camp accept in 0:13:46.559 --> 0:13:49.480 designated areas in the National Parks, and the Washington DC 0:13:49.679 --> 0:13:52.439 Mall is run by the Park Service. The case goes 0:13:52.520 --> 0:13:54.480 up to the Supreme Court, and the Supreme Court said, yes, 0:13:54.520 --> 0:13:58.880 they're expressing a message, but the no camping rule is 0:13:58.920 --> 0:14:01.920 a content neutral rule, and here there hadn't been a 0:14:02.040 --> 0:14:06.960 showing that the government was telling the protesters, don't have 0:14:07.040 --> 0:14:11.319 your encampment because of hostility to their message. So if 0:14:11.840 --> 0:14:16.280 the current protesters want to make a persuasive case that 0:14:16.720 --> 0:14:19.680 they've got a first moment right to be there, I 0:14:19.720 --> 0:14:22.280 think they would need to show that the colleges and 0:14:22.360 --> 0:14:25.880 universities that are telling them they can't be there are 0:14:25.960 --> 0:14:31.360 doing so because of disagreement with their hostility to their message. 0:14:31.400 --> 0:14:33.160 And it's you know, I don't have a view about 0:14:33.160 --> 0:14:35.440 whether that showing they could make. I would need to 0:14:35.480 --> 0:14:37.880 know a lot more of the facts at you know, 0:14:37.920 --> 0:14:40.960 each of the places where there was that kind of conflict. 0:14:41.520 --> 0:14:45.360 There have been more than two thousand arrests across the country. 0:14:45.440 --> 0:14:48.720 Let's use Columbia, though, as an example, because I think 0:14:48.800 --> 0:14:53.120 that's where the arrests started. Let's say these students are charged, 0:14:53.720 --> 0:14:57.760 Do they have any defense based on the First Amendment? 0:14:57.840 --> 0:15:04.120 Say so, that's a complicated question, because their right to 0:15:04.320 --> 0:15:09.360 free speech as against Columbia is of course contractual right. 0:15:09.400 --> 0:15:13.840 Because I said that Columbia adopt free speech principles voluntarily, 0:15:13.840 --> 0:15:16.280 it's not imposed by the First Amendment. There is a 0:15:16.440 --> 0:15:22.640 New York State law that governs discipline for various reasons, 0:15:22.720 --> 0:15:26.240 but it doesn't really create a free speech right if 0:15:26.240 --> 0:15:28.680 they are prosecuted. And my understanding is a lot of 0:15:28.800 --> 0:15:31.320 people are being released. Although I don't know what's happening 0:15:31.360 --> 0:15:33.520 with the latest rounds of arrests, I know that was 0:15:33.560 --> 0:15:36.560 true of the earlier round. But if they are prosecuted, 0:15:36.640 --> 0:15:41.920 in order to have a successful First Amendment defense, they 0:15:41.960 --> 0:15:46.800 would need to show that they were being selectively prosecuted 0:15:47.000 --> 0:15:49.920 by New York State or New York City because of 0:15:50.120 --> 0:15:54.560 their message, as opposed to because they were engaged in 0:15:54.640 --> 0:15:57.680 criminal trespass and we're told to leave and give an 0:15:57.720 --> 0:16:02.280 opportunity to leave didn't and it's notoriously difficult to make 0:16:02.320 --> 0:16:06.680 out a successful case of selective prosecution, and so I 0:16:06.720 --> 0:16:11.240 think the answer is very likely no, especially because my 0:16:11.360 --> 0:16:14.360 understanding is the New York City Police only moved in 0:16:14.400 --> 0:16:18.400 at Columbia's invitation. So even if we think Columbia is 0:16:18.800 --> 0:16:21.840 acting because they don't like the messages, I don't think 0:16:21.880 --> 0:16:24.640 it's established. But even if we thought that, that doesn't 0:16:24.640 --> 0:16:27.200 mean that New York City is proceeding because they don't 0:16:27.280 --> 0:16:29.600 like the message. As I said, the NYPD only goes 0:16:29.640 --> 0:16:32.320 in once they're invited. You can think of it in 0:16:32.360 --> 0:16:35.080 the following way, right, that is, there is a law 0:16:35.120 --> 0:16:39.440 against criminal trespass. If somebody comes into your apartment when 0:16:39.440 --> 0:16:41.840 you're not there, and then you ask them to leave, 0:16:41.840 --> 0:16:43.880 and they refuse to leave, and you call the cops, 0:16:44.320 --> 0:16:47.640 the police come and they remove them, doesn't matter what 0:16:47.680 --> 0:16:50.680 your reason was for calling the cops. Maybe you didn't 0:16:50.720 --> 0:16:52.400 like that they were there because they were saying things 0:16:52.400 --> 0:16:56.720 that you found offensive. That wouldn't convert the police action 0:16:56.840 --> 0:17:00.360 in removing that person into a violation of the First Amendment. 0:17:01.320 --> 0:17:04.879 As far as what the administrators are doing here, do 0:17:04.960 --> 0:17:06.679 you think there's a better. 0:17:06.480 --> 0:17:10.840 Way for of course, yes right, I'm not endorsing the 0:17:10.960 --> 0:17:16.760 calling of the comps as a wise ways for Columbia 0:17:16.960 --> 0:17:20.280 or UCLA or any of these other places, certainly not 0:17:20.320 --> 0:17:23.040 the University of Texas, where you know, the governor seems 0:17:23.080 --> 0:17:25.720 to have sent them in. But I'm not saying that 0:17:25.720 --> 0:17:30.480 that's the best way for an administration to handle these demonstrations. 0:17:31.080 --> 0:17:32.800 At the very least, you would want there to be 0:17:33.320 --> 0:17:37.840 lots of de escalatory steps taken. You know, I understand 0:17:37.920 --> 0:17:41.600 that in some of these campuses there were negotiations that 0:17:41.640 --> 0:17:44.639 were going on, and apparently they didnt lead to very much. 0:17:44.800 --> 0:17:49.160 But again, that's a question for university administrators. I think 0:17:49.320 --> 0:17:55.000 it's a tough question because part of having content neutral 0:17:55.160 --> 0:17:59.000 rules means enforcing them in a content neutral manner. And 0:17:59.080 --> 0:18:04.600 so while of course you want to avoid suspending, much 0:18:04.680 --> 0:18:08.399 less subjecting to criminal prosecution your own students, if you 0:18:08.600 --> 0:18:13.320 don't enforce the rules even handedly, you potentially set yourself 0:18:13.400 --> 0:18:17.760 up for a free speech challenge in some later case. 0:18:18.440 --> 0:18:21.040 So again, you know, I'm not sure what the right 0:18:21.080 --> 0:18:25.600 answer is. I'm kind of glad I'm not in university administration. 0:18:25.640 --> 0:18:28.199 I think it's a very difficult position to be in 0:18:28.920 --> 0:18:32.160 at any time, but especially now, because there are all 0:18:32.200 --> 0:18:35.600 sorts of conflicting pressures. I'm just trying to give you 0:18:35.640 --> 0:18:39.639 what I understand to be the background law on the question. 0:18:40.040 --> 0:18:42.359 I mean, as part of the problem here, there's so much, 0:18:42.800 --> 0:18:47.719 you know, political pressure, starting with the hearings in Congress. 0:18:47.600 --> 0:18:51.720 That's right. I mean, arguably everything we're seeing over the 0:18:51.800 --> 0:18:58.440 last couple of weeks is a consequence of the House Committee, 0:18:58.920 --> 0:19:04.280 specially represent in that of Stephonic calling the Columbia University 0:19:04.320 --> 0:19:10.920 president to testify and her then giving answers that sort 0:19:10.960 --> 0:19:14.280 of didn't really satisfy anybody, but put her in a 0:19:14.320 --> 0:19:19.119 position where I think she felt she had committed to 0:19:19.800 --> 0:19:23.280 cracking down, and then the crackdown, which of course was 0:19:23.359 --> 0:19:29.240 completely counterproductive and led to the encampments sprouting up all 0:19:29.240 --> 0:19:31.800 across the country. Now that's not to say that some 0:19:31.840 --> 0:19:35.199 other triggering event might not have caused this, or not 0:19:35.320 --> 0:19:41.680 to detegrate the underlying concern of the protesters about the 0:19:41.720 --> 0:19:45.520 conduct of the Gaza war, but it is to say 0:19:45.560 --> 0:19:51.800 that there are lots of politicians, administrators, and others who 0:19:51.840 --> 0:19:56.040 have acted in ways that seem to have heightened the 0:19:56.080 --> 0:20:00.359 conflict rather than attempted to have a conversation. 0:20:00.160 --> 0:20:04.159 What's the hardest part of this analysis of what the 0:20:04.200 --> 0:20:07.560 First Amendment protects and what it doesn't. 0:20:08.320 --> 0:20:14.119 I mean, I think the truly difficult pieces we've already 0:20:14.160 --> 0:20:18.320 talked about. That is, you know, the place at which 0:20:19.080 --> 0:20:26.760 you draw the line between permissible free speech and prescribable harassment. 0:20:27.480 --> 0:20:30.560 The one thing I would add to that is that 0:20:30.960 --> 0:20:35.959 it's complicated by the fact that there are you know, 0:20:36.119 --> 0:20:40.199 many participants in these encampments, and so you know, in 0:20:40.280 --> 0:20:43.760 New York, you know, you saw Mayor Adams complaining yesterday 0:20:43.800 --> 0:20:48.720 about outside agitators sort of infiltrating the Columbia takeover of 0:20:48.760 --> 0:20:53.520 Hamilton Hall and the protests generally. And you know, that's 0:20:53.560 --> 0:20:58.320 an old problem, especially on the political left, that you 0:20:58.480 --> 0:21:03.560 have movements that attract people who have views that are 0:21:03.640 --> 0:21:08.439 sort of within a range of sort of within a 0:21:08.480 --> 0:21:13.000 standard deviation or two of the center of public opinion, 0:21:13.359 --> 0:21:15.879 and then you have people who are truly radical, and 0:21:15.920 --> 0:21:17.840 not just radical in their substance views, but in the 0:21:17.920 --> 0:21:21.200 means that they want to use, who then attach themselves 0:21:21.760 --> 0:21:26.159 to these movements, and that can then undercut the other folks. 0:21:26.160 --> 0:21:28.119 And so, you know, in addition, to the question of 0:21:28.160 --> 0:21:33.159 how do you protect students who feel, in some cases 0:21:33.280 --> 0:21:37.480 justifiably threatened by the protests without you know, shutting down 0:21:37.520 --> 0:21:40.760 people's right to express themselves. There's also the question of 0:21:41.119 --> 0:21:44.679 how do you separate out the people who are really 0:21:44.720 --> 0:21:48.800 engaged in harassment or threats what have you, from people 0:21:48.840 --> 0:21:51.520 who are just there legitimately to protest. And I think 0:21:51.560 --> 0:21:53.119 that's a very very hard question. 0:21:53.440 --> 0:21:55.840 The line is not clear. The Supreme Court has never 0:21:55.880 --> 0:21:57.840 clarified the line between the two. 0:21:58.400 --> 0:22:00.480 No, I mean, so the scrit has never face to 0:22:00.600 --> 0:22:05.640 case in which the issue was somebody is being charged 0:22:05.720 --> 0:22:09.399 with racial or sexual harassment, whether it's an employer for 0:22:09.440 --> 0:22:12.600 failing to shut it down, whatever, and there's a claim 0:22:12.640 --> 0:22:14.639 of free speech. On the other side, there are lower 0:22:14.680 --> 0:22:16.879 court cases that in Supreme Ware cases that seem to 0:22:16.920 --> 0:22:21.560 just accept that it's permissible for the government to require 0:22:22.000 --> 0:22:26.240 private employers, private universities, et cetera, to restrict harassment, or 0:22:26.280 --> 0:22:30.320 even public universities to restrict harassment and harassment includes creating 0:22:30.320 --> 0:22:34.879 a hostile environment. But they don't directly address the question 0:22:35.119 --> 0:22:39.080 of you know, well, what if the basis for finding 0:22:39.280 --> 0:22:43.560 that it's a hostile environment is that people are engaged 0:22:43.760 --> 0:22:47.919 in protests that you know, express a viewpoint but also 0:22:48.400 --> 0:22:50.680 hit home with other people in the community. Yeah, that 0:22:50.760 --> 0:22:54.320 is unexplored territory. There's academic writing on it, but again 0:22:54.440 --> 0:22:57.879 no definitive Supreme Court case. So two other things. One is, 0:22:58.000 --> 0:22:59.919 I want to be clear, I'm speaking on my bi 0:23:00.160 --> 0:23:03.640 half as a constitutional scholar. I am in no way 0:23:03.680 --> 0:23:07.160 representing the views of Cornell University or its administration, which 0:23:07.400 --> 0:23:10.000 you know I think that's always true, but especially now, 0:23:10.000 --> 0:23:12.760 I want that to be clear. And the second thing 0:23:12.840 --> 0:23:16.960 is I very rarely give legal advice on air, but 0:23:17.000 --> 0:23:19.800 I am now going to give legal advice to all 0:23:19.920 --> 0:23:24.680 university presidents throughout the country. If you're asked to testify 0:23:24.880 --> 0:23:28.320 before Congress about any of this stuff, don't do it 0:23:28.640 --> 0:23:31.240 unless you have a subpoena. That's my advice, because no 0:23:31.280 --> 0:23:32.920 good can possibly come of it. 0:23:32.960 --> 0:23:35.800 Sounds like good advice, because it certainly hasn't in the 0:23:35.880 --> 0:23:39.320 latest cases. Thanks so much for your insights, Mike. That's 0:23:39.359 --> 0:23:42.800 Professor Michael Dwarf of Cornell Law School. Coming up next 0:23:42.800 --> 0:23:45.040 on the Bloomberg Law Show. We'll take a look at 0:23:45.119 --> 0:23:47.880 day six, So the Trump hush money trial. I'm June 0:23:47.920 --> 0:23:51.879 Grosso and you're listening to Bloomberg. Juris in day six 0:23:52.000 --> 0:23:55.160 of Donald Trump's hush money trial heard perhaps the most 0:23:55.160 --> 0:23:58.800 colorful piece of evidence presented to them so far to 0:23:58.880 --> 0:24:01.720 connect Trump to the money payments at the center of 0:24:01.760 --> 0:24:04.959 his criminal trial in Manhattan. It was a recording of 0:24:05.040 --> 0:24:09.280 Trump discussing with his then lawyer and personal fixer, Michael Cohen, 0:24:09.800 --> 0:24:12.679 a plan to purchase the silence of a playboy model 0:24:12.960 --> 0:24:15.720 who said she had an affair with the former president. 0:24:15.960 --> 0:24:17.280 And I spoke to Alan about it. 0:24:17.359 --> 0:24:20.520 When it comes time for the financing, which will be listening, 0:24:21.680 --> 0:24:25.439 you will have to no no, no, no no, I 0:24:25.440 --> 0:24:26.720 got no no no. 0:24:26.840 --> 0:24:29.520 Joining me is Dave Ahrenberg, the state attorney for Palm 0:24:29.520 --> 0:24:34.320 Beach County. This morning there was a hearing, another contempt hearing, 0:24:34.560 --> 0:24:39.919 and part of what Trump's defense showed was all the 0:24:39.960 --> 0:24:43.359 times that Michael Cohen had attacked Trump, and their theory 0:24:43.480 --> 0:24:46.920 is Trump is allowed to respond to these kinds of attacks. 0:24:47.359 --> 0:24:47.560 Yeah. 0:24:47.600 --> 0:24:50.600 The reason why you have this gag order is in 0:24:50.680 --> 0:24:54.119 part to protect witnesses. It's also to protect jurors, but 0:24:54.359 --> 0:24:57.760 it's to protect witnesses from intimidation. And what Trump's lawyers 0:24:57.760 --> 0:25:00.360 are saying is that you can't intimidate Michael Cohen. He 0:25:00.400 --> 0:25:02.840 gives as good as he gets, And I think that's 0:25:02.880 --> 0:25:05.840 actually a decent argument. Michael Conan is not your typical witness. 0:25:06.119 --> 0:25:09.040 He's not going to shy away from the spotlight because 0:25:09.119 --> 0:25:10.719 of what Trump says about him, because they've been going 0:25:10.760 --> 0:25:13.080 at each other for a while. So I think this 0:25:13.119 --> 0:25:16.320 is another reason why if Trump is sanctioned for the 0:25:16.400 --> 0:25:19.080 violations of the gag order, because he is violating it, 0:25:19.080 --> 0:25:21.480 it'll be these small fines. He's not going to be 0:25:21.480 --> 0:25:23.240 wearing an orange jumpsuit anytime soon. 0:25:23.960 --> 0:25:27.359 Also, you know, he didn't criticize David Pecker, who was 0:25:27.359 --> 0:25:29.840 the first witness, the former publisher of the National Choir, 0:25:29.960 --> 0:25:32.800 but he said things like, David Pecker be nice. 0:25:33.400 --> 0:25:36.679 David Pecker is a really compelling witness because he and 0:25:36.720 --> 0:25:39.399 Trump have remained friends over the years. He doesn't have 0:25:39.440 --> 0:25:42.200 an AXA grind. The only potential bias with David Pecker 0:25:42.240 --> 0:25:45.119 is that he's under a non prosecution agreement. So Trump's 0:25:45.160 --> 0:25:47.320 lawyers have said that, ay, you're doing this is save 0:25:47.359 --> 0:25:50.760 your own hide. But Pecker referred to Trump as a mentor, 0:25:50.880 --> 0:25:53.520 and he still considered him a friend in his testimony, 0:25:53.640 --> 0:25:56.399 which makes his testimony even more powerful. But the bigger 0:25:56.480 --> 0:25:59.560 question is one you raise, why isn't Trump attacking Pecker 0:25:59.600 --> 0:26:02.560