WEBVTT - 'Cheap Speech' and SCOTUS on Speech 0:00:03.120 --> 0:00:08.360 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:09.160 --> 0:00:13.240 In the face of more and more disinformation on different platforms, 0:00:13.520 --> 0:00:16.600 what can be done to ensure that American voters can 0:00:16.640 --> 0:00:21.040 make informed decisions in free and fair elections? Joining me 0:00:21.160 --> 0:00:24.239 is Richard Hassan, a professor of law and political science 0:00:24.280 --> 0:00:27.560 at the University of California, Irvine. His new book is 0:00:27.680 --> 0:00:31.840 Cheap Speech. How Disinformation poisons Our Politics and How to 0:00:31.920 --> 0:00:35.280 Cure it. It's hard to believe that more than a 0:00:35.360 --> 0:00:38.440 year after the presidential election, there are still so many 0:00:38.520 --> 0:00:42.680 people who believe that the election was stolen from former 0:00:42.720 --> 0:00:46.200 President Donald Trump, despite all the court rulings to the contrary. 0:00:46.560 --> 0:00:50.160 How did he manage this or how did this come about? Well? 0:00:50.200 --> 0:00:55.400 A big reason for the continued persistence of belief and 0:00:55.480 --> 0:00:59.720 the false claim that the election was stolen is the 0:01:00.160 --> 0:01:04.679 that Donald Trump, the former president, was able to communicate 0:01:04.720 --> 0:01:09.560 this idea directly to voters and to others through his 0:01:09.720 --> 0:01:12.960 platforms on social media. If we lived in the old 0:01:13.160 --> 0:01:16.560 technological days, when there were just a few television stations, 0:01:16.600 --> 0:01:19.959 some newspapers, and a few other ways of getting news, 0:01:20.680 --> 0:01:24.840 it would have been hard for someone like Trump to 0:01:25.000 --> 0:01:28.679 have a platform where he could, in an unmediated way 0:01:28.880 --> 0:01:33.240 repeat the false claim. Um. But in our new social media, 0:01:33.720 --> 0:01:37.360 cable news environment, it's very easy to have repetition of 0:01:37.400 --> 0:01:40.280 these claims. By one count in the New York Times, 0:01:40.720 --> 0:01:44.360 donald Trump went to Twitter about four hundred times between 0:01:44.560 --> 0:01:47.000 the day of election Day in early November and November 0:01:47.080 --> 0:01:49.960 nine to make the false claim that the election was told. 0:01:50.040 --> 0:01:52.960 And so I think you can draw a pretty straight 0:01:52.960 --> 0:01:58.400 line from Trump's statements to both the belief among Republicans today, 0:01:58.640 --> 0:02:02.120 among some Republicans today that the election was stolen, as 0:02:02.160 --> 0:02:05.800 well as the January six insurrection. You may remember it 0:02:05.840 --> 0:02:09.360 was Donald Trump who first on Twitter invited his supporters 0:02:09.360 --> 0:02:12.640 to a quote wild time in Washington, d C. On 0:02:12.720 --> 0:02:16.600 January six, the date of Congress counted the Electoral College votes. 0:02:16.880 --> 0:02:22.120 Describe what cheap speech is. So the term cheap speech 0:02:22.680 --> 0:02:25.520 is not originally mine. It originates with a professor at 0:02:25.560 --> 0:02:30.720 U c. L. He was writing back in an article 0:02:30.800 --> 0:02:33.720 Leah Law Journal, an article called cheap speech and what 0:02:33.760 --> 0:02:39.080 it will do about the upcoming uh information revolution We 0:02:39.080 --> 0:02:43.160 were about to have. Where we go from that scarcity 0:02:43.320 --> 0:02:47.400 of means of communicating just a few television and radio 0:02:47.440 --> 0:02:52.200 stations and some newspapers to a flood of speech. And 0:02:52.360 --> 0:02:55.960 Box saw this as a great opportunity. You know, back 0:02:56.080 --> 0:02:58.160 in the fifties, if you didn't like something in the 0:02:58.200 --> 0:02:59.800 New York Times, you could write a letter to the 0:03:00.120 --> 0:03:02.000 or you know, if you're lucky, it would get printed, 0:03:02.000 --> 0:03:04.560 and otherwise you could just yell into the winds. And now, 0:03:04.639 --> 0:03:07.440 of course everyone can have a platform and can say 0:03:07.440 --> 0:03:10.520 whatever they like, and the only limit on how much 0:03:10.560 --> 0:03:12.880 it spreads is how much people want to read or 0:03:12.919 --> 0:03:15.720 hear what you have to say. So he saw the 0:03:15.760 --> 0:03:18.919 loss of intermediaries as the most good thing for democracy 0:03:19.040 --> 0:03:22.520 and for opening up channels of communication. And I think 0:03:22.560 --> 0:03:26.440 there are many good things that have happened with the 0:03:26.520 --> 0:03:30.840 change to this cheap speech era, but it also has 0:03:30.880 --> 0:03:33.000 a dark side. And in the book Cheap Speech, I 0:03:33.080 --> 0:03:35.800 argue that there's a second meaning to the term, which 0:03:35.880 --> 0:03:40.120 is that what we have today is a system that 0:03:40.160 --> 0:03:43.160 privileges low value speech over high value speech. And what 0:03:43.200 --> 0:03:45.880 I mean by that is, I think for voters in 0:03:45.920 --> 0:03:49.800 the elections, one of the highest valued speeches investigative journalism 0:03:49.880 --> 0:03:51.920 by journalists who spent a lot of time, a lot 0:03:51.960 --> 0:03:54.240 of effort, very expensive to figure out what's going on, 0:03:54.480 --> 0:03:58.960 a hold politicians accountable for what they're doing. That's really 0:03:58.960 --> 0:04:02.880 hard to produce, really expensive to produce, and the economic 0:04:02.960 --> 0:04:07.680 model that supports that has collapsed as advertising dollars have 0:04:07.760 --> 0:04:13.640 shifted to places like Google and Facebook. But creating literally 0:04:13.680 --> 0:04:16.240 fake news, you know, making things up and putting them 0:04:16.279 --> 0:04:19.000 on a nice looking website that looks like the news 0:04:19.080 --> 0:04:22.280 that that's very cheap to do, and there's actually some 0:04:22.320 --> 0:04:25.120 demand for that now for a bunch of complicated reasons. 0:04:25.200 --> 0:04:28.240 And so we live in a cheap speech system where um, 0:04:28.839 --> 0:04:34.240 not everything that voters should have easy access to is available, um. 0:04:34.760 --> 0:04:39.920 And lots of things that might distract voters or mislead 0:04:40.000 --> 0:04:42.520 voters that's very easy to get. And so with the 0:04:42.560 --> 0:04:46.440 loss of intermediaries, it's harder for voters to make competent decisions. 0:04:47.400 --> 0:04:50.960 It strikes me that if someone who watches only one 0:04:51.040 --> 0:04:55.280 news channel, let's say Fox, comes away with different information 0:04:55.320 --> 0:04:59.560 a different viewpoint than someone who watches let's say CNN. 0:04:59.720 --> 0:05:02.440 And as you write in your book, there's no Walter 0:05:02.600 --> 0:05:06.480 Cronkite anymore, like a trusted source of information that people 0:05:06.520 --> 0:05:10.200 can go to, right, So, you know, it's just totally 0:05:10.240 --> 0:05:12.839 different atmosphere, And the question is, you know, how do 0:05:12.880 --> 0:05:15.600 you get voters the good information that they need when 0:05:16.120 --> 0:05:20.159 we're all not just having different opinions about things, but 0:05:20.360 --> 0:05:22.960 a different set of facts about what's going on. All 0:05:22.960 --> 0:05:28.120 school About his book Cheap Speech, there are fears expressed 0:05:28.160 --> 0:05:31.880 all the time that we're losing our democracy. Is it 0:05:31.960 --> 0:05:36.320 the threat to democracy from cheap Speech? Is that more dangerous? 0:05:36.440 --> 0:05:38.600 Or is it the threat just from people who are 0:05:38.640 --> 0:05:43.760 taking over some local and state government's election systems, you know, 0:05:43.800 --> 0:05:48.919 the conspiracy theorists, the believers in Trump having won the election. 0:05:49.640 --> 0:05:52.880 Is that more dangerous than the Cheap Speech? Well, I 0:05:52.880 --> 0:05:55.080 think I wouldn't separate the two because I think one 0:05:55.080 --> 0:05:58.880 of the reasons why we had the January six insurrection, 0:05:59.040 --> 0:06:03.520 why there are candidates running for office to run elections 0:06:04.160 --> 0:06:09.120 who now say that election was stolen despite all reliable 0:06:09.160 --> 0:06:12.080 evidence of the contrary, is because we live in this 0:06:13.200 --> 0:06:16.880 um media environment in which there is no penalty for 0:06:17.560 --> 0:06:21.160 making these kind of statements, and a government penalty, but 0:06:21.200 --> 0:06:23.320 I mean a penalty in the court of public opinion. People. 0:06:23.560 --> 0:06:27.640 People don't just laugh away conspiracy theories and theories of 0:06:27.960 --> 0:06:32.480 stolen elections. But when you have a political system where 0:06:33.080 --> 0:06:36.240 millions of people don't believe that the election was legitimately run, 0:06:36.880 --> 0:06:39.479 they might be more willing to tolerate an attempt to 0:06:39.760 --> 0:06:43.200 steal back the election of the next time around. And so, 0:06:43.400 --> 0:06:46.600 you know, I really think that there was, before we 0:06:46.640 --> 0:06:50.920 had the social media revolution, already polarization, but social media 0:06:51.160 --> 0:06:54.880 has made it more polarized. We already had some people 0:06:55.200 --> 0:06:59.840 who don't have full respect for our democratic process, but 0:07:00.080 --> 0:07:03.200 the media environment makes it easier to spread those ideas 0:07:03.240 --> 0:07:05.880 and also for people to find each other. So one 0:07:05.880 --> 0:07:07.919 of the things that we saw about January six is 0:07:07.960 --> 0:07:11.080 not only were there people who embrace the conspiracy theories 0:07:11.080 --> 0:07:13.880 about the election being stolen, but they could use Facebook 0:07:13.880 --> 0:07:17.720 groups to find each other to organize. Right the communications revolution, 0:07:17.760 --> 0:07:20.560 people from all over the country could find each other. 0:07:21.040 --> 0:07:23.800 There may be only one in a hundred thousand people 0:07:23.840 --> 0:07:26.160 who are willing to do something, but when you can 0:07:26.200 --> 0:07:28.440 ban them all together from across the country, they could 0:07:28.480 --> 0:07:31.000 be much more powerful than you know, if people were 0:07:31.000 --> 0:07:34.000 trying to find each other in old fashioned ways. And 0:07:34.040 --> 0:07:36.119 I'm not saying that we should return to the days 0:07:36.200 --> 0:07:38.080 of Walter Cronkite. I mean, there was a lot of 0:07:38.360 --> 0:07:42.000 important news that wasn't covered, And think about the George 0:07:42.000 --> 0:07:47.320 Floyd racial justice movement. Much easier to organize when you 0:07:47.400 --> 0:07:51.120 have the ability to share information, to share videos of 0:07:51.280 --> 0:07:54.880 police brutality, etcetera. But we have to think about what 0:07:54.960 --> 0:07:58.000 we can do to give voters the tools that they 0:07:58.040 --> 0:08:01.960 need to be able to get accurate information to understand 0:08:02.000 --> 0:08:05.000 what's going on in our elections and our democracy. There 0:08:05.000 --> 0:08:09.680 are some who say more speech is better, more speech helps. 0:08:10.200 --> 0:08:14.080 Do you think that there should be laws limiting speech? 0:08:14.880 --> 0:08:17.880 So generally speaking, I don't favor laws limiting speech. I 0:08:18.120 --> 0:08:22.960 only have two small exceptions to that in the proposals 0:08:22.960 --> 0:08:25.560 in my book Cheap Speech, both of which the Supreme 0:08:25.560 --> 0:08:29.320 Court has indicated our constitutional One are laws that limit 0:08:29.440 --> 0:08:32.520 foreign interference in American elections. In the Supreme Court, in 0:08:32.559 --> 0:08:35.800 a case called Blueman versus Federal Election Commission, affirmed a 0:08:35.880 --> 0:08:38.720 lower court ruling that such laws don't violate the First Amendment. 0:08:39.320 --> 0:08:44.000 The other is a set of laws that would that 0:08:44.000 --> 0:08:48.679 would ban empirically verifiable false election speech. So if you 0:08:48.760 --> 0:08:51.840 lie about when, where, or how people vote. We have 0:08:51.880 --> 0:08:54.040 a case that's pending right now about a person who 0:08:54.080 --> 0:08:57.480 live that the that you could vote by text, and 0:08:57.559 --> 0:09:04.280 he directed those messages to African American voters. In the election, 0:09:04.320 --> 0:09:07.239 about five thousand people tried to vote by text or hashtag, 0:09:07.520 --> 0:09:10.880 but how many of them ultimately realized were able to vote. 0:09:11.160 --> 0:09:14.400 But that sort of space should be I think outlawed. 0:09:14.840 --> 0:09:17.640 That's very very narrow. That doesn't apply to most of 0:09:17.679 --> 0:09:20.360 the kinds of troubling state about elections that we hear. 0:09:20.960 --> 0:09:24.199 Most of what I want to do is to enhance 0:09:24.280 --> 0:09:27.280 what voters know. So, for example, I want to improve 0:09:27.320 --> 0:09:30.560 our disclosure laws so if you're actually being targeted in 0:09:31.120 --> 0:09:35.880 uh use an example in Alabama, we had some Democratic 0:09:35.960 --> 0:09:41.400 operatives who pretended to be very conservative Baptists supporting Roy Moore, 0:09:41.400 --> 0:09:45.120 trying to claim that Roy Moore would would want to 0:09:45.120 --> 0:09:48.400 get rid of alcohol in the state of Alabama as 0:09:48.440 --> 0:09:50.840 a way of trying to get these Republican voters not 0:09:50.880 --> 0:09:54.520 to vote. I think that Alabama voters would want to 0:09:54.559 --> 0:09:59.960 know that these conservative Baptists were actually liberal Democrats, or 0:10:00.240 --> 0:10:03.320 that it wasn't African Americans trying to convince people that 0:10:03.520 --> 0:10:05.880 Hillary Clinton doesn't believe in black lives matter. It was 0:10:06.240 --> 0:10:09.760 Russian operatives in a boiler room in St. Petersburg. So 0:10:10.120 --> 0:10:15.480 improved disclosure as well as labeling altered videos so called 0:10:15.520 --> 0:10:18.360 deep fakes, has altered that people know what they're seeing, 0:10:18.880 --> 0:10:21.040 whether they can believe what they see with their own eyes. 0:10:21.840 --> 0:10:24.160 Tools like that on the legal side, I think would 0:10:24.160 --> 0:10:26.680 be the most helpful. In the past, the risk of 0:10:26.880 --> 0:10:30.000 stolen elections seem to be minimal. You know, you'd hear 0:10:30.040 --> 0:10:33.360 a case here and there in North Carolina. Whatever are 0:10:33.360 --> 0:10:37.400 the risks greater? Today? I think that the amount of 0:10:38.040 --> 0:10:41.320 election fraud, whether committed by voters or by others, is 0:10:41.400 --> 0:10:46.800 quite low. Ah, there are isolated instances. We see it 0:10:47.000 --> 0:10:51.560 in every election. A ballot here, a ballot there. This 0:10:51.720 --> 0:10:56.960 was the most watched and investigated election I think in 0:10:57.000 --> 0:11:01.080 American history, and it turned up very few cases of fraud. 0:11:01.280 --> 0:11:03.120 You know. The idea is that the fraud is going 0:11:03.160 --> 0:11:05.319 to be so massive that it's going to swing elections, 0:11:05.360 --> 0:11:08.679 but so well done that it can't be detected. And 0:11:08.960 --> 0:11:11.880 it's just not realistic. And you know, when we see 0:11:12.520 --> 0:11:15.800 fraud in elections, it tends to be in small elections 0:11:15.840 --> 0:11:18.720 where moving a few votes could make a difference. I 0:11:18.800 --> 0:11:21.760 certainly think we need to continue to be on guard 0:11:22.000 --> 0:11:28.400 against these kinds of attempts to manipulate election outcomes. But 0:11:28.880 --> 0:11:30.880 many of the laws that are being passed the name 0:11:30.920 --> 0:11:34.360 of preventing voter fraud are really more about pleasing the 0:11:34.400 --> 0:11:37.200 Republican base who has been told that our elections are 0:11:37.280 --> 0:11:40.640 right with fraud, and that evinces a kind of response 0:11:40.679 --> 0:11:43.880 from these election officials. When I think about the next 0:11:43.960 --> 0:11:48.760 presidential election, I just wonder what's going to happen. Is 0:11:48.760 --> 0:11:52.719 it going to be like elections before or they're going 0:11:52.760 --> 0:11:56.640 to be outrageous claims, all kinds of problems that elections 0:11:56.720 --> 0:12:00.680 sites and in counting votes. What has to be done 0:12:00.720 --> 0:12:04.319 now to make it as normal as possible to avoid 0:12:05.320 --> 0:12:09.040 some of these problems. Well, in cheap speech, I argue 0:12:09.080 --> 0:12:10.800 that there are some legal steps we could take to 0:12:10.840 --> 0:12:15.160 improve the information atmosphere for our elections. That that's only 0:12:15.160 --> 0:12:18.640 one piece of what we need for um pre and 0:12:18.720 --> 0:12:21.720 fair elections, elections that people who accept this legitimate the 0:12:21.760 --> 0:12:24.599 next time. In a piece that just posted at the 0:12:24.640 --> 0:12:27.920 Harvard Law Review Forum, I advocate a number of steps 0:12:27.920 --> 0:12:32.720 to avoid election subversion future elections. That's where the election 0:12:33.400 --> 0:12:37.720 loser might try and get declared the election winner, as 0:12:37.720 --> 0:12:40.079 we saw Trump try to do in when he tried 0:12:40.120 --> 0:12:44.160 to manipulate the electoral college process to turn his defeat 0:12:44.160 --> 0:12:46.280 into a victory. I mean, there are a number of 0:12:46.320 --> 0:12:51.120 things that we could do legally unrelated to speech. For example, 0:12:51.440 --> 0:12:54.160 Congress could pass a law that would require every state 0:12:54.240 --> 0:12:57.240 to use voting machines that produce a piece of paper 0:12:57.280 --> 0:12:59.920 ballots that could be recounted by hand in the event 0:13:00.040 --> 0:13:04.679 that there is a problem with how an election is run. Um. 0:13:04.800 --> 0:13:09.439 You may remember Donald Trump claimed that the Georgia election 0:13:09.559 --> 0:13:11.960 was fraudulent and they did a full hand recount of 0:13:12.000 --> 0:13:14.440 every ballot of the state. You can't do that with 0:13:14.480 --> 0:13:16.640 fully electronic machines. So there are a number of things 0:13:16.640 --> 0:13:20.000 that could be done in terms of ballot transparency, voting 0:13:20.679 --> 0:13:25.240 rules being transparent, also fixing the electoral college rules the 0:13:25.280 --> 0:13:29.160 Congress applies. There's some talk of a bipartisan compromise there, 0:13:29.520 --> 0:13:31.520 but I think beyond that it's going to have to 0:13:31.559 --> 0:13:35.640 be not just legal change, but social and political organizing 0:13:36.120 --> 0:13:39.040 to find those people in the center who might disagree 0:13:39.080 --> 0:13:42.079 about all kinds of things politically, but agree that we 0:13:42.080 --> 0:13:44.600 should have a free and fair election where the results 0:13:44.600 --> 0:13:48.360 are not dictated by whoever is counting the votes, but 0:13:48.400 --> 0:13:50.960 instead reflectible of the people. I want to talk for 0:13:50.960 --> 0:13:54.680 a moment about Elon Musk taking over Twitter. He is 0:13:54.720 --> 0:13:57.960 a free speech absolutist. He said that there should be 0:13:58.040 --> 0:14:02.440 minimal interference. If it's a gray area, let the speech exist. 0:14:03.120 --> 0:14:07.440 How do you think he's taking over Twitter will change things? Well, 0:14:07.480 --> 0:14:10.920 first of all, he might say he's a free speech absolutist, 0:14:11.080 --> 0:14:13.120 but if he wants to run a platform that's actually 0:14:13.160 --> 0:14:15.480 going to make money, I don't think he's going to 0:14:15.559 --> 0:14:19.120 let everything on the platform that the First Amendment would allow. 0:14:19.760 --> 0:14:22.240 So you know, if there were no moderation of content, 0:14:22.320 --> 0:14:27.880 for example, our feeds on Twitter would be filled with 0:14:28.560 --> 0:14:32.000 hate speech, would be filled with pornography, would be filled 0:14:32.040 --> 0:14:35.080 with a lot of advertising for male enhancement pills. I mean, 0:14:35.080 --> 0:14:38.480 it would just be the kind of place that nobody 0:14:38.480 --> 0:14:41.720 would want to go. And so, uh, I think what 0:14:41.840 --> 0:14:44.520 he means is that Donald Trump and some of the 0:14:44.520 --> 0:14:47.920 other conservatives who are removed from the platform should be restored. 0:14:48.320 --> 0:14:51.280 I think that's very problematic. I think it's a private company, 0:14:51.320 --> 0:14:54.440 Twitter can make that decision, but I think that voters 0:14:55.040 --> 0:14:58.920 and consumers can also object to that, and the employees 0:14:58.920 --> 0:15:00.960 of the company can object By leaving. You know, the 0:15:01.000 --> 0:15:04.400 tech world is a very competitive world in terms of 0:15:04.480 --> 0:15:08.480 hiring employees, and if people at these companies object, you're 0:15:08.480 --> 0:15:11.280 going to lose some of the brain talent. And so, uh, 0:15:11.360 --> 0:15:14.640 you know, we'll see what decisions Elon Musk ends up making. 0:15:15.320 --> 0:15:17.280 I don't know that it's going to make things better. 0:15:17.840 --> 0:15:19.600 I don't know that he's in it for the profit 0:15:19.640 --> 0:15:22.920 as opposed to as a kind of vanity project. But 0:15:23.560 --> 0:15:26.760 we'll see how things go. I'm not at all even 0:15:26.760 --> 0:15:30.520 certain he'll end up owning the platform, given how things 0:15:30.520 --> 0:15:34.600 have been going. What are your final thoughts? So, I 0:15:34.600 --> 0:15:38.560 think American democracy is at a very challenging period. We 0:15:38.680 --> 0:15:43.280 have this highly polarized environment in which false claims about 0:15:43.320 --> 0:15:45.840 elections are easily spread, and I think the question we 0:15:45.880 --> 0:15:48.560 really need to ask is how can we assure that 0:15:48.600 --> 0:15:51.560 we can have both free and fair elections as well 0:15:51.600 --> 0:15:56.640 as a system where people can vigorously compete with each other, 0:15:57.320 --> 0:16:00.800 but where election lies don't take a for in terms 0:16:00.800 --> 0:16:04.920 of voters thinking about how to make decisions about Thanks 0:16:04.920 --> 0:16:08.360 so much, Rick. That's Professor Richard Hassan of the University 0:16:08.360 --> 0:16:13.520 of California, Irvine, the author of Cheap Speech, How disinformation 0:16:13.680 --> 0:16:18.360 poisons our politics, and how to cure it. This week, 0:16:18.480 --> 0:16:22.480 the unprecedented leak of a draft opinion overturning Roe v. 0:16:22.680 --> 0:16:26.440 Wade used up all the oxygen around the Supreme Court. 0:16:26.960 --> 0:16:29.960 Little noticed was an opinion in which the justices were 0:16:30.040 --> 0:16:35.240 unanimous in deciding that Boston violated the Constitution by refusing 0:16:35.280 --> 0:16:38.480 to fly a Christian Civic Groups flag at City Hall 0:16:38.880 --> 0:16:42.680 while raising the banners of some fifty other organizations. The 0:16:42.800 --> 0:16:46.600 Justice has rejected the city's contention that its flag raising 0:16:46.680 --> 0:16:50.640 program was a form of government speech that wasn't subject 0:16:50.680 --> 0:16:54.440 to the First Amendment, something that Justice Elena Kagan was 0:16:54.600 --> 0:16:59.160 unequivocal about during the oral arguments. A program that basically 0:16:59.240 --> 0:17:05.080 now says and and and previously, we welcome all commerce 0:17:05.760 --> 0:17:11.399 except for the most reprehensible, discriminatory speech and religious speech. 0:17:11.520 --> 0:17:15.199 That's what this program is. And why should we understand 0:17:15.320 --> 0:17:20.040 that to be government speech? To say everything's good except religion? 0:17:20.440 --> 0:17:23.480 Joining me is First Amendment? Law expert Timothy Zick, a 0:17:23.560 --> 0:17:27.280 professor at William and Mary Law School. Justice Brian wrote 0:17:27.320 --> 0:17:31.000 the majority opinion and said the central question was whether 0:17:31.040 --> 0:17:34.639 the city had created a public forum for private speech. 0:17:35.160 --> 0:17:37.879 Can you explain that for us. Sure. So when the 0:17:37.920 --> 0:17:41.240 government opened up a public space the Applausa or something 0:17:41.320 --> 0:17:44.240 like that for private speakers to come in a sort 0:17:44.240 --> 0:17:47.240 of diversity of views, to let them communicate in that space, 0:17:47.359 --> 0:17:51.040 then it's opened up essentially a forum for private speakers. 0:17:51.160 --> 0:17:55.520 And that's distinguished from the government using a space or 0:17:55.560 --> 0:17:59.440 a property to communicate its own messages. And that's the 0:18:00.000 --> 0:18:02.720 full dividing line in this case. If the government was 0:18:02.800 --> 0:18:06.760 using the flagpole to send out its own messages, then 0:18:06.760 --> 0:18:09.720 it would be government speech and it would be immune 0:18:09.760 --> 0:18:14.439 from First Amendment concerns. Exactly when the government speak, it 0:18:14.480 --> 0:18:17.160 gets to decide what it wants to say, what viewpoint 0:18:17.160 --> 0:18:19.919 it wants to express, what message it wants to communicate, 0:18:20.119 --> 0:18:22.520 which is quite different from you know, when the government 0:18:22.600 --> 0:18:25.359 regulates private speakers, it has to sort of obey the 0:18:25.359 --> 0:18:28.879 opposite rule, which is to say, it cannot discriminate based 0:18:28.880 --> 0:18:31.840 on what a private speaker wants to say, what viewpoints 0:18:31.840 --> 0:18:35.680 they want to commun Brier set out a three factor 0:18:35.840 --> 0:18:40.639 test for deciding whether a message is government speech. Was 0:18:40.680 --> 0:18:44.200 that a test you've seen before? Yeah, those are factors 0:18:44.240 --> 0:18:47.240 that the court has relied on in previous cases. So 0:18:47.440 --> 0:18:50.760 there have been several government speech cases before this one, 0:18:51.359 --> 0:18:55.000 involving things like monuments that are placed in a public 0:18:55.080 --> 0:18:59.840 park or specialty license place, so the state allows citizens 0:18:59.840 --> 0:19:03.960 to display on their automobiles, or trademarks in the case 0:19:04.000 --> 0:19:07.159 of federal trademark law. And so what the court was 0:19:07.200 --> 0:19:11.000 doing here is sort of pulling factors from those precedents 0:19:11.080 --> 0:19:15.040 and applying them to, in this case, Boston's flagpole policy. 0:19:15.480 --> 0:19:19.800 So the factors that are relevant here are the history 0:19:19.840 --> 0:19:23.879 of the expression at issue. Have flagpoles and flags been 0:19:24.000 --> 0:19:27.480 used historically, you might say, by governments to speak, what's 0:19:27.480 --> 0:19:30.400 the public likely perception as to who's doing the speaking, 0:19:30.800 --> 0:19:32.800 who's the statement going to be attributed to, And then 0:19:32.800 --> 0:19:35.440 the extent to which the government has actively shaped or 0:19:35.520 --> 0:19:38.600 controls the expression. And I think it's fair to say, 0:19:38.680 --> 0:19:42.159 reading Justice Prior's opinion, that the last element there seemed 0:19:42.200 --> 0:19:44.960 to be the most prominent one. Indeed, he seemed to 0:19:44.960 --> 0:19:47.720 suggest that Boston had a good case with respect of 0:19:47.800 --> 0:19:51.000 the first two elements. But since it hadn't really exercised 0:19:51.080 --> 0:19:54.600 any control as to what flags went on this third 0:19:54.640 --> 0:19:58.040 flagpole until this case, until the Christian flag was presented 0:19:58.080 --> 0:20:01.600 to it, that was the problem. What I'm curious about 0:20:01.840 --> 0:20:05.800 is this was a unanimous decision, yet the district court 0:20:05.880 --> 0:20:09.080 and the appellate court sided with the city. How did 0:20:09.119 --> 0:20:12.359 they both get it so wrong? Yeah, I think again, 0:20:12.359 --> 0:20:14.560 if you look at the courts factors, which is what 0:20:14.600 --> 0:20:16.680 the lower courts are looking at too, there's the sort 0:20:16.680 --> 0:20:21.119 of history of flags used over time. Governments, you know, 0:20:21.520 --> 0:20:26.000 typically traditionally have communicated messages and sentiments through flags. There's 0:20:26.000 --> 0:20:28.840 no question about that. And on a place like the 0:20:28.880 --> 0:20:31.520 Plaza which sits right next to city Hall, and the 0:20:31.640 --> 0:20:36.159 third flagpole that flies of flags next to the United 0:20:36.160 --> 0:20:40.119 States flags and the state flag of Massachusetts, one might 0:20:40.160 --> 0:20:43.200 attribute whatever goes on that third flag to the government. 0:20:43.520 --> 0:20:45.800 You know, two of the three factors then again seemed 0:20:45.840 --> 0:20:49.399 to point in the city's favor. And you know, the 0:20:49.440 --> 0:20:52.760 Supreme Court, as I say, seemed to focus more heavily 0:20:52.800 --> 0:20:55.000 on the fact that there seemed to be no selectivity 0:20:55.640 --> 0:20:58.760 or control that if you're really trying to communicate something, 0:20:58.760 --> 0:21:00.760 one would expect that you'd want to have some say 0:21:00.800 --> 0:21:04.119 so in terms of which flags go on this third flagpole. 0:21:04.720 --> 0:21:08.600 And you know, in the fifty instances and hundreds of 0:21:08.760 --> 0:21:12.280 commemorative ceremonies that have starred. Up to this point, Boston 0:21:12.400 --> 0:21:16.679 hadn't exercise any that kind of editorial control. Has the 0:21:16.720 --> 0:21:21.800 Supreme Court struggled to distinguish government speech from private speech 0:21:21.800 --> 0:21:24.720 in the past. I think it struggles mightily. There's a 0:21:24.760 --> 0:21:27.600 really basic principle here that government couldn't operate if it 0:21:27.600 --> 0:21:31.879 couldn't communicate its own points of view, positions, messages, et cetera. 0:21:32.400 --> 0:21:36.000 But determining what is and what isn't government speech when 0:21:36.040 --> 0:21:38.680 in fact the government is speaking, as opposed to regulating 0:21:38.720 --> 0:21:42.560 private speech, turns out to be a very difficult endeavor. 0:21:42.880 --> 0:21:44.960 And I think that's what you see in a case 0:21:45.000 --> 0:21:48.639 like this one. And you know, in Justice the Leado's concurrence, 0:21:48.960 --> 0:21:52.400 he tries to provide a more focused test in terms 0:21:52.440 --> 0:21:55.240 of determining when is it that the government is actually speaking, 0:21:55.640 --> 0:21:58.880 Has it developed a method, has it sort of communicated 0:21:58.920 --> 0:22:02.440 that message consistently as a deputized private parties maybe to 0:22:02.440 --> 0:22:04.639 communicate it. So there is an effort here in the 0:22:04.720 --> 0:22:08.760 concurrence to try and narrow down the issue something other 0:22:08.800 --> 0:22:12.119 than these three sort of amorphous factors. But it's just 0:22:12.200 --> 0:22:15.040 a concurrence, and the majority just applies these factors. So 0:22:15.119 --> 0:22:17.360 it's been each case on its own terms and its 0:22:17.359 --> 0:22:20.480 own facts, which naturally leads to what some might do 0:22:20.520 --> 0:22:25.359 as inconsistent results. You mentioned Justice Alito's concurrence, and he 0:22:25.440 --> 0:22:29.760 seemed to be trying to relitigate the Texas case involving 0:22:29.760 --> 0:22:33.840 the Confederate flag on license plates. Tell us more about 0:22:33.920 --> 0:22:37.280 that case and why he has a problem with it. Yeah, 0:22:37.560 --> 0:22:40.720 I think Justice Alito, you know, looking at the text, 0:22:40.880 --> 0:22:44.680 especially license plate programs, just just found it incredible that 0:22:44.840 --> 0:22:48.639 the public would attribute to the State of Texas the 0:22:48.720 --> 0:22:51.840 sort of multitude of especialty license plate that the state 0:22:52.119 --> 0:22:56.200 had allowed. And they ranged from you know, sports teams 0:22:56.240 --> 0:23:00.200 outside of Texas being displayed on these license plate to 0:23:00.640 --> 0:23:02.600 let's all go play golf, you know, just get the 0:23:02.640 --> 0:23:05.520 multitude of messages. So it just seemed to him incredible 0:23:05.880 --> 0:23:08.600 on the attribution part of it, at least, that the 0:23:08.640 --> 0:23:12.440 public would associate any for a lot of those messages 0:23:12.480 --> 0:23:15.680 with the state. So I think he was dubious there, 0:23:16.119 --> 0:23:18.399 And you know, he is, as you say, trying to 0:23:18.520 --> 0:23:22.320 relitigate the Texas license plate case, casted as an outlier 0:23:22.359 --> 0:23:24.960 in terms of the scope of government speech, because if 0:23:24.960 --> 0:23:27.800 that government speech, then he can imagine you know, lots 0:23:27.800 --> 0:23:30.920 of other things government does also being characterized that way. 0:23:31.040 --> 0:23:33.439 And the danger here is the government, under the guise 0:23:33.520 --> 0:23:38.240 of discriminating against private speech and private speakers, will cast 0:23:38.280 --> 0:23:41.920 itself in lots of cases as the speaker to try 0:23:41.960 --> 0:23:45.960 and avoid the First Amendment content neutrality requirement. So he's 0:23:46.000 --> 0:23:49.280 pushing back, you know, very hard against not just that case, 0:23:49.520 --> 0:23:52.840 but I think the doctrine of government speech and trying 0:23:52.880 --> 0:23:55.560 to cabinet in some way narrow it to its essence. 0:23:55.920 --> 0:24:00.200 In another concurrence, Justice Courser seemed to have a problem 0:24:00.200 --> 0:24:04.280 with the Lemon case. I think both he and Justice Kavanaugh, 0:24:04.320 --> 0:24:08.159 who wrote his own concurrence, are concerned at what animated 0:24:08.160 --> 0:24:11.080 this controversy, What made this a controversy in the first place, 0:24:11.240 --> 0:24:14.760 was a sort of misunderstanding about the place of religious 0:24:14.760 --> 0:24:18.600