Melissa Murray is the Frederick I. and Grace Stokes Professor of Law at NYU School of Law, where she teaches constitutional law, family law, criminal law, and reproductive rights and justice. Read more about the speaker.
Melissa Murray Transcript
- So I'm Lawrence Douglas, I teach in the Department of Law, Jurisprudence and Social Thought. And I'm one of the instructors in the progress question mark, first year seminar cluster. And this evening's event is the final in our falls Point/Counterpoint Series which has been organized by Professor Nishi Shah, Professor Alexander George, and by myself. And it's been made possible by a very generous gift from the members of the 50th reunion, class of 1970, and we'd also like to thank everyone who's helped put these events together, especially the Office of Communication Conferences and Special Events at Amherst and the provost office. The Point/Counterpoint Series, name notwithstanding, is not meant really as a forum for scoring points in an adversarial debate, rather, the idea is to provide the Amherst community with a series of open conversations about topics of importance and controversy, and hopefully to model the kind of robust critical inquiry that lies at the heart of liberal arts education. In the past, we've brought to Amherst the likes of Harvard's historian, Jill Lepore, New York Times columnist, Ross Douthat, Yale Law professor, Stephen Carter, Pulitzer Prize winning author, Elizabeth Kolbert, and this semester, as many of you know already, we've been pleased to host Anthony Appiah, Adolph Reed and Geoffrey Stone, and now tonight we're delighted and honored to have Melissa Murray on campus for our concluding conversation. Professor Murray comes to us from NYU Law School where she's the Frederick I. and Grace Stokes Professor of Law. Educated at UVA and at the Yale Law School, Professor Murray clerked for Sonia Sotomayor, then on the second circuit, and before joining the faculty at NYU, Professor Murray taught at Berkeley Law School where she also acted for time as the interim dean of the school. She's won numerous Award, she has published widely in both legal journals and newspapers, she's made dozens of prominent media appearances, and is now widely regarded as one of the nation's most preeminent constitutional scholars, particularly in matters of reproductive rights and in the legal regulation of intimate associations. We'd be delighted to have Professor Murray with us at Amherst at any time, but we're particularly lucky to have her here tonight as tomorrow as many of you know, the Supreme Court will be hearing the oral arguments in the Dobbs v. Jackson's Women's Health Organization case, at issue being the constitutionality of a Mississippi statute that bans abortions after 15 weeks except in cases of medical emergencies and fetal abnormalities. So, with that said, please join me in welcoming Professor Murray to Amherst. And let me just mention at the outset that we will probably conduct a conversation for about 45 to 50 minutes and then hopefully open the floor up to questions. So we do hope that you will have be thinking about questions as you're listening to our exchange.
- Thank you for having me, it's really a delight to be here. This is my first time at Amherst, and I can say, I can tell it's a lot better than Williams. I haven't been to Williams either, but I've heard things. So thank you for having me and it's really been a delight to be with you all today with your faculty and of course with the students who have been incredibly incisive and fantastic so thank you.
- Yeah, well, it's a pleasure having you here. And just as a preliminary question is something I kind of often like asking speakers. So we have a number of students, many of them are first years, I wonder if you can kind of recall what it was like being a first semester student at UVA, and whether your career path was clear to you at the outset, did you know you're going to be a prominent scholar of constitutional law as an undergraduate?
- Yes, definitely.
- Yeah, okay, right.
- So my undergraduate experience began in 1993, obviously it's very different from how you all are starting college, I did not wear a mask. I have to say like right now that the whole act of being without a mask feels both dangerously thrilling and illicit, and also weird, I think we've been behind mask for so long. So that was one very big difference. I mean, we did not begin college in the midst of a global public health crisis. Although we did begin college in the middle of a massive economic downturn that made the prospect of a liberal arts education seem quite dicey. And I remember I went to college intending to be a history major. And in my very small town in Florida that was sort of like, why would anyone want to study history, especially when the prospect of a job seems so uncertain at the end of it, and why didn't I want to do something more practical like economics or business. And one of the things I learned and very much appreciated from my time at UVA, and UVA is a very different university or educational setting than Amherst, but it was one that prized a liberal arts education, and more importantly, the mission of undergraduate teaching even as a research university. And I had such fantastic instructors and such incredible mentorship and learned so much about what it meant to be a citizen in an intellectual community that by the time I graduated in 1997, the economic outlook was much rosier, people were hiring history majors to do all kinds of things including business, that was quite a shock to wind up at a corporation with a history degree. But what I learned there was just so fundamental and I think it's the bedrock of what you all are learning here at Amherst and in a program like this one, how to exchange ideas, how to be thoughtful listeners to other people, even when they don't share your perspectives, how to learn from each other in a way that is both thoughtful and incisive and probing and respectful. And I think more than anything, that is so necessary right now.
- So maybe turning matters in a legal direction. I thought maybe we could talk a little bit about issues about the racist origins of some laws and about the kind of the residue of history in these laws and to kind of maybe think about, why is it of relevance that a law has its origins in let's say a racist history if for example now it is applied in a neutral fashion? I mean, should we be concerned with the background of these laws, and if you can maybe even provide examples of something in which that does play a role?
- So this I think is a question that has occupied me over the last year, in part because I think there is no law in the United States that is completely divorced from a racist history. We are a country I think that has struggled with the stain of slavery, with the taint of segregation, and with the residue of a racist past for some time, whether we want to confront that or not, I think that has been our history. And I think you would be very hard pressed to find a law in the United States or some institution in the United States that was completely divorced from those underpinnings. And so this is not to say that every law because it has these underpinnings is per se problematic or per se unprincipled in some way, but it is to say that unless you are willing to reckon with that, you actually can't get to the bottom of whether the law is worth salvaging, whether it has been cleansed or redeemed in some way. And so there really does need to be a confrontation, a reckoning with that past in order to assess in a clear eyed way what it looks like to maintain that law or to go forward with it. And so this is something that I think the Supreme Court is currently engaged with, a project with which they are currently engaged, whether they want to acknowledge it as a project or not. In the October term, 2019, the court took up a challenge to Louisiana's rule that allowed criminal convictions to proceed from non-unanimous jury verdicts. And this was very much an outlier among the states, only two states in the nation had this that allowed for the prospect of a conviction on a non-unanimous jury verdict, Louisiana and Oregon, and Oregon had repealed its policy just a year earlier in 2018. The court in this case, Ramos v. Louisiana, had to deal with some new history that had come to light in some of the amicus briefs before the court. They had already previously entertained a challenge to the non-unanimous jury rule in the 1970s in a case called Apodaca v. Oregon. In Apodaca, the court basically split in a very fractured decision, but ultimately said it was okay for states to have non-unanimous jury verdicts that would lead to conviction, states can make their own decisions about that. They were now revisiting it in 2019 and now with this additional historical evidence that made clear that the non-unanimous jury rule had its roots in the post-Civil War reconstruction era where Louisiana in an effort to enshrine in it state's constitution protections for white supremacy, and that's what they called it, it was explicitly labeled a constitution in defense of the rights of white men, so is very explicit about what it was trying to do. But what Louisiana wanted to do vis-a-vis the jury now that the jury could contain newly freed African Americans was to dilute the power on the juries of African Americans by basically making it possible to secure a conviction even if those African American jurors would not consent to the verdict. So you could have a verdict proceed in the absence of unanimity. And so the court in the Ramos case is presented with this flood of historical evidence that in fact this rule isn't some neutral rule, but rather is rooted in this effort to diminish the power of black jurors and to maintain the status of white jurors and indeed, white supremacy in the state. And the court wrestles with it, it is a six to three decision in which Justices Alito, Chief Justice Roberts, and Justice Kagan are dissenters, so an unusual sort of combination, Justice Kagan is on the more liberal wing of the court, Justice Alito is very much on the conservative wing, Chief Justice Roberts is in the middle, even though the middle is really to the right at this point. And then you had six other justices, including Justice Thomas, Justice Gorsuch, Justice Sotomayor, Justice Ginsburg, Justice Breyer, so very odd melange of different ideological perspectives coming out to say that because of the racist roots that the Apodaca court in 1973 had not considered, the court now was in a better position to understand the full history of the non-unanimous jury rule, and indeed, to reconsider it, reconsider Apodaca and overrule ultimately. What was left out of this discussion was that in the intervening period between the postbellum constitution of Louisiana and 2019, was 1978, I believe, where Louisiana takes up the question of the non-unanimous jury rule, recognizes that it has some problematic roots, but says it's going to go forward and maintain it anyway because of what is essentially a non-racial racially-neutral policy rationale. And the court doesn't really wrestle with that. What happens if you have this kind of intervening moment where race is sort of swept away? And I think from the Ramos decision, you might get the impression that race is indelible, race is indelible, and maybe it can't ever be washed away. And there was a similar kind of question in another case from that term, this one was not about race per se, but about anti-Catholic fervor. So this case was called Espinoza v. Montana Department of Revenue, and it was a question about whether states could provide assistance to secular schools, and if they did, did they also have to provide it to non-secular religious schools. And in Montana and a number of other western states, for a very long time, there have been what are known as Blaine amendments. And these amendments basically write into the state constitution a prohibition on the use of public funds for religious purposes, including religious schooling. And those Blaine amendments are rooted in anti-Catholic fervor from the early 1900s. And so in oral arguments, Justice Kavanaugh, who is a very staunch Catholic, raised this, like aren't these Blaine amendments all rooted in anti-Catholic fervor and that has to be wrestled with. What did not come up was the fact that in the 1980s, Montana and many other states, again, reiterate their commitment to secular public fund usage and not allowing public funds to be used for religious purposes, but do not link it in any way to anti-Catholic fervor, and in fact, it is done with the blessing of Catholics in the states. And so you have this kind of intervening moment, and the question is, can it supersede what has come before to sort of wipe the slate clean. And the Espinoza case is not as clear about this as the Ramos case is, but I think you get the impression from the court that racist roots or nativist roots are something that you can't ever overcome. And if that's the case, that is I think, deeply, deeply problematic for thinking about what we do as a society when we do confront the residue of our past because I think it is the case that most of our laws are going to have some kind of problematic backstory. There's all of this discussion now about the police force and being linked to the slave patrols of the antebellum period. The second amendment according to Professor Carol Anderson at Emory University has its roots not in the enfranchising of citizens with the right to bear arms, but rather with emboldening militias to put down slave rebellions. So there's just so much in our country that is inextricably intertwined with the residue of slavery and race that unless we can figure out what it means to scrub that clean, we're going to have few laws that aren't problematic. So that's a very long winded way to say that.
- [Lawrence] No, its a, oh, did you want to follow up?
- Yeah, I guess I'm still not, maybe you could just say a bit more about, like it doesn't seem like conceptually the roots of a law would be indelible, would always carry them with it. Why did the court decide in these two cases that residue was still there and therefore made the laws unconstitutional?
- So I think with regard to Espinoza, the case that is about religious freedom, one way to explain that decision is less about racial cleansing or religious cleansing and more about the expansion of free exercise rights, right? So there has been I think a quite consistent project within the court and within the conservative legal movement to expand the scope of free exercise rights. There's a case called Trinity Lutheran v. Comer from I think around 2017. This was the case about whether a state program that allowed for the resurfacing of playgrounds could be extended to churches in addition to other secular sites. And the court said, yes, if you make it available to secular sites, you have to make it available to religious sites. It's not funding religion, its funding playgrounds. And Justice Breyer writes this, like no, it's just about the playground. Misses the point that in all of these debates, money is fungible. So if you're taking money and it's not being used for religion, that's fine, but the fact that the money is going to the playground means that the church has money to do something else with regard to religion because some other aspect of its operation is being subsidized by the state. And so it's not quite as clean I think as the Court would have liked. Espinoza is the follow on from Trinity Lutheran and now sort of expanding the idea, if the state makes certain funds available for secular schooling, then it has to make that available for religious schooling. And now there is a case before the court this term, it's going to be heard in the second week of the December sitting called Carson v. Makin. And it's about whether Maine which basically has a number of programs whereby its public school students actually get state subsidies to attend private schools because there are so few public schools in Maine given how rural parts of the state are. Whether those subsidies can also be extended to sectarian institutions or whether it has to be just for institutions that are non-religious. And that's going to extend that further. So I think one way to sort of understand what happened in Espinoza is about the expansion of religious freedom and the recognition of religious rights. Ramos I think is just a lot harder. And then I think what explains Ramos is the interest in remedying a racial injustice, and the racial injustice here was obvious and indelible, at least to the court and plain on the face of the law. How the Apodaca court failed to appreciate it is a mystery because it's out in public, anyone can find it. And it was known in the 1970s, it was just never presented to the court and never discussed. But it seemed like in much the same way, the court in the travel ban case wanted to use that moment as an opportunity to repudiate Korematsu v. United States, the case that upheld the internment of the Nisei and another Japanese Americans, that there is a moment or an interest in racial reckoning in this country, and it may be a deep interest, it may be more shallow, it may be superficial, who knows, but I think that's what explains part of the way of Ramos. It is worth noting that in the next term, in October term 2020, there is another case called Edwards v. Vannoy that basically dealt with the fallout from Ramos, like once you have these non-unanimous jury convictions, what other procedural remedies and who can challenge their convictions, And the court decided that in a much more narrow way to basically limit the force of any remedial efforts for those who had previously been convicted by non-unanimous juries.
- This is just a small follow up of the Ramos. So wasn't the case, was it really the case that the history was so familiar because I thought it was the case that it might have been the petitioner himself who did a lot of the research that about the racist origins of the non-unanimous jury part of the Louisiana constitution.
- You're definitely right. I said it was obvious, I did not say it was familiar.
- Okay, okay, right, right.
- Two very different things. The fact that the petitioner who was imprisoned at the time, he was doing this research could find it despite the impediments of being incarcerated suggest that other people with the amenities available in universities or in law firms or whatnot could find it too, no one went looking for it, but was hiding in plain sight. Louisiana wasn't hiding the archives of its constitutional convention, it was there, someone just had to go and look for it. And it was available when Apodaca was being litigated in the 1970s. And so this wasn't some history that had to be unearthed, it was just there waiting to be found. So not familiar, but obvious non the less.
- And again, maybe we don't want to spend too much time on this one thing, but I wonder how much the racist past really played such a huge role in the decision by the court. That is, as you yourself said, it seemed like the Apodaca decision was such an outlier in certain respects that it sort of made life a little bit easier for the Supreme Court to say, A, this practice of having non-unanimous jury verdicts is a complete outlier, it's not permitted in the federal context, it rarely can happen in a state context, and plus, we got this kind of added on benefit that if you look at the history, the history looks pretty awful. So I just wonder if the history was just kind of an add on rather than anything that was really well that.
- Well, sure, it was an add on, but it was a necessary add on, right? Because they are overruling Apodaca, right? And so it's not enough to overrule something because it is an outlier, lots of things are outliers, and they nonetheless under stare decisis may require deference to some degree. And so there are a series of factors that the court considers when deciding to overrule one of its prior precedents and these are laid out in a number of cases, one of which is Planned Parenthood v. Casey, a precedent not just on abortion but a precedent on precedent. And of these factors that Casey outlines that warrant a court taking the extraordinary step of overruling a past precedent is the idea that there are new facts or new factual circumstances that require reconsideration. And so, again, this obvious history that was unfamiliar to everyone becomes I think part of that basis. It helps that Apodaca is an outlier, And we've seen the Roberts Court overrule past precedents on the grounds that it has somehow become out of step or misaligned with other jurisprudential doctrines, but what really tips the balance in favor in the Ramos case is I think this question of race and the prospect of redressing a racial harm. And the justices talk about this and talk about the impact of that history on the African American community in Louisiana and African American defendants in particular.
- And since you raised this question about stare decisis, I wonder if we could just talk a little bit about that and maybe just we can explain to the students what you mean by stare decisis and the role that might play in the Dobbs case that we're going to hear the oral arguments tomorrow.
- In that article you had us read, you had this really striking moment where you said sort of somewhat maybe purposely paradoxically that stare decisis is both the reason that Roe can't be overturned.
- And why it must.
- And why it must.
- Yeah.
- Yeah.
- No, that was a good line, it was a great line.
- It was.
- So stare decisis is Latin for let the decision stand or let that which is settled not be disturbed. And the idea is basically that the court, though it may have a change in composition is bound by its past decisions. This is sort of a bedrock principle of the Anglo-American legal tradition, the idea that we don't make sweeping shifts in jurisprudence, that we defer to that which has been decided before, and if there are changes to be made, they're incremental, they're based on distinctions in terms of facts as opposed to sweeping shifts in how we understand this particular principle of law. Not everyone on the court believes that stare decisis should command, especially if it involves a decision that that particular member believes is wrong, wrongly decided. And so Justice Thomas in October term 2019, this is a very memorable term for the court, wrote in a concurrence in an opinion called Gamble v. United States, this is a case about whether or not double jeopardy prohibited a state charge and a federal charge in this criminal case. But Justice Thomas took this opportunity to sort of opine on in his view what stare decisis required. And he said, we are federal courts in an age of written constitutions and written statutes and that means we aren't like courts of the common law tradition in the same way that the Anglo-American tradition would have us view it. We are bound by text and that means because the constitution takes priority over any kind of tax and indeed over any decision that we might make, we have a duty as federal courts where we are presented with a decision that is "egregiously wrong" or "demonstrably erroneous", our duty is not to follow it, right? And not a surprise, what decisions he thinks are egregiously wrong or demonstrably erroneous, he said many times that the entire line of right to privacy cases from Griswold v. Connecticut which allowed for contraceptive use among married couples to 1973's Roe v. Wade which allows a pregnant person to terminate a pregnancy, all the way down to Lawrence v. Texas which decriminalize the same sex sodomy, to Obergefell v. Hodges which legalizes gay marriage. All of those are egregiously wrong and demonstrably erroneous because they are untethered from constitutional text, those protections are not explicitly enumerated in the constitution. Should be noted, lots of things are not explicitly enumerated in the constitution, including executive privilege which Justice Thomas does like a lot. So, he's sort of laid out this scenario where if a decision is demonstrably erroneous, we don't have to follow it, right? So that's his view of it. In other precedents, like Casey, for example, there's this sort of set of factors that you have to think about and really think seriously about before you can overrule a past precedent, has it proven to be unworkable over time? Are there new factual circumstances that make you think about the issue in a different way? Is it a situation where it's just completely out of line with other precedents on a similar subject? And when only when you sort of satisfied yourself that there's no other way that you have to overrule it, then you're able to go forward and do that, but that's under that Casey calculus. So, this adherence to stare decisis is supposed to provide a kind of predictability on which the public can rely, like this idea that if something is enshrined in a prior precedent and protected, it will continue to be protected and you can count on it going forward, and that your rights don't change because the court changes, right? And that's sort of been the bedrock principle and the court has only overruled itself explicitly in a sort of handful of times, many times in order to redress a past racial injustice like in Brown v. Board of Education, for example, or Korematsu. More often what happens is there sort of a sub rosa, overruling where you don't actually have a formal declaration, like this decision is wrong and is now overruled, but rather, you chip away at it incrementally, and that's actually what's been happening to Roe v. Wade certainly since 1992 forward. Sort of a subtle chipping away of the doctrine, limiting it, trimming it back, allowing the states more authority to regulate abortion, limiting the opportunities for individuals to seek abortions. And so it's never been an explicit overruling, but I think it has been a functional limiting in curbing of abortion rights over time. And this goes to your point, the question of Roe v. Wade is I think the central question of the conservative legal movement, it is the animating principle that has spurred it on over the last 40 years and that is driven it forward. And that is largely because of stare decisis, stare decisis, this whole idea of adherence to precedent means that you can't simply overrule Roe because you now have a conservative court. But the fact that Roe survives and is reiterated and reaffirmed in these subsequent decisions like Casey, like Gonzales v. Carhart, like June Medical Services means that even if it is chipped away at, it hasn't been formally overruled and it still stands as a precedent, which means there is still a right to an abortion. And that's the problem, that's the rub. And so when I say, I mean, it's almost like this ouroboros, the sort of mythical creature that eats its own tail, like it's a continuous circle where the impulse is to get rid of it, but you can't because it must stand, and because it must stand, you must get rid of it, right?
- Yeah, so I wonder if by the standards that are established in Casey for a reason to overturn a precedent, that's a new factual circumstances, I wonder if there are maybe a couple of new things that need to be considered with regards to Roe. And maybe one of them is I think this is something that appeared in the papers maybe two weeks ago about a birth in Alabama in which I guess a premature baby of 19 weeks, it was in 19 or 21 weeks, survived. And which may be cast some questions about the factual predicate of having viability as a standard. And then I perhaps maybe the other one is something that some of you were here this morning in the conversation, knowing that Justice Thomas has been concerned about using the abortion right for trait selection. And I wonder if you could maybe talk about both of those things.
- Sure. So, to be clear, I am not a physician, I have never gone to medical school, I've never taken the MCAT, I hate math, that's why I went to law school. It is my understanding based on physicians with whom I have consulted about this that while it is true that there are occasionally these outliers, for the most part, fetuses that are born and then survive outside of the womb at early periods in pregnancy, 19 weeks, are really outliers, and they require considerable medical intervention in order to survive and they have really difficult circumstances ahead of them on like lots of issues going forward that will require continued medical intervention. So, this idea that you will have a miracle baby born at 10 weeks that will survive in the way that you expect a child that is born at full gestation at 40 weeks I think is something of a misnomer and I think the medical community would attest to that. Viability has long been the marker in the court's abortion jurisprudence, and the idea is as articulated in Roe and reiterated in Casey, that viability, this point in pregnancy where the fetus can exist and live independently of the womb, is a period that's marked at about 23 or 24 weeks of pregnancy so sort of look somewhere a little bit ahead of the middle of pregnancy. And during up until viability, the state cannot ban abortion, can do a lot to restrict it, it can require you to consult with a physician, it can require you to have a waiting period, it require you to go back three different times before you actually get an abortion, but it can't ban it outright, right? And that's been a rule since 1973. And so one of the questions in overruling Roe or even tinkering with Roe to remove viability as a salient marker is whether the facts have changed, like medical technology has changed, to warrant a change in the jurisprudence. And I think the pro-life movement, the anti-choice movement says that, yes, that has changed, medical technology has advanced such that viability isn't a salient marker anymore. I think that's incredibly contested and so that can be contested. I think what is less contestable and perhaps more interesting is over the last 10 years, we as a society have become more interested in sort of interrogating and maybe examining the racial injustices in our midst, right? And the events of the summer of 2020 I think are exemplary of this. The protests that took place, the interest in a kind of racial reckoning, the debate over reparations, the 1619 project, there's tremendous interest in this question of remedying past injustices and perhaps getting to some kind of healing on the question of race. And that enters the conversation at an interesting point in the debate over abortion. And I think one of the unsung geniuses of the Supreme Court who really does not get the credit I think he deserves for really being an intellectual midwife, no pun intended, of conservative legal movement is Clarence Thomas. And Justice Thomas is one of the court's most prolific and incisive interlocutors of questions of race, he frequently raises questions of race, even in cases where race is not salient at all. So Kelo v. New London, a case about redevelopment and property rights. The argument in favor of the town that wants to redevelop is that this redevelopment is going to be great for blighted communities in New London. Justice Thomas steps and say, you know who it's not going to be good for, black people in New London, these are the marginalized communities that always get shut out of redevelopment. And it actually gets a lot of legs and that becomes the new rejoinder to economic redevelopment. On guns in McDonald v. City of Chicago. The gun control argument is that communities of color, marginalized communities are the ones that are most scarred by gun violence. Enter Justice Thomas to talk about this history of postbellum racial violence in which black people who are unarmed because the state will not let them bear arms are subjected to incredible racial violence at the hands of the Klu Klux Klan, the Knights of the White Camelias, on and on and on. He invokes Emmett Till, the Chicago boy whose murder and lynching set off the civil rights movement of the 1950s. And again, he's sort of injecting rates, like you gun control advocates talk about how this is good for black communities, let me show you why the Second Amendment is actually good for black communities. So, he's incredibly prolific on this and incredibly effective, I think, and he's now brought the same kind of logic, I think, to the abortion movement by focusing on these abortion restrictions that prohibit abortion if it is undertaken for purposes of sex selection, race selection, or because of the diagnosis of a fetal anomaly. And his argument essentially is that these laws function as anti-discrimination measures for the fetus. And because they function as anti-discrimination measures for the fetus, they're really outside of the scope of Roe and Casey which were focused on laws that were about maternal health or promoting the potentiality of life, but not about this question of racial discrimination. So they're outside of these cases, and in the short term, they should be defended. But there's also I think a long term strategy built into this, not just a short term defense of trade selection laws, but this longer term strategy that is about re-characterizing and reframing abortion not as an issue of gender autonomy or gender justice, but rather as a question of racial injustice. And he does this by grafting the history of abortion to the history of the eugenics movement and the birth control movement and arguing that just like Margaret Sanger in Planned Parenthood sighted, birth control clinics in black community for the eugenic purpose of limiting black reproduction, that is a contested historical narrative, but given that, you can see the same kind of potential with abortion, abortion can become a tool of eugenics and can be used to deracinate entire communities. And for that reason, the state should be authorized outside of Roe and Casey to take steps to prevent that from happening. And so it's a reframing I think of abortion so that it is a tool of genocide and not a tool of women's liberation. And again, I think it's an incredibly canny, sophisticated and subtle move.
- And in certain ways, did you want to? I was just going to say it seems persuasive on some level.
- Yes.
- And I think this is maybe a question that I think you had asked earlier today about, do you remember what you had asked? Yeah, but whether it's an immoral thing. And maybe there is a, I mean, I think many of us would feel kind of queasy about laws or about using abortion as a way of sex selection and might feel supportive of laws that prohibit that.
- Yeah, again, I think it raises a number of real ethical quandaries. It is worth noting that on the ground, in the United States, abortion for purposes of sex selection rarely happens and abortion because of race selection is more likely to happen in situations where there interracial relationships where parents or extended family members do not approve of the relationship and then put a lot of pressure on the individual to terminate in those conditions. This is not what Justice Thomas imagines, like he's sort of focused on the fact that there is a disproportionate incidence of abortion among African American women and sort of links this to the idea that like that's the evidence that this can be used for eugenic or deracinatory purposes. Again, I'm not sure that this is what happens on the ground, I do think in the short term, what happens is that women of color, Asian women, because sex selection is often associated with Asian cultures, and African American women are more strenuously surveilled and policed during their pregnancies and asked to explain why they are seeking an abortion because of these roles. So there's a way in which, I'm not sure it actually cashes out to stopping abortions because of sex selection or race selection 'cause I'm not sure how big of a problem that is. I do think it has this ancillary effect of exposing certain populations to more strenuous surveillance during pregnancy. I think where the ethical quandary is perhaps most pronounced and profound is in the context of disability because I think that's right, right? I think there are individuals who when faced with the prospect of a genetic abnormality in the fetus do consider terminating because that is a difficult life ahead for the child perhaps, maybe it's a difficult life for the family, maybe it's something the family can't take on. And I think that is a much harder question in large part because we are a society where we don't necessarily have a robust social safety net for families, especially families who are living with individuals with disabilities, right? And I told the story in your class today, there's this really sort of visceral anecdote about a woman who despite prenatal testing never learns that she has a fetus with Down syndrome and she gives, birth baby has Down syndrome. As soon as she is able to, like literally seven weeks after she's delivered this child, she's trying to get pregnant again. Why? Because she knows when she and her husband are gone, there has to be someone who's able to take care of this family member with Down syndrome and so she wants a sibling who will be there to be able to take care of the child when she and her husband are no longer there. I mean, having a baby in order to provide a caretaker because we don't actually have a system of support for that. And so I think it's a real ethical quandary like, and I think it's meant to be an ethical quandary, these are laws that I think are meant purposely to divide the progressive community, like is it feminist to oppose a law that would prohibit the termination of a pregnancy because of sex selection? What could be more feminist than prohibiting that? Is it, are you seeking racial justice to oppose a law that would prevent abortion from being used in a situation where you're terminating because of the race of the child to be born? Harder to say. I mean, again, if you're someone who supports the disabilities community, can you say that this is wrong? I mean, and I think that's exactly the kind of quandary it is designed to provoke, and indeed, to divide these communities and these constituencies from the larger pro-choice community.
- Okay, follow up. So I thought maybe earlier in the morning session, you were sort of suggesting with moral issues like this which these might be very morally problematic decisions. Even if they are, there's this separate question whether the state should be, right, adjudicating these issues, taking sides on these Beck's moral questions. And I thought you're sort of implying that maybe it shouldn't be?
- Well, no, I'm fully there. So I think you presented your question in a slightly different way tonight than you did earlier in the day. So I took your question earlier in the day to be about broadly, like to what extent can the state legislate morality. To which I would say, the court has been clear about this, I think the constitution is clear about this, that there are limits to what the state can do, right? There are limits to what the federal government can do, there are limits to what the state government can do, and that there are some area of repose, some zone of seclusion, that individuals retained for themselves, right? This is I think incumbent in the fifth amendment's protections against self incrimination, the idea that the state can't force you to tell on yourself, I think it's incumbent in the third amendment's protection against the quartering of soldiers in your home, the state can't force you to take its personnel into your home. And in the same way, there's some space for you to make the choices that you need, to make choices that are so integral to the formation of the self and personhood that according to Justice Kennedy, they could not be made appropriately if made under the compulsion of the state. And so yes, you may find this to be a moral quandary, the question is, can the seat tells you it's a moral quandary? And I think that is a harder question. So, this operates on a number of levels, like, is it meant to be a moral quandary? Of course it is. Is that moral quandary meant to divide a broad coalition of progressive constituencies? Undoubtedly. Should it? I don't know that the state should be in the business of legislating a particular moral outlook. I mean, I think it's safe to say, if you are opposed to abortion, you should not have one. I mean, and I think there are a lot of people who call themselves pro-choice who would not undertake an abortion, but they believe firmly that this is not a decision in which the state should intervene. And I'm kind of there with that. And I think it's hard to divorce this from the social and cultural construction of gender. And so just, again, this is a roomful of college freshmen, maybe you haven't thought about what it means to be a parent, but I can tell you in no uncertain terms, the most fundamental choice I ever made as an adult was the decision to become a mother. And I don't say to become a parent, I mean, to become a mother because I think there's something socially and culturally distinct about motherhood as opposed to parenthood at large, just a completely different set of responsibilities and expectations. And motherhood has enriched my life in ways both profound and banal, it is also narrowed my ambitions, limited my choices in a lot of ways. And if that were forced upon me, if I were compelled to take that on as opposed to when I took it on willingly, wholeheartedly and full throatedly, I think I would be a very different person. And that's what I think is at stake tomorrow when the court takes this up, like that is a decision that you have to make for yourself, and not everyone is in a position to make the decision I made. And what I feel about abortion doesn't matter, what I feel about whether the state should tell me what to feel about abortion, that to me is the issue.
- Maybe also just following up on that, one thing you said this morning that I found very intriguing and is I believe you said that reproductive rights and voting rights are inextricably linked. And I found that formulation really interesting, I wonder if you could you unpack that a little bit for us, tell us a little bit more what you mean by that.
- Sure. I think we are conditioned to think about these different questions in silos, like there is voting rights, there's environmental justice, there is reproductive rights and justice, and they're all sort of separate and distinguishable. Are they though, right? There is a way in which there is a straight line that runs between restrictive abortion laws, deregulatory laws that make it harder to protect the environment, laws that allow for redlining and limiting the economic growth of particular neighborhoods, laws that allow individuals to carry weapons openly in public, and changes in what we allow in terms of voting, like who we allow to vote, what the ramifications of voting are, how our voting districts are composed, all of that is linked together, whether we see the thread that links them or not. You don't get a law like SBA that prohibits abortion at just six weeks of pregnancy.
- And this is the Texas law.
- This is the Texas law that the court heard on November 1 and still has not issued a decision on. Point of order, I know that college students do all nighters in order to get things done, maybe the court could too. Moving on, but you don't get a law like that unless you have first limited the ability of those who would oppose the law from voting to have a say on it, you don't get a law like that unless you have reconstructed the boundaries of political communities so that political power is consolidated in certain ways. And so there's a way in which redistricting, the court's decision in 2018 about political gerrymandering, partisan gerrymandering, all of this is linked together. And you don't get these kinds of laws that feel regressive, that are regressive, unless you first change the character of the political community by limiting who may vote and how their votes may be counted. And so this is all inextricably intertwined. And when students ask me, what can I do, like how do I be a progressive lawyer once I graduate from law school? I don't know if it's going to New York and working for the NAACP Legal Defense Fund, I think that is one way to be a progressive lawyer. Could it be more impactful to go to Aiken, South Carolina, where you're from and run for the school board? Possibly. Could it be more impactful to go back to Ohio and run for county commissioner in your hometown? Possibly. I mean, our imaginations are sort of geared toward college and then you go to some metropolis and you do something exciting and fantastic in that metropolis. Maybe it's better to be like Clark Kent before he went to Metropolis and you go back to Smallville and you figure out how to make Smallville better.
- Yeah, and also just, I mean, it's interesting, a couple of the pathologies that you just identified in our American democracy, things like gerrymandering, the winnowing of people who can vote, I mean, the Supreme Court has played a very powerful role in contributing to these pathologies. I mean, in the Rucho v. Common Cause, in the Shelby County decision. And one thing we've also seen is the way in which, I think just most recently we've seen a poll that suggested that the perception of the legitimacy of the court has eroded pretty dramatically. So I mean, in basically contribute to these pathologies, do you see the court really kind of in a crisis for itself or creating a crisis for itself?
- Yes, I think there's no other, I think, full disclosure, super dystopian perspective, I think we are in the middle of a full throated constitutional crisis. I think the next two years are absolutely pivotal in terms of democracy. I mean, we literally had people staging an insurrection on January 6th. I mean, I've never seen anything like that in my life. My parents were immigrants and that's what they told me happened in other countries, I'd never seen anything like that in this country in my entire life. So remarkable, so breathtaking, to watch that unfold on January 6th, and then to go the next day to teach constitutional law. Yes, this is a crisis of which the court has played an important role. Shelby County dismantled key provisions of the Voting Rights Act. Ruth Bader Ginsburg, I think she got her Notorious RBG moniker by noting that throwing out the pre-clearance provisions of the Voting Rights Act, those are the provisions that allowed the Department of Justice to act prospectively. So whenever a state wanted to change its voting laws, they first had to go to the Department of Justice and say, okay, this is not going to limit minority participation in elections and they have to explain themselves. And so it was prospective. The court in a decision authored by the Chief Justice says that violates this idea of equal sovereignty, you have states going hat in hand to the federal government to bed as applicants for the authority to do something that they're allowed to do, election law. Justice Ginsburg disagrees, said, we understand that you think that there has been racial progress, more minorities are voting than ever, but that's because pre-clearance works and throwing out pre-clearance is like going out in a rainstorm and tossing your umbrella because you're not getting wet. I think like what we saw over the course of the last election, the changes made in 24 hour voting, the law in Georgia that makes it a crime to give someone water when they are standing in line to vote. Those would never have survived pre-clearance had the pre-clearance regime been in place, it is not. What is left of the Voting Rights Act is section two which instead of being prospective relief, is retrospective relief, which allows you to litigate changes to the voting laws that you believe have a disparate impact on particular communities. And the court just last term kind of hobbled that provision as well. And in hobbling that provision, really credited this idea that states have an obligation, indeed a duty to prevent electoral fraud. I mean, basically tacitly endorsing the idea that there is massive election fraud and that elections that are contested are somehow illegitimate because of the prospect of fraud, essentially reiterating the big lie that led to the insurrection on January 6th. No one talked about that in the court's decision in Brnovich. Those were the Arizona voting cases that Justice Alito basically credited the big lie and gave credence to this idea that we are awash in voting fraud. The evidence of voting fraud or electoral fraud is glancingly rare. All economists, statisticians, everyone suggests that this is not a widespread problem, elections operate relatively well and people who need to vote who are eligible to vote do and they're just like, it's not dead people voting, it's not people who are undocumented voting, like they run the way they're supposed to do. But instead, we've fed this lie and the court has now fed this lie that there's some deep seated problem. And what that does I think is created the notion that we are a democracy in crisis, and we likely are, but it is a crisis that I think the different sides see quite differently. Like for the Justice Alito, I think the crisis is the prospect of all of this foul play in election that we're told doesn't really exist, and for the other side, it's the prospect of not being able to vote, like having the opportunities to exercise the franchise so circumscribed that it's essentially a nullity for you in much the same way the abortion right is so circumscribed that is essentially a nullity for most people throughout the country.
- I want to open this up to general questions so already start thinking about your questions. I'll ask just one more if that's okay, which is, you're talking about a constitutional crisis and the way in which the court itself is contributing to that crisis. I wonder if you have any view about the constitution itself being the crisis, that is that there actually defects in our constitution which have now for all its greatness have emerged over time. And I wonder if there's, if you could like push a button and change, let's say, I don't know, three parts of the constitution, what would those be?
- So I guess about a year and a half ago, I was on this project that the National constitution Center commissioned and there were three teams, the progressive team, the libertarian team and the conservative team. I was on the conservative team, obviously. Not obvious. I was on the progressive team. And we were charged with drafting a new constitution. And what was interesting about it, my teammates and I, we actually found that we thought the bones of the constitution were pretty good, right? I mean, it was like a nice pre-war apartment, like it needed some renovation, maybe some amenities needed to be added, but the essential structure was good. And our point was, the constitution is meant to divide authority so that no particular branch or no particular political entity has too much power, right? And that seems right, that seems right to us. And it works best when it facilitates and enables democratic participation, right? So the features that we changed were ones that we thought would enhance the prospect of democratic participation. So, we introduced a constitutional amendment to deal with partisan gerrymandering and racial gerrymandering. So to actually firm up what the court had done in prior decisions and to allow for a constitutional amendment to deal with partisan gerrymandering specifically. We got rid of the Electoral College and switch to a popular vote for all of the reasons that those who criticize the Electoral College as being unrepresentative, we think that's basically right so we did that. What else did we do? Oh, we made DC and Puerto Rico states in order to enfranchise those individuals. So those were three key things we made. We didn't do that much in terms of adding rights because our view was if the democratic process worked, then individuals could then go to the polls and be able to sort of agitate for those rights and tells someone. And we think that is basically right. So we were criticized for being too tentative, like some people wanted us to blow it all up, but again, you can be progressive without blowing the whole thing up. So we were like, maybe there's a radical team who needs to be brought on board for the next iteration of this, but as the progressive team, we felt like the document itself has good bones. Is it flawed? Surely, it was written in 1787. But the bones are there, we can add to this, we can add more flesh to some of this, and we can make it easier for the people themselves to add the flesh on and so that's where we ended up.
- You didn't tinker with the Second Amendment?
- I think we did, I think we did tinker with the Second Amendment to allow for gun control by the states.
- What about Article Five?
- The amendment process?
- Yes.
- So I think we did do something. I mean, this is all, like the pandemic happened in the middle of this so this is all somewhere between ordering DoorDash and cleaning my groceries as we were doing this. So what did we do with it? I think we did make it easier, like less than a 3/5 majority of the states in order to get something passed.
- So questions from you all.
- We've got a mic.
- The mic's right over here
- But we can also take it off.
- We can hand the mic if you're kind of trapped in the middle, we can pass the mic into you. Are you trapped in the middle in like the, yeah, very trapped in the middle.
- But it's being recorded.
- I think yeah, for the purpose of the recording, I think it'd be helpful to.
- [Jaden] Hi again, I guess my question, so I read your article and I like had a moment like reading it where I was like, oh my God, I'm not the biggest fan of legal writing. And then I think that I thought like, no offense, I think it was a great article, but I wonder if do you think that like there are barriers for like lay people, I think to like digest and understand law, and how do you feel like that is affecting the way in which we can act basically to ensure that laws are just and that we are doing what we can to make sure that they're affecting everyone equally.
- So Jaden, I will just say that you are not the first person to find legal writing inscrutable and impenetrable. My husband who actually did go to law school, we met at law school, I don't think he's read anything that I've written since I got tenure, he's like, you're good now, you've got a job for life, I don't need to go back here and read any of this. So I think that is a problem of legal writing of the law review format. I mean, the only way we can actually get people to read our work outside of other academics is to get invited to colleges and make you read it, which is what I've done. And so I sort of divide my career into two parts, there was the part at Berkeley and now there's this sort of second part at NYU. And in the second part, I think I had been very conscious about making sure my work has a public facing dimension. I think the earlier part of my time at Berkeley was about getting tenure and speaking to my colleagues primarily, speaking within the academy. Now, I think it is absolutely urgent and important to not just be having an insular conversation within the academy, but to be facing outward. And so, I wrote the article that I gave you, I also wrote like three different op eds that are sort of rooted in parts of that article that have been published for lay audiences. I have done a podcast, I have a podcast, "Strict Scrutiny", a podcast about the Supreme Court and the legal culture that surrounds it, please feel free to follow it where we talk about this. And the goal is to speak to law students, to speak to college students, people who are interested in the law. And we're very clear about how we talk about this, like we will get into the really arcane stuff, but we have what's called the Aunt Johnny Pearl test, Aunt Johnny Pearl is my husband's aunt and she's from Mississippi, and our idea is if Aunt Johnny Pearl couldn't understand this, we have to figure out a way so she could. And so there's a lot of making analogies to pop culture, like Chief Justice Roberts is the Taylor Swift of the court, he's like calling out people, his opinions, all kinds of things. Trying to make it digestible and relatable to audiences who maybe don't have legal training or some that have more limited legal training 'cause they're in law school or they're in college. And so that's been a big part of the second half, I think, maybe it's only a third of my career, who knows. But this second part has really been focused on being public facing because there's no point in doing all of this work if you can't share it and people can't understand what the ideas mean and why they're important if they are important. And I think this last piece, I do think this is important. I mean, I really think that this is what's happening with the court, what's going to happen with abortion, I don't think they're going to overrule Roe v. Wade in this case, Dobbs, I think there's going to be another challenge and I think it's going to be to a trait selection law. And I think the logic of overruling Roe is going to come on the backs of black and brown women and it's going to be about race.
- Questions? Don't feel shy, yes. And can we get the mic.
- [Student] I don't know how to do this.
- Don't throw it.
- [Student] Thank you. So you touched upon this and I was wondering if we could go a little bit deeper. So it seems that we make a lot of our reproductive decisions against a background of economic and like legal conditions. So you brought up a really powerful anecdote regarding the mother who decided to have a second child after her first child was diagnosed with Down syndrome. And I think a common critique of like liberal neutrality is that taking like a non-interventionist stance, when you have these background of conditions, is either like an implicit or like accidental endorsement of like the status quo or like the current moral positions that we had. So I wonder what you would say to I guess somebody who has the idea that, well, it's important for a true kind of feminist or progressive position must take some type of explicit stance, because if not, this stance of neutrality allows for cultural conventions or perhaps personal decisions that lead to I guess or oppression or domination of certain identities.
- So let me make sure I understand the question. So it's important for feminists or anyone within a particular ideological set of commitments to take a stance acknowledging the background conditions under which these "choices" are made and recognizing that in some cases, these are not choices at all because they are quite constrained and if we don't sort of interrogate those background defaults against which the choices are made, we're basically ratifying a kind of state, like we're all in the same boat making the same choices when in fact, that's not true. Is that right?
- [Student] Yeah, most definitely. And you touched upon the fact that we have like diverse cultural conditions and not maybe taking one position could be like it's detrimental to another. Yeah, but I guess the idea would be that if you stay neutral, in some ways you're endorsing, right, some types of exploitation.
- Also I mean, I guess one question is, what is neutrality for your purpose, because neutrality for a long time is sort of been a status quo that isn't actually neutral, it's actually shaped by one person's or one set of people's experiences and expectations. We're just calling it neutral because that's been the default, but it's actually not the default for everyone, it's just the default for those people and it's so widespread that we treat it as being the baseline, but it's not the baseline, it's their baseline, right? So do we actually have neutrality to start with? Like whatever we think is neutral is really just only neutral because it's somebody's perspective that we've accepted as neutral, right? What if we flipped it? Like, and just like here's a great example, most studies of urban transportation are actually based on men, right? Like bus routes and how they are cited and routed throughout the city are based on men's work patterns of needing to go from home to a city center, right? Imagine how different it would look if our urban planners organized their planning around how women and children actually use public transportation to recognize that women often do not just go from home to work, but rather go from home to daycare to the store to pick up things. That there are all of these sort of smaller intermittent steps that are not accounted for in the baseline for how we deal with and plan transportation in a city center, right? That's what I mean, the neutral baseline is a man's baseline. What if we were to flip it? And I think just the whole question of interrogating what undergirds someone's exercise of choice is that prospect of flipping the baseline so that you can see what someone else is experiencing, right? In my view and in my experience, like it is one thing for me to exercise my choice to bring a pregnancy to term, I have unparalleled economic advantages. Like I have a husband, I have economic security, a health insurance, right? I can't then sort of say like, if I can make this decision and I can deal with it, then that's what you need to do as well. And I think sort of understanding that not everyone is similarly situated is the first step, like the flipping of what the neutral baseline is to accommodate, and indeed, to see the experience of someone else, I think is a big part of creating a more just society, understanding how these things work, and why they are different for different people. I mean, I think one of the biggest critiques of the reproductive rights movement over time is that it was a movement focus largely on contraception and abortion because that's what a lot of white women were concerned with, how to avoid motherhood. There's an entirely separate debate going on around reproductive rights that's not about avoiding motherhood, but actually how to take it on and be able to raise your children in conditions of safety and security because you have economic security, because you have a home, because you have childcare, because you have paid leave, right? And those are a set of issues that are as important and integral to reproductive life as the availability of abortion and contraception and they were largely left out of the conversation for the first 35 years, right, because we did not flip.
- Question. Yeah, Jacob.
- [Jacob] Thank you. I was just wondering what your view was on the idea that conservative legal actors have these really catchy, almost attractive forms of constitutional interpretation that are easy to buy into, like original public meaning or Neil Gorsuch's style textualism. Or and then liberal justices have this tendency, right, that there isn't a counter to that, there might be purposivism or living constitutionalism, which seems somewhat defunct, right? But do liberal justices need to think of something that could contend with originalism and textualism or can they just use it for their own purposes I suppose?
- So, hats off to the conservative legal movement 'cause I think they've been very successful and adept at marketing their movement, right? I mean, like you know what originalism is, right? Like, let's go back to what the constitution meant in 1787 and let's do that. And it's sort of clean, it limits the idea of activist judges 'cause you're bound by text and you're tethered to this idea. Like I think there are lots of things that can be used to criticize the prospect of originalism including the fact that when the constitution was originally framed, there was a democratic deficit, no matter, says the originalist, we then just move forward to the Reconstruction amendments, being part of originalism because you can and then sort of add on and you can take away as long as it's textual and it's sort of framed within the text. I think it's a very clean way to think about it and they've been incredibly successful in doing it. I think I was on MSNBC this week and said something basically to the effect that, the constitution when it was drafted was understood that it could not be exhaustive, how could it be? Like they knew they weren't writing a legal code, they were sort of painting with broad brushstrokes for the purpose of principles can later be extrapolated. And so not everything that could be protected is included, some things are implicit, like executive privilege, for example. And I got this kind of sharp email from a gentleman in Huntsville, Alabama. And so then I wrote him back, like, here's originalism. And he was like, you really want to say that like this flagrantly unconstitutional non-originalist perspective is right? And I'm like, and so we had this whole discussion. And so what struck me about the discussion is that he is some guy in Huntsville, Alabama, by his own admission, he's not a lawyer, he's ever been trained as a lawyer, but he knows what originalism is, right? He knows what textualism is. I don't know that anyone on the liberal wing of the court has a strategy for bringing constitutional interpretation to the masses in that way. And that's a problem I think, how to make it relevant for the folks at home. Maybe we on "Strict Scrutiny" are doing some of the lifting on this by doing the Aunt Johnny Perl test, but I don't know how deep our reach is, certainly not to the extent the conservative legal movement has had reach. And I think that's an issue. I think Justice Ginsburg had sort of cottoned on to this in the later part of her career, I think it's one of the reasons why she was so tickled at being the Notorious RBG because she had this moment where she was for the left what Justice Scalia was for the right, and in the same way, conservative law students were reading and citing Justice Scalia opinions, now progressive students were doing the same thing for her. And I don't know that it was necessarily narcissism, but actually, she had found a conduit into the next generation of lawyers and possibly even beyond lawyers and I think she was excited and energized by that. Justice Sotomayor too I think recognizes the power of reaching beyond the court to the people. I think a lot of her decisions are written in a way to engage the public, they are I think what Lani Guinier and Gerald Torres might call demosprudence, that kind of speaking not to other legal actors, but speaking directly to the people. And I think she's been doing more of this as the court has moved sharply to the right because I think she recognizes this court isn't going to save itself, it's going to have to come from outside of the court. And I think maybe that is an attempt to calibrate the incredible intellectual success of the conservative legal movement. Whether it is too little too late I think is a completely different question.
- Can I just follow up on that. I mean, do you think that originalism just at least on the surface looks like a simple, digestible powerful view?
- Yeah, it plays in Huntsman.
- Right, right. But do you think that there is the liberal understanding the constitution just isn't, it's sort of in its nature not to be capable of that kind of formulation?
- I don't know if it's entirely incapable, I mean, but I think, one, what is it, right? Is it living constitutionalism, and if it is living constitutionalism, this idea that there's a kind of dynamism to the constitution and is perpetually updating like Apple software, now we're like constitution Apache. Like Big Sur, who knows. And I think that leaves people uneasy and slightly anxious because it vests a lot of authority for the update in the hands of these unelected judges. And I think even liberals who believe that the constitution has to move with the times and it's intended to like to evolve to meet new challenges, like the framers didn't know about cellphone towers, but surely we can figure out if the Fourth Amendment applies to data contained in cell phone towers. But I think there is a kind of concern that how far removed from the people the judiciary is means that there's a potential for kind of elitist capture if you allow for this sort of dynamic vision of the constitution to take sway. And that's the attractive thing about originalism.
- [Quinn] I was wondering what your thoughts are about the role of the law in terms of equal opportunity versus equal outcome, and I guess in terms of voting rights and reproductive rights, should the role of the law to ensure that everybody has the equal opportunity to vote or that of the people who do vote, there's a proportionality in terms of race and gender and other factors that have maybe previously inhibited people from voting in the past?
- So it's a terrific question, Quinn, and I think it's one that was captured in the oral arguments in those Arizona voting cases last year. The lawyer for Arizona, Mike Carvin, basically made the argument that there is no equal protection problem, there's no voting rights section two problem if everyone has an equal opportunity to vote. And, again, this goes to the question of the background defaults, right? That people are making these decisions, exercising these rights in. The lawyer on the other side noted that in Arizona, there's a sizable Native population, and, yes, they have the opportunity to vote, but polling stations are actually few and far between on reservations, post office are all, post offices which we sort of take for granted in most communities are actually also scarce on reservation so even the prospect of voting by mail is much more difficult. So yes, that everyone has an equal opportunity to vote, but there may not necessarily be an equal opportunity to have your vote counted, right? And that's sort of the difference I think between equal opportunity and sort of equality of outcome in the court. I think it was very clear, like the Voting Rights Act is about equal opportunity, not necessarily equal outcomes. And the part that was most stunning about the oral argument is there's a colloquy between Mike Carvin and Justice Kagan in which she's sort of pressing him on this question of equal, like why do you need this, like why do you need this law, like why do you need to prevent individuals on Native American reservations from collecting the ballots and bringing them all to a polling place together, right? Why does that matter if what you care about is equal opportunity. And he basically confessed and conceded that every vote counts, especially in these purple jurisdictions like Arizona where they're basically street fighting and the difference between an election and the state's electoral college votes going for a Democrat or Republican can be thousands or tens of thousands of votes. And so yes, we're going to get in there and we're going to litigate every one of these because that's how you win. And that I think made it very clear, this wasn't about equal opportunity, it wasn't about Democrat, it was about winning, it was about power. And I mean, like forget equal opportunity and equal outcome, this is a power play at this point.
- [Student] So, the past four Supreme Court nominees which are the only four that I've really been old enough to pay attention to have been some of the most divisive news stories of my time of this age. And you mentioned a minute ago that the putting so much power in unelected officials would make some people uneasy under a liberal understanding of the constitution. I'm wondering if you think that there's any grounds to reconsider the fact that the court is made up of unelected officials in the first place.
- I'm trying to think who, so the four, like Barrett, Kavanaugh, Gorsuch, and Kagan too, you're even including Kagan in this.
- [Student] I was thinking of, what was it, no, Garland.
- Well, he didn't make it, right?
- He wasn't even gotten a hearing.
- [Student] Yeah.
- He did get a hearing when he became Attorney General so cold comfort, but non the less. It's great when you have to settle for being Attorney General of the United States. So it's a really interesting question, I mean, like the whole framework around the Article Three judiciary and then being unelected is this idea that because they are unelected, they are not beholden to the democratic process, right? They don't have to worry about pleasing the voters, they can be above politics, so to speak. That is appealing in some ways. I mean, if you think about state courts, many of them are elected, including state high courts, and that has pathologies of its own elected judges and there's lots you could say about that. And so it's not to say that the fact of an unelected judiciary is by itself problematic, I mean, I think there are some real virtues to it, I think the question is, at a time like this when we have a democracy that really is made up of a plurality of different kinds of people and constituencies, what is perhaps most surprising about the Supreme Court is that it is not made up of a plurality of different constituencies. Eight of the nine justices are from the Boston to DC corridor, right? I think, when Justice Ginsburg was on the court, three of them were all from New York, right? Justice Sotomayor, Kagan and Ginsburg. Justice Thomas was living in DC when he was appointed, but he's originally from Georgia. The only justice to have not attended an elite university and law school is just as Barrett, right? So there's a degree to which as a group, they're sort of the elite of the elite, right? Justice Sotomayor is the only one who was raised in a household where English was not the first language. She and Justice Thomas are the only ones who have grown up in relative poverty. I think six of the justices are Catholic, right? That's a surprising degree of homogeneity, and that kind of homogeneity does not get limited to the court itself, but also I think bleeds out into the ecosystem of the court and how the courts doings are then translated back to us. So the group of clerks who work for the justices are largely homogenous. I think last year, roughly 20% of the clerks were women, right? So it's a lot of men. A lot of them hailing from the sort of traditional schools from which the justices hail. In the press corps around the Supreme Court, most of the people who report on the court are white men, there are a handful of women, Dahlia Lithwick, Nina Totenberg, Linda Greenhouse sort of sporadically now that she's retired from the New York Times, but they're mostly white men, very few people of color on that beat. I mean, it's one of the reasons why we decided to start a podcast so that there could be people who look like us who cared about some of the issues in the court and who could talk about what those issues meant for communities that were not always reflected in the discourse around the court. So, this is all to say like, there are lots of problems with an unelected judiciary. The fact that they're unelected I'm not sure is the principal problem, I think that they're unelected and incredibly unrepresentative, and then surrounded by an ecosystem that is also seriously unrepresentative is more problematic, in my view.
- [Student] Thank you.
- We have time for one concluding question. Who would like to, go back to you, absolutely.
- [Student] Yeah, sorry. Just along those lines, I've been looking at like where a lot of, so sort of what you mentioned, a lot of them just like come out of like Harvard or Yale Law School.
- Terrible phrase.
- [Student] And like, why is that?
- Why is Yale?
- [Student] Why is it that like all these justices and a lot of the clerks are just coming out of like these 14 schools, and how do you like, I don't know if you know how, but how do you fix a problem like that?
- I mean, that's the question, right? I mean, so I think we as a society are sort of interested in credentials. I mean, you all are interested in credentials, you're here at Amherst, it's like the number one liberal arts college in the country, yes?
- Yeah.
- You clearly don't care. Like we're all enamored of credentials. I mean, like I went to Yale and I went because it was number one, right? And I thought if I wanted to, whatever I wanted to do, being the number one school was going to help me to do it. And I'm sure you all make calculus like that all the time. I think presidents make similar kinds of calculus when they're trying to determine, can I get this nominee through a Senate that is very closely divided where like unassailable credentials perhaps smooth the path? Do I think Justice Sotomayor would be on the court now if she had gone to no name law school and hadn't been on the law review there, probably not, I think it mattered that she went to Yale Law School. And even though she went to Yale Law School and was a summa cum graduate of Princeton University, she still got to sail as being not smart enough, not good enough, all right? So yes, we are an incredibly liberal borage society and presidents are not immune from that impulse either. And even when people have those credentials, I think for whatever reason, there still may be questions about whether they are qualified or not to fill that post. So that is I hope approximating an answer to the broader existential question of why is Yale.
- Which is the note on which we always end our conversation. So thanks so much for joining us this evening.
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago, and is the author of many books on constitutional law. Read more about the speaker.
Geoffrey Stone Transcript
- Good afternoon, everyone. So I'm Lawrence Douglas. I teach in the Department of Law, Jurisprudence and Social Thought here at Amherst. And I'd like to welcome you to the second event in the semester's Point/Counterpoint Series. This series has been organized by Professor Nishi Shah, Professor Alexander George, and myself. And the series is designed as a kind of pedagogic compliment to the first year seminar cluster course called Progress or I should say Progress? To emphasize the question mark at the end. And it's been made possible by a gift from the members of the 50th reunion class of 1970. I'd also like to thank those who helped put together this event, including the Office of Communications, Conferences and Special Events and the President's Office. The Point/Counterpoint Series is designed to bring prominent speakers to our campus and to engage them in a thoughtful conversation about important issues of the day. The idea is not to score points in a debate, but to model considered critical inquiry about contested matters that resist simple solution. Our first event, as you recall, featured a conversation with professors Anthony Appiah, and Adolph Reed about issues of identity and race, and today's conversation is devoted to the issue of free speech, its purposes, its vexations, the challenges it faces from the right and from the left. And we are extremely fortunate to have Professor Geoffrey Stone here to help us discuss these fraught issues. Stone comes to us as perhaps the nation's preeminent scholar on the First Amendment and free speech issues. Stone was raised in Bronx, Queens and, right, Nick? And took his degrees at Penn's Wharton School and the University of Chicago Law School. After clerking for William J. Brennan on the US Supreme Court, Stone joined the faculty of the University of Chicago Law School where he has served as Dean of the school and also as provost of the university. And he's presently the university's Edward H. Levi Distinguished Professor. He's the author of many books, only one of which will I play a show and tell. This is "Perilous Times: Free Speech in Wartime." My brother and I have a kind of informal reading group together and we have a certain designation for books, and this one was designated a PFTB, which is our term for a pretty fricking terrific book. And "Perilous Times" has won numerous national book awards, including the Los Angeles Times Book Prize, and I urge all of you to read it. Really an outstanding work. Stone has written Amicus briefs in numerous cases, including for Lawrence v. Texas, which some of you might know was argued before the Supreme Court by Amherst College Trustee, Paul Smith. He also wrote in Obergefell v. Hodges, Rasul v. Bush. He represented Bill Clinton before the US Supreme Court in the Clinton v. Jones case and was appointed President Obama to serve on the President's Review Group on Intelligence and Communications Technology. And last but perhaps not least, he is the proud father of Mollie Stone, Amherst College class of 2001. So we're going to have a conversation which will probably last about 45 to 50 minutes or so. And then we're going to open things up for questions from you, and because this event is being recorded, we're going to ask you to ask your questions into a microphone. There'll be a microphone available over here. And then you could also, I mean, if it's hard for you to get access to that, we can also hand you this handheld microphone from here. So without any further ado, please join me in welcoming Geoffrey Stone to Amherst College. Geoffrey, I wonder if you could actually begin by maybe with a somewhat, maybe unusual question, which is, I think there are a number of first year students actually in attendance here. And I was wondering if you could maybe tell us something about your first semester in college, whether at that time it was clear that you want to be a legal academic and a foremost expert on First Amendment issues.
- So when I entered college in 1964, the world was very different. We didn't know anything about colleges. We had guidance counselors in high school who would give us advice about where we might fit in. We never visited the schools. There was nothing online. There was no online. I knew next to nothing about anything about college or about Penn. And I got there in the fall of my freshman year and had an interesting experience and enjoyed it. The most noteworthy part of my first year experience happened actually at the end of the spring quarter, spring semester, I should say. Chicago has a quarter system, sorry, Penn does not. At end of my spring semester, there was an anti-Vietnam war protest and I participated in it. And as we were marching along a sidewalk next to some building at the university, a group of students, not including myself, climbed up onto this metal fence. And the fence had bars going vertically and then one horizontally and then things on the top with spikes on them and they climbed up on it. I don't think there was anything about the particular building they were doing it for. It was just part of the protest. And the top part broke off and fell over. And one of the spikes hit me in the back and I was bleeding pretty badly. And students around me got all upset and held a car and the driver of the car was nice enough to let me go into the backseat with a couple of the other students helping me. I probably got blood on their backseat, I don't know. They took me to the university hospital. I went in there for, I don't know, four or five hours and they sewed me up. And then they sent me back to my dorm room. And at about eight o'clock in the morning I got a phone call and the call was from, these were in the days when there's no cell phones, it was a real telephone. And the call was from the Dean of Students Office And the person said "Is this Geoffrey Stone?" And I said, "Yes." And they said, "Come to the Dean of Students Office at 10 o'clock," and I said, "Why?" And they said, "Just be here." So I had to find out where the hell the Dean of Students Office was, I had no idea. And I went there and it turned out the Dean of Students and a committee of faculty members said, "You were involved in an anti-war protest yesterday." I said, "Yes." And they said "You were injured during that protest 'cause you were climbing up on this fence and then broke it." I said, "Well, actually I wasn't climbing up on the fence. Some other kids were, but it came down and hit me in the back." And they said, "Well, we don't know whether that's the truth, it doesn't sound very credible. You're just making that up for yourself. You're suspended for the rest of the semester." I said, "What does that mean? There's like three days of classes left and exams." And they said, "You have to leave the dorm. You have to leave the campus. You cannot take your exams. You're done for the spring semester." And I went back to my dorm and I thought about it for a bit. And I said, "Fuck them." And I figured, I don't know if anybody's going to know I'm doing this, so I went to my classes, I took my exams, I got my grades. Nobody ever seemed to know it again. Then when I applied to law school, I realized it was going to be on my record that I'd been suspended. So I made an appointment to go see the Dean of Students. I think it was a different Dean of Students. I don't really remember for sure now. And I told them my version of it, which was accurate. And he had decided to expunge the suspension. But for that, I probably would not have gotten into law school. So that was my first year of law school.
- Wow.
- That's interesting.
- Yeah, is that the end of your time demonstrating?
- No, definitely not.
- Right.
- And so let's talk a little about the First Amendment and maybe just, we can start with a really preliminary question which is, what is even the logic behind the robust protection of free speech? Why even do it?
- Well, there's a variety of different reasons why free speech is thought to be important. One is, in a democracy it's important that individuals be able to participate in the electoral and governing process and to be free to do that by hearing ideas and information and positions across the spectrum, to be able to make their own judgements about what policies and what individuals they want to support or to oppose, and that the best way for them to be able to do that is to be able to both express themselves openly and freely and to hear the views of others openly and freely. Another reason why freedom of speech is thought to be important has to do with individual self-fulfillment. That a part of humanity is thought to be the ability to express your own views about what you think, whether it's about politics or anything else just in the sense that humanity is partly about being able to be an independent person who can not silence oneself, but can simply say what one thinks because that in itself is part of what it is to be a free person, even apart from the political role. And the third is that we make decisions all the time about our lives, anything from who to vote for, to what car to buy to whether to go to college to what college to go to what courses to take and on and on and on and on. And we should have the ability to make those decisions by being exposed to all of the information and all of the points of view that are out there so we can make what we regard as the best decision for ourselves. So those are the three primary reasons why freedom of speech is regarded as important, particularly in a democratic society, but even in a free society, whether or not it's democratic, and the framers of the Constitution were thinking of it primarily, I would think, from a political standpoint at that time when they put the First Amendment of the Constitution but they no doubt also were aware of the other rationales as well.
- So I mean, if I think about those three, it sounds like at least two of them, maybe all three of them are kind of instrumental in a certain way, that they really are, they're the goal that we want to support. Let's say informed democratic decision-making, making informed decisions for our own life about whether to get vaccinated or not. And that free speech becomes a helpful vehicle or a necessary, perhaps, vehicle for making these kind of proper choices. I just wonder about the world we live in today. I mean, I think there's a lot of concern among people, among young people as well that maybe this robust protection of free speech is not serving these interests particularly well. That both we see things such as hate speech on the one hand and then also the circulation of disinformation on the other. So I wonder if you could talk a little about that, these kind of, the way in which present realities might be challenging some of the assumptions that have historically undergirded the First Amendment tradition.
- So those concerns have been there from the very beginning, and they have existed always throughout time. There's nothing, in that sense, particularly unique about the current moment. There was a time when, if you were at a college, for example, you could not take positions that were inconsistent with the religious views of the leaders of the college. If you did, you would be expelled. During the period of slavery in the North, you could not endorse slavery if you were a student in a college. And if you were in the South, if you opposed slavery, in both of those situations, whether as a professor or as a student, you would be expelled or fired. There was no real commitment to freedom of speech because people were confident they knew what the truth was. And during World War One, for example, thousands of individuals, progressives and socialists were arrested, prosecuted, put in jail for 10 to 20 years and even sent out of the country because they criticized the war and the draft because people thought that was simply the wrong thing to do. It was not only factually wrong, but it was dangerous for the country. It was harmful to the country. During the communist era, students at universities across the country and faculty members at universities across the country were not permitted to take positions that were seen as sympathetic to or supportive of communism. If they'd been a member of a progressive organization 20 years earlier, they could be suspended or expelled because they might not be loyal to the country and to the values of the country. So the notion, and during the Vietnam War, for the examples I gave myself, and the Civil Rights Movement, there's always been in our history strong disagreements among people about what they firmly believe to be true and to be right. And the danger is to enable one group to silence the other. It doesn't mean the one that's doing the silencing is right. In almost all the examples I just gave, history has taught that the ones doing the silencing were wrong, in fact. And another example is creationism and evolution. There was a long time when you could not advocate evolution without getting expelled or fired if you were at a university or fired from a job if you were an employee. So a key thing about the history of free speech is that these conflicts are constant, they're always there. The issues change, what's seen is right and wrong changes. And the idea that there would be equality for women was completely foreign to this country, except for the fact that people were allowed to have free speech arguing that equality for women was essential and right and moral and just. And we would never have had any kind of equality for people who were gay or lesbian or transsexual but for the fact that people were not able to be silenced insofar as their views were regarded as erroneous and dangerous to society, and they eventually were able to carry the day. So I think that there's nothing about the current situation, as much as we might think it's unique, just as people in the McCarthy era of communism thought it was unique or in the evolution and creationism period thought it was unique or in the Civil Rights Movement thought it was unique. It's not, this is just part of human nature and that we will disagree on things always. And we will emphatically believe that we are right, and somebody else is wrong. And part of the reason for free speech is, we don't have any good way of deciding who's right and who's wrong. We don't want to give to anybody the power of making that judgment, A, because they may be wrong and B, because they may have bad motives. And it's better to let this go in the marketplace of ideas. It's not perfect. We will not always come to the right conclusions. But if you look back over time, we've made progress as a society. And we've made that progress largely because of the ability we've had to challenge the accepted wisdom. And on balance, we've done a better job than we might've done if some people in power were able to determine what you can say and what you can't say. When I look at this, there's nothing unique about the current situation in terms of the basic predicate of free speech.
- Can I-
- Do you want to assist?
- Yeah.
- Sure.
- So there's a particular kind of case that I think I agree with everything you said, but I do find a bit dismaying, and I'm curious what you think about it. It has to do with what I see as a kind of tension, current tension we have between scientific expertise and free speech. So we've had a number of cases, right? We rightly defer to experts about whether the vaccines are effective, the best measures to take against COVID, whether climate change is a real danger, whether our elections were fair and free. And of course, experts can get things wrong, too. They're not infallible. So they need to listen to opposing opinions, and to determine their strength. But I'm not an expert. I'm not in a position to determine which arguments are better than which. And so given that that's sort of part of, it's sort of internal to the scientific enterprise that non-experts can't really weigh in, what real value is there in allowing non-experts to fill the public sphere with all kinds of dubious scientific claims, given how much danger that those claims have clearly had?
- So your couple of, this is a complicated question, and it basically has to do with what you're presuming to be false speech, right? Now one problem, of course, is what we may think at a particular moment to be false speech we may learn over time is not. It's actually correct even though at any particular point in time we may believe it to be inaccurate and false. But we also know there is false speech. And the Supreme Court has recognized that there are certain types of false speech that are called low-value speech for purposes of the First Amendment, and false speech is one of them, in theory. Therefore, for example, the government can regulate certain types of false speech in a way that it can't regulate other speech. So for example, there are circumstances in which defamation can be regulated if certain conditions are satisfied, in which perjury in a court of law can be regulated, in which fraud to deceive someone into buying a product that you're selling to them by making false statements can be regulated. But at the same time, the court has been very reluctant to allow a broad, open-ended notion that false speech can be punished, partly because they are uncomfortable with the idea of giving government the power to decide which speech is true and which speech is false. Government is not necessarily trustworthy. And they may have all sorts of self-interest and motivations that lead them to conclude certain things are false and certain things are true when in fact they're not. And to give them the definitive power to make those determinations is to exceed to the potential for real danger. The other reason why it's concerning is that in many circumstances, it's the government who would initiate the proceeding to prosecute someone for making false statements of this sort. And then the question is, well, governments have enormous discretion. There are endless false statements out there, right? They're almost infinite. And the question is, who's the government going to prosecute for making their false statements? Are they going to do this in a completely neutral and fair-minded and balanced manner, or are they going to go after their enemies? They're going to go after their critics. And so part of this, too, is recognizing the risk of giving that kind of power to individuals who may well abuse the power. So even if they're only going to prosecute truly false statements, they may only prosecute truly false statements that damage them, not false statements that benefit them. Do we want to give the government that power? The court has been very reluctant to do that. That isn't to say that there isn't a cost to society of false statements. The question is how to strike the right balance between that cost and the cost of enabling the government to abuse the authority to decide what false statements to prosecute and to decide what's actually false and what's true.
- [Lawrence] So let me just follow up with that.
- Sure.
- Because I certainly agree with you that I'd be very wary about handing the government the power to make these kind of determinations. At the same time, it does strike me that, again, this might be my own deep ingrained pessimism. And I think it's actually helpful to hear the historical perspective that we've seen similar things in the past. But I guess I need some convincing about that because it does strike me that the organization of social media right now creates a climate in which disinflation can circulate in ways that it's never been able to do before. And so I was wondering if there really is perhaps something, A, unique about this moment and then B, if we're not comfortable with having government making these decisions, are we more comfortable with having Facebook make these decisions about curating what is actually on their site?
- So incidentally, Lee Bollinger, the president of Columbia University, who's been a friend of mine for half a century, he clerked at the Supreme Court with Chief Justice Warren Burger when I was clerking for William Brennan. We've written a number of books together over the years. We're currently working on a book on social media and the future of democracy. And it raises exactly these very complicated questions. We now face a method of communication that is extraordinarily pervasive and powerful. And the question is how much control private entities should be allowed to have to control that method of communication and how much we should trust the government to intervene and make decisions about what is permitted and what is not permitted. And I think we're at a moment now where there's a pretty broad consensus that social media presents a challenge that we need to take seriously. And we need to think hard about, what is the best way to regulate this that that does more good than harm? And we had a similar moment in history in the 1930s when radio came into existence and then later television. Congress was very concerned about the fact that there were only two or three, initially, radio frequencies in any given geographic area. So a city like Chicago or New York would have two or three radio frequencies. And if this was made part of the free market, then some rich person could simply buy both or all three frequencies and use them to put forth whatever political and ideological views that they wanted to communicate. And given the potential power of this new means of communication, the government saw this as a serious, grave danger to the success of democracy. And so what Congress did was to pass the Radio Act, which then became the Federal Communications Act which basically said, this is a public good. And therefore no one can use these frequencies without a license from the Federal Communications Commission that is, a government agency would now have the authority to decide who would have control over any of these frequencies. And then they had to renew their licenses every six or seven years. And in order to meet the requirements, they had to be fair and balanced in their presentation, particularly of political and ideological information. And they had to do it in a responsible and fair-minded manner. And this actually worked reasonably well. For those of us who grew up in the prior eras, most people who got their news and information got it from ABC, NBC, CBS, or various radio stations, and from mostly newspapers like "The New York Times" or "The Washington Post" or "The Philadelphia Inquirer" or whatever that were basically responsible. And there were exceptions to that, not on radio and television in that era, but there were newspapers and magazines that were kind of off the charts, but very few people really had access to them. And that led to a kind of common understanding of issues. Now, despite that, we had a communist era, we had a Civil Rights era, we had attitudes about gays and lesbians and so on, but I'm not suggesting for a moment it was perfect, but at least in terms of a general understanding of the nation, there was much more of a universal sense of that. With the advent of cable, the Reagan administration eliminated the Fairness Doctrine. On cable, therefore, for the first time you got things like Fox News and MSNBC, which didn't exist before, and a lot beyond that. And then of course with the internet and social media, everything's all over the lot. And the danger we now face is that many people get their news and information from sources, particularly say Facebook and Twitter, that feed them polarizing information. What they are interested in more than anything is having users so advertisers will pay them to get their advertisements to the people. And the way they do that is if you go online and you start looking at left-wing or right-wing material and liking it, they will then send you more and more that you like so you will spend more and more time on Facebook or on Twitter looking at the stuff you like. And that will create a serious problem of polarization, which we now see in our society that is due at least in part to the impact of social media. In addition, there's the false news issue. One of the things that Congress did when social media came into existence was to enact Section 230 of the Communications Act. And the reason for that was as follows. Ordinary media, radio stations, television stations, newspapers, magazines, if they publish or broadcast material that is defamatory that's actionable or that is obscene or that is in any other way subject to legal limitation, even if they didn't write it, even if they just allowed someone to write a letter to the editor and they published it, right, or an advertisement that they allowed to publish and it had fraudulent information in it, they could be held liable for what they published. With social media, Congress decided that we want this to be an enormous public forum where each of us, without having someone screen everything we say are able to say whatever we please. Because we don't do that and the social media aren't held liable because you publish something that's defamatory or that's obscene or that's a threat, then they will want to screen every single thing that all of us put up there all the time so they don't get held liable. And that will destroy the whole aspiration of creating this extraordinary opportunity that all of us now have to be completely free to say whatever we want. Now, we can be held liable, just to make sure you understand that. If you publish a threat or you publish defamation or you publish something else that's fraudulent, you can be held liable, but Facebook and Twitter can't. And the idea was to basically avoid the responsibility on their part to have to screen everything that everybody would want to put up there. It would change completely the nature of social media. And so they had this vision of having this extraordinary free speech experience for all of us and without an intermediary being responsible for it. And that has worked in one sense amazingly well, but it's also had downsides. And it's had the downside that it enables people to put onto social media all sorts of material that is not legal. And it's very hard for people to prosecute the person who posts it because they're all over the world and it's hard to know who they are and they use phony identities and so on. So rarely does someone who posts something that's a threat or fraudulent or whatever actually get sued or prosecuted for it on social media. And Facebook and Twitter don't have any particular incentive legally to worry about it. So the question now is how to manage that. Is there a way to change that? And on the one hand, we don't want to destroy the positive value of social media. On the other hand, we can see now that the harm that's being created by this means of communication is far greater than anybody imagined when section 230 was enacted so, yeah.
- Yeah, just to follow up. I mean, one thing I think is very interesting about what I've heard you say is I think one of the themes that at least some of the students who are present here have heard during the semester is questions about whether technology is responsible for, whether it's a kind of almost technological determinism that explains the engines of history. And it seems like you're right now pushing back against some notion that it's in the nature of the technology that's created the problem. It's really in the regulatory decisions that we've made. And I just wonder if the upshot of what you're saying is you reintroduce the Fairness Doctrine, you repeal Section 230. Would that kind of regulatory response address the kind of problems that we're encountering today? Like why isn't that a sufficient response to the problems you're articulating?
- So if we eliminated Section 230 and-
- Is everyone following what Professor Stone said about Section 230, what it means? Yeah, yeah.
- So if we eliminated it and if Facebook and Twitter and so on were now getting sued or prosecuted for allowing illegal or legally actionable material to be posted up there and they actually were being subject to serious penalties it would destroy what we now have come to see as social media. And many of us use social media and enjoy it and like the ability to communicate with people all over the world. And that would be significantly or could be significantly inhibited. And the question is, was the world better before we had that? It was better in one sense in that there was not the proliferation of false and misleading and hateful information that is so much more present in the world than it was before, on the other hand, you're not able to hear all sorts of positions and information and ideas that actually are good to hear because they challenge your own views and make you think differently. So I think the real question for the moment, and this is what this book is about. To explain what it is, the way the book works is Bollinger and I invited 18 people to write essays addressing these kinds of questions. And these are people in the technological world. They're legal scholars, historians, political figures. And then we have a commission of seven people who read all the essays and then write a set of recommendations that the seven of us can agree upon. And the people involved in this are people like Amy Klobuchar and Hillary Clinton and a whole bunch of journalists, Marty Baron, who was the editor of "The Washington Post." So they're really distinguished and interesting people. And one of the things that's clear is, this is hard. This is hard. And I think the reality is we as a commission, as a group have come up with some relatively modest suggestions that would make things better, but we recognized that it's not going to address the whole thing because to address the whole thing means largely destroying it. And that's just a trade-off that it's not clear we're ready to make at this point.
- Can I ask a question about, I think I was a little confused about what you said about the Fairness Doctrine because earlier you'd said, we don't want the government deciding which statements are true and which are false and which to prosecute and which not to. But if I'm not mistaken the Fairness Doctrine, right, what counts as fair and balanced is itself going to be a judgment by the government. Why wouldn't we have exactly the same worries there that we had before?
- So there were lots of worries about whether creating the Federal Communications Commission would be politically neutral. The members of the commission were appointed in a way that required both Republican and Democratic approval of the members and an equal number of people from each of the sides. And for the most part, the people who served on the Federal Communications did a reasonably good job. Nonetheless the Regan administration tried to get rid of it partly because with the creation of cable they decided, well, now it's just not worth having anymore, but the truth is it did work reasonably well. And one of the things we talk about in this book and in the commission is, should we create the equivalent of a Federal Communications Commission for social media that regulates what social media can do? And that's one of the recommendations that we have different perspectives on. It's a lot more complicated to do this with social media because it's so much larger and so enormous relative to ABC, NBC, and CBS, but that is one of the questions that's worth thinking about. But the other thing is, we're so polarized now in our politics that we have much less confidence today that one could actually appoint a group of individuals who would do this in a responsible, nonpartisan way than was true back in the 1930s and 1950s when there were political divisions, but not nearly as extreme and partisan as they are today. So all of these are open questions. And I think everybody who thinks about these seriously recognize they're serious questions. Another possibility is, do you break up Facebook and Twitter and turn them into much smaller entities so they don't have the power that they currently have? And there's a legitimate argument for that. And Amy Klobuchar, for example, argues that these should be regarded as antitrust questions and that they now are so powerful and so dominant that one of the ways we can improve the situation is by having many more social media networks that are available for people and that Facebook and Twitter don't have the power that they now do. But all of these are just up in the air at the moment. And they should be 'cause we don't really know enough yet to figure out what the right solution is, but that it's a real problem is absolutely true.
- Right.
- And none of the participants in this say, this is not a problem, go away.
- I wonder if we could also maybe talk a little about the connections between free speech and maybe academic freedom as well. One of the things that strikes me as interesting, just as a being a professor today is, and I wonder again, I'd like to hear your insight from a historical perspective about this is, at least when I was a student it tended to be case that students were pretty aggressive supporters of free speech. And I think it's very interesting to observe that among students today. I think there's a lot of skepticism about free speech. Now for me, that strikes me as somewhat unusual. Again, I would like to hear your historical perspective if that's true, if you think that there is something unusual about this particular moment, about the skepticism towards free speech among young people and that maybe we can talk a little about why that is the case. I mean, we've already spoken about the circulation of disinformation, but I guess a lot of it also has to do with the circulation of hate speech as well.
- So at different points in our history students, and that's obviously a kind of weird generalization because there's students all over the country, I don't think until relatively recently students were predominantly pro-free speech or anti-free speech. It depended on the culture in which they were living and whether the views that they held tended to be the views that were dominant or the ones that wanted to be challenged. So if you take the examples of schools in the South and schools in the North in the pre-Civil War era, I would rather suspect that on both sides, they were opposed to free speech. That is, students in the South did not want to hear people criticizing slavery, And students in North did not want to hear people defending slavery, like their institutions 'cause they were part of the culture in which they were living at that time. And during World War One, I would guess most students at that time, but I'm not sure, I would guess most students at that time were more in favor of free speech, being able to criticize the war, but I'm not sure that's right. That might have been the much more narrow, socialist part of the student body, which was not so much the overall student body. So they may have been anti-free speech in that context as well. During the McCarthy era, again, I'm not sure. I think it varied from where you were. There were some places that really believed communism was evil and therefore would have been opposed to having people advocate communism and there were other parts of the country where people had different views. So I don't think there's a necessary period. Beginning in the 1960s, students became pretty fervently in favor of free speech because of the Civil Rights Movement and because of the anti-war movement and because of the gay rights movement and the women's rights movement. Those were all situations where the views being expressed were anti-majoritarian. And therefore there was a pretty strong cultural view that it's important that people be able to challenge the accepted wisdom. And because the accepted wisdom that generation of students in general believed was wrong, and that women should not be treated differently from men and Blacks should not be treated differently than Whites, and gays should not be treated differently than gays and so on and the Vietnam War should not be regarded as worth fighting. And at least for that generation of students, I think that the vast majority of them were adamantly pro-free speech because it was in their self-interest to be in favor of free speech because if they were not in favor of free speech, they would be suppressed 'cause their views were the minority view being put forth. So I don't think honestly one can say that there is an age issue as much as a kind of political issue, depending upon the moment in time. And people from my generation are fervently in favor of free speech 'cause what we have seen is that if we had not been allowed to express our views and people who agreed with us were not allowed to express our views, we would not have had as successful a Civil Rights Movement, as successful a women's rights movement, as successful a anti-war movement, as successful a gay rights movement and so on. And those things happened only because people were willing to allow people to express views that were clearly not majoritarian. And they eventually largely, not entirely of course, but largely carried the day. And that was just a classic example of why free speech is important. And so our generation, I think therefore, is deeply committed to free speech because we see that it can work and that it can change the world in ways that we believe were positive. Other people, by the way, might say, you created a horrible world, right? You have legalized abortion, right? You have same-sex marriage. What the hell is wrong with this world now? It's completely screwed up because we allowed you guys to argue those things so there's both sides.
- So I'm wondering about a kind of tension between what looked like very salutary efforts, administrative efforts mainly over the last few years, but especially ramped up over the last year to instill anti-racist attitudes and opinions in students and to do so by more or less coercive measures on faculty to change their syllabi, put more material on race and racism in their classes, change the way they teach. And that sort of conflicts with the standard notion of academic freedom where professors are given autonomy to decide what to teach and how to teach it, given the courses that they're teaching. But if these really are good things that we want our students to have anti-racist attitudes and opinions, shouldn't we curtail academic freedom? And if not, do you think that colleges and universities just shouldn't be in the business of instilling anti-racist attitudes in their students?
- So it's important to separate two types of institutions. There is public government-run universities and there's private ones. Public government-run institutions are subject to the First Amendment, which applies to government. It does not apply to private institutions like Amherst or the University of Chicago. In public institutions, they are governed by the First Amendment. And they are therefore limited by that constitutional provision in terms of what they can and cannot do in terms of dictating particular points of view that can be taught or books that can be read or can't be read and so on. Private institutions are not regulated, not restricted by the Constitution. It doesn't apply to private institutions. They are free to make their own decisions. Now, academic freedom is both protected by the First Amendment in public institutions and it is something that private institutions have over time and really not till the 20th century have incorporated into part of their culture. And for the most part, they're similar now in terms of what the First Amendment requires and what most private institutions have themselves endorsed. So what's the point, first of all, of academic freedom, right? Well, it's two different things. In a public institution, government should not be determining what people can learn. That's scary, that's dangerous. We don't want government having that power. In a private institution, it's a private institution. And, you know, just like a private newspaper can write whatever it wants, a private university or college is free to do whatever it wants in terms of its teaching. It could have religious views, it could have racist views. It's allowed to do that as a private entity, but academic freedom says you shouldn't have those views. Academic freedom says, the point of an academic institution as we have generally defined it is to seek the truth. It's to recognize that much of knowledge is questionable, that we've learned over time that what we thought was true was not true. That what we thought was right was not right. And we should not be allowed in the academy to dictate what is true and what is false and what is right and what is wrong. It should all be open always to challenge and to question and to argument. And through that, we both gain the intellectual skills of argument and reason and thinking and thinking for ourselves and being clear-minded and being persuasive, which is a central part of what education is about. It's teaching you those intellectual and analytical skills, not so much facts and information. But also for faculty and to teachers and scholars, it's to be able to seek out new insights and to challenge conventional wisdom. And to do that, you have to have the ability to pose often challenging and upsetting and disturbing positions that maybe turn out to be sensible or turn out to be wrong or moral or immoral. But the only way you can figure it out is by talking about it, arguing about it, reasoning about it, and so on. Now, to come back to your specific question, individual faculty members have on the one hand and should have on the one hand in serious academic institutions, the freedom to decide how they will teach what they teach. Now, that's not meant to be regarded as without boundaries, right? A professor of history can't decide in their history of America class to teach mathematics, right? They can't do that. That's not part of their academic freedom. It's not their job to do that, right? There are limits in what you can do, right? But they're meant to be those kinds of limits, not limits on what you can teach within the subject matter that you teach in and how you can present it. That's part of the professor's freedom. Now, that isn't to say that a college university can't encourage or department can't encourage faculty members to address certain types of issues and to expose their students to certain challenges and certain problems because it is thought by the department that this is a positive way of addressing a scientific question or a historical question or the sociological question or a legal question, but it's never dictated. It's something you talk about and you discuss it with your colleagues and you try to come, hopefully, in good faith to the best way of doing this within your own judgment. And universities over the last half century, at least, since they've come to accept academic freedom as a truly core element of what their mission is because of the belief that that's the best way to come to truth, it's the best way to learn. It's the best way to teach, the best way to gain knowledge. Then you can't dictate to them what they will teach, what they cannot teach. Now, again, there are these extreme exceptions, like the mathematics teacher who wanted to teach history and the history teacher wants to teach mathematics. That's different, but apart from those sorts of extremes, the basic precept is you can write about what you want to write about, you can argue whatever positions you think are correct, and that are worth pursuing as a scholar. And you can teach within your subject matter the perspectives that you think are most sensible and are most enticing and interesting and challenging to their students.
- So if I understand, so if you were to, let's say, make a Venn diagram of free speech and then to make a Venn diagram of academic freedom in the, say, private colleges and universities, would you basically say they kind of overlap with one another?
- Yeah, I think private, I think good private universities and colleges have decided to adhere through their own organizations both internally and with other colleges and universities in various organizations like the American Philosophical Society and so on and decided to embrace these principles as the basic principles of American higher education. And there are exceptions. There are private colleges and universities that have religious definitions and to obviously teach certain religious views as what they regard as right. And there are institutions, private not public, that choose to be very conservative and others that choose to be very liberal, and they have the First Amendment right to do that. They're allowed to do that. But those who think about academic freedom and about true excellence in the academy almost to a person regard that as not the best way to educate and to think about questions. You should not have preconceived notions about what's good, what's bad, what's right, what's wrong, and so on. But there are certainly private institutions that do that. They were allowed to do that. Nothing prevents them from doing that unlike publics. But if you look at what institutions in the United States are regarded as the best academic institutions among the private sphere, for example, under almost any measurement, other than those that are starting from a position of bias, what you'll find is they're all institutions that adhere to the fundamental principle of academic freedom 'cause that's where knowledge grows.
- Yeah, actually let me just push back on that just a little bit, and maybe this is another way of rephrasing the question that Nishi was asking because I could imagine how, so I'm going to make an argument that maybe if you're going to draw the Venn diagram, academic freedom should be smaller than First Amendment freedoms or free speech freedoms in general. And the reason being that in political discourse, civility doesn't necessarily play a huge role. Whereas when you have a community, there should be norms of civility. And those norms of civility kind of require that we constrict the universe of things that are said. And what do you make about that as an argument for kind of shrinking the domain?
- Well, the problem with-
- [Lawrence] By civility like respect, particularly of let's say, historically underrepresented people, that kind of thing.
- Well, civility, of course, does not mean that.
- [Lawrence] Right, right.
- You just, for your own ideological reasons, you just changed the definition of civility, which is part of the problem. So civility is something universities should encourage. And in the Chicago free speech principle, which I chaired the committee that wrote that, we make very clear that promoting civility and mutual respect is an important value and aspiration of academic discourse and culture in a free and open society and a free and open academy. On the other hand, if the institution starts disciplining what it terms incivility, it immediately gets into the business of deciding which incivility is okay and which incivility is not okay. And that's something which, you know, many of us may believe. We know what should be punished and what should be allowed, but other people will have different views on it. And should these institutions of academic freedom be making those judgements? To some degree, the answer is yes, frankly. In a classroom, for example, if a student or a faculty member uses clearly insulting, racist, sexist, anti-Semitic language directed towards a student, that would be regarded as completely off the charts and inappropriate, right? You still have to figure out which words are okay and which words are not okay, which is a mess, but there's a sense that that's a violation of the commitment in the classroom of having a level of maturity and civility and so on. And the same would be true for students directing those words at another in the classroom. Outside the classroom, though, it's more complicated because that's more like the real world. And should universities be in the business of policing all of this? The best way to do it is by education. The best way to do it is by having a view about what it means to have a degree of civility and recognizing that we live in the best society when people do not needlessly insult and hurt one another, needlessly, is the keyword insult or hate one another. And that's something universities should educate people about. But punishing them is more complicated 'cause then you've got to actually pick and choose what word in what context gets punished and what doesn't. And the classroom's the one place, dorms maybe, it's complicated, where it may be okay to do those things, but they're tricky and they're difficult.
- Now, if you want to follow up, I don't know if you do, but I want to turn it over to you people. So if you have a question that you'd like to pose to Professor Stone, you can kind of line up behind that mic over there.
- And if you don't, I'll call on you.
- Yes.
- I'm a law professor.
- If you find yourself in an inaccessible spot, just raise your hand and we can hand you the mic. So any questions so far? Maybe we'll just ask, do you already have one for? Yeah, yeah so let's just...
- Hello.
- Hi.
- [Audience Member] I guess my question sort of falls under the lines of like the Twitter and social media discussion. Like as all of us well know, last January, there was a whole instance of January 6th and then there was the whole thing of then President Trump being banned from Twitter, at least his personal account. So there you have a private company removing the President of the United States because he was saying things like as like, these are official statements apparently. Like for an official statement he made as President. And a common criticism of that act was that, you know, yes, Trump violated Twitter's services about civility, like advocating for violence, et cetera, et cetera, yet members of the Taliban have Twitter accounts and they tweet frequently, and Twitter has not banned them. So I guess my question isn't really a question. It's just a mess where you have a private company that's international in scale. So then really can the US government do something about it when you have people who are not in the United States using and interacting with this application that is also being used by politicians as like an official sphere of like discussion and conveying information, sorry, but-
- No, that's a great question. The Trump incident indicates probably better than any other single moment the extraordinary power social media has. I mean, the ability to take the President off of Twitter because they disapprove of what he said. Note, I disapprove of it, many of you may disapprove of it, but I don't have the power to silence people. And it's not even clear it was illegal, it was criminal. And yet they have the power to do that to someone as central to the democracy as the sitting president of the United States. And so that in itself illustrates how much we've given to these entities in terms of discretion. And that's, now, I mean, I'm not a Trump supporter in the slightest, but I think that that was a really complicated, problematic thing to do. And so there that just illustrates the power that private social media now has in our society. They could take Joe Biden down if they want to. And any of you they could take down if they want to. Nothing prevents them from doing it. There's no legal limitation in this regard on their authority. And there's a sense in which one might say, that's kind of crazy, right? There should be constraints. The other question is the foreign issue, which is another one of the questions that this set of essays in the book I've mentioned is trying to make sense of is, how do you decide to what extent foreign countries and foreign organizations and speakers should have access to our communication means, particularly when they're doing it in ways that are designed to, for example, to influence public opinion by falsehood and to influence politics by not disclosing who they are, by lying about who they are, right? So they tell you they're the people living in Omaha, when in fact they're in the Soviet Union. It's not the Soviet Union anymore, they're in Russia. That shows my age, yeah. When did that happen?
- A while ago. While we were talking.
- Yeah, there you go. So these are, again, major problems, and it was never possible before for any publishing communicative entity to make a decision like taking the president of the United States off Twitter in American history. There was nothing that had that power before, and this is a real danger to us. And again, the problem is how to solve this, how to fix it. And you should take a course on how to do this, right? It's really hard. And as much as you think, is there easy solutions? As you begin playing them out, you realize, no, that's a nightmare, right? But that's another great example of what we face going forward. And we do have to figure out how to address it. There's no question in my mind that we cannot allow a couple of extraordinarily large entities to have this degree of power over our democracy, over our ability to know, and to gain information. They will feed you what their algorithms tell them they should feed you. You have no control over it, and it could be false. It could be misleading. It could be reinforcing what you already believe in, and you have no direct control over it at all. And that's a real problem for the future of democracy unless somebody figures out how to address that.
- Next question, yep. Yeah, if you have a question it's probably a good idea right now to get a-
- Kind of line up.
- And line up so that we can save some time and stuff. So do line up behind the mic, we can...
- [Audience Member] So this is kind of going on with the theme of social media. Well, perhaps not social media, but digital communication.
- What's the difference?
- [Audience Member] Well, what is the difference? Well, you have social media, which is expressing interpersonal communication. The internet in general is where you can put information that may or may not be interacting. You know, there are different modes of interaction. Cutting off that tangent though. So I was wondering about situations in which there may be an obligation to speak. And, you know, for example, maybe in news outlets, when an article is, like when the text of an article is edited or maybe even an instance of that they're charged with some kind of defamation and so changes are made to the original text. Sometimes there are like, unless you have previous knowledge of what has occurred, unless you personally strive to call that change out, these articles that come from these sources of information can be edited without the user's knowledge. There's no obligation, I guess, to keep a track record of what kinds of edits are made for what purpose to kind of help with the understanding of the context of the information that they are being given.
- So who's editing?
- [Audience Member] So I read an article on "The Atlantic" on censorship and the interchange of information on the web. And there is very little in the way of preserving internet history, digital history, the history of the information that we share in these mediums. And so a lot of these mediums are private so there is no obligation to maintain a track record of the things that are made, things that changed even if they concern national news or things that pertain to our own lives and livelihoods. Like what would you think about that when like this, when it's not an issue of censorship, but you know, these entities should be doing their best to inform us, the public as experts on these situations and they don't.
- By these entities you mean...
- [Audience Member] Like news outlets like "The New Yorker," "The Guardian" perhaps that are not public, but they have a status as news outlets and therefore perhaps they could be categorized as this different source of information that could-
- Did you get the question?
- I'm not sure if I entirely get the question.
- I don't either.
- [Audience Member] Okay.
- One way, I don't know if this is what's being asked. I mean, maybe there's a idea that there's actually not a stable text anymore. That in some of these, you know, these things are constantly being revised and something that is perhaps circulated that could be incendiary. And then when you try to find it, it's sort of gone. I mean, I don't know if that's, I mean, I remember when I was doing this book on the election, Kris Kobach published something in "Breitbart" claiming that New Hampshire election was riddled with fraud. And he basically made some kind of retractive statement, but that was never published anywhere. And you try to then find his original article, which widely circulated at the time and it's just kind of disappears.
- [Audience Member] That is in essence my question, yes because text is very different categorically to the web because like texts, it's physical. You have archives, preservation.
- Right, right, so let's, yeah. Is that anything that...
- So I mean, I gather the problem is people could put something up and then have it have an impact and then make it disappear. So after the fact you can't show it. Well, I mean, I suppose that, 'cause I have two off the top of my head reactions to this. One is there may be lots of good reasons why you want to be able to take something down 'cause you published it and then you realize later you were wrong, right? And so if you can remove something, there may be very good reasons for wanting to do that 'cause you realized you made a mistake. And the other point though, is you put something up and then you want to take it down because you wanted to mislead people and then you want not to be caught for having done so.
- [Audience Member] Well, that is true.
- The question is, should there be a mechanism that prevents people from removing things that Facebook or Twitter or whatever has that always keeps it in its own body of information, whether or not it's available any longer to the public. And I'd surprised that they don't actually have that, frankly, I mean, maybe they don't, but I'd be actually surprised that they don't have that technologically. But I mean, I see the problem. If someone wants to defraud others in a way and not get caught at it, you put it up and then as soon as you accomplish your goal, you make it go away and nobody can necessarily prove that you ever really wanted to put it up. That is a problem. And I would think that if one sees it as enough of a problem, I don't know whether it is or not, you could preserve it. On the other hand, people have a strong interest in privacy and not wanting to be held accountable for things they said when they changed their mind. So, one of the reasons, legitimate reasons you might want to take things down is because you realized you didn't say the right thing. And so having an absolute rule that everything that you put up is somewhere there in the past, strikes me as, there's good things about it and bad things about it.
- [Audience Member] Right, that's, um-
- Actually, let's move to the next question, please.
- [Audience Member] Yes.
- Yeah, thank you very much.
- Sorry, yes, thank you.
- [Audience Member] Hi, I have a question about Citizens United and the role of money as a form of speech more broadly. In your essay that you sent to all of us, you say that the Supreme Court has come to understand that the equality of status in the field of ideas, that there should be equality of status in the field of ideas, and that the government must therefore afford all points of view an equal opportunity to be heard. And then if someone or some group has more money than myself, then they have more of an opportunity to influence political debate. And then at the end of your essay, you say that Chief Justice John Roberts cites the Citizens United decision, as one of his legacy of defending free speech. But given that it allows interest groups to have more power than individuals, depending on the amount of money that they have, wouldn't banning super PACs strengthen the First Amendment by giving individuals a greater proportion of say in terms of political debate?
- Yes, I think Citizens United was a terrible decision even though it was pro-free speech, it expanded free speech. That's what Roberts was saying. My view would have been restricting free speech more 'cause my point is not that free speech is always good. So the issue as you sort of described it, it's a critical one in American politics today, frankly. And you know, one way to think about it is, suppose there was a presidential debate and there were five candidates up there. And the moderator said, okay, we will give time to each of the candidates based upon how much you're willing to pay for it. Like, everyone would say, that's nuts. That's no way to have a debate about substantive issues, right? That's crazy, right? That's what these justices have created in our political arena. And in Citizens United, they overruled a decision from only seven years earlier, which had reached the opposite result. Now, I don't want to get too much into the weeds of doctrine, but the basic point about this is this. What I had said in the piece I gave you is that viewpoint-based discrimination is the centerpiece of what's inconsistent with the First Amendment. Campaign finance regulation is not viewpoint regulation. It does not say that Democrats can spend this much, and Republicans can spend that much and socialists can spend this much. That would be viewpoint discrimination, right? This is a neutral law that applies to everyone, regardless of what positions you're taking. And the more liberal justices on this issue have taken the view that this is a content-neutral restriction of speech, and it therefore should be permissible if it serves a sufficiently substantial government interest. And that because of the completely distorting effect that huge disparities in money can have in the political process, and that that shouldn't be how we decide issues politically, based upon money, that there's a sufficient justification to justify this, even though it's limiting the ability of people to express themselves as much as they would like. If I'm a billionaire, and I want to spend $50 million to support the election of my favorite candidate and you tell me I can't do that, I can only spend 10,000 I'm going to say, "That's crazy. You can't do that. I want to spend more." So that's the argument that they're making, but the flip side of it is that's not a viewpoint-based rule. It's a content-based rule. It's saying that none of us are allowed to spend more than $10,000 or whatever number it is and that that's neutral across individuals and it's neutral across particular political ideologies and therefore it should be permissible as long as there's a substantial justification, and a substantial justification is the electoral process being a fair and sensible process like political debate would be a fair and sensible process. So I think that, yes, Roberts is very proud of that. He thinks it's pro-free speech. It is technically pro-free speech, but it's anti-democracy.
- [Audience Member] Thank you.
- [Audience Member] It seems that you attribute much of the success of various protest movements in the 20th century to free speech. And I'm a little bit doubtful. I'm just curious what you think. It doesn't seem to me, when I think back to these movements, I think of, you know, police violence, state and private violence against the people protesting segregation, against the people protesting for the right to vote, things like the Stonewall riots. That doesn't seem to me what you'd think of when you think of free speech, when you think of a triumph of free speech. You know, it's not like we had a Black activist up on the stage, a moderator, and then a racist and they said, you know, let's talk about segregation and figure it out. So I'm wondering, is free speech really, really, should it really get the credit for these sorts of successes that we've seen?
- So the images that you have about these questions are real, right, like Stonewall and like Selma and so on. But what happened in those circumstances is the courts held that the government could not constitutionally do what it was doing. And for example, in the civil rights cases, the Supreme Court held that the argument of the Southern towns, cities was that we have to prevent these civil rights marchers because these White opponents are going to engage in violence. And the only way we can prevent the White opponents from engaging in violence is by stopping the marches and preventing the violence from occurring by that. What the Supreme Court held is you can't do that. You have to in fact protect the speakers and protect the marchers. And the practical reality is that after the court decided those things, that is what happened. And so what we see in our mind are the images from those moments when there was that violence, but once the courts said, you can't do that, that meant that the violence could not be used to stop the speakers and the speeches and the marches were allowed to then go on. So after Stonewall, for example, you know, only a few days after it, there was a huge march in the city of New York that was protected by the police and it was permitted. So I think one has to understand that if the court had taken the opposite approach and said, you can prohibit speeches and marches, as long as there is a threat of violence against the marches, then that would create what's called the heckler's veto. That individuals who don't want someone to be allowed to speak will simply make threats, even anonymous threats that if they're allowed to speak, we're going to shoot them. And then the police who don't want the marchers anyway 'cause they don't agree with them would come in and say, "You can't have a march, period, done," right? So the reality is that one of the nice things about the violence is that it got a lot of publicity, ironically. I mean, in that sense it got visibility for the marchers, even though they were shut down, but it also meant that thousands of other events took place because the government was not allowed to shut down the marchers, and that had a huge impact.
- [Audience Member] Thank you.
- Sure.
- [Audience Member] My question revolves around a hot issue right now in the state of Florida. I believe two weeks ago, the administration at the University of Florida banned three professors from testifying on voting on a controversial voting law case. And the reason they stated for this ban was because it ran contrary to the interests of the State of Florida because it challenged the administration of Governor Ron DeSantis. So I know we were having conversation between the role of public universities and how they have to respect the First Amendment in comparison to private universities so I was wondering what your thoughts were on the administration's decision to ban professors from testifying on a voting law case.
- So that was patently unconstitutional. And I think I read that they actually now changed and allowed them to do it, but that was just patently unconstitutional. And to say that there are constitutional rights doesn't mean that government entities don't try to violate those rights. And, you know, then there may have to be litigation and so on, but there's absolutely no question that that was unconstitutional. Yeah, those individuals had a right to testify on either side of the question. Doesn't matter which side they wanted to testify.
- [Elise] Hi, so, so far you've talked a lot about the ways in which larger institutions have effects on free speech, like the government, social media companies, college administrations, but I'm curious what you think about the ways in which public opinion can have an impact on free speech. And the example I'm thinking of here is cancel culture. It is a very like, very loaded term, but a lot of people would argue that that is an instance where while it takes place on Twitter, Twitter, the company really has nothing to do with people feeling like they're being forced out of public arenas or not allowed to express a certain opinion. And I'm curious how much legitimacy you would lend to the claim that public opinion and social stigma has some real effect on free speech.
- Good, great question. It obviously has a huge impact in many circumstances on the willingness of people to take positions that they believe to be correct because they are reluctant to pay the price of doing so. And this is like the heckler's veto, but it's not with violence necessarily, but it's with being treated as if you are a stupid, horrible, immoral person. And this goes to the point that I talked about, about a chilling effect. That most of the time, whether any of us say something that we believe to be true is rarely likely to have a significant difference or impact on the world. And therefore we can be deterred from saying something that can get us in trouble, either by being punished in some way, or just by being disapproved of and criticized and excoriated by others. Is it really worth it, right? I want my life to go on without having everything be messy and ugly. And that the reality is that people will in fact surrender their freedom to express their own points of view in most situations, not all necessarily, but most situations if they are going to pay some sort of a price for doing so. And that is a real danger to the whole concept of free speech and how one deals with that is very difficult. In the civil rights cases, for example, the way of silencing it was by the police. And not by the police, by White citizens going there and throwing rocks and threatening people and firing them for participating in the demonstrations and so on. And that's not necessarily all that different from, in the current world, people being demonized for having taken positions that others don't like. I mean, some people are sufficiently courageous and convinced their views are right and convinced that it's important for them to take those positions that they're willing to take them even in the face of significant penalty, social penalties and other penalties. But most of us aren't willing to do that. And the consequence of that is to silence people from saying the things that they think are important to be heard, and in a free and open society, that's not a good state of affairs. That's exactly what's going on in the civil rights marches. It's not violence, but it's inflicting upon people a penalty for expressing their point of view. Now, you can disagree with them, that's fine, but going beyond that is something one should think about 'cause when you go beyond that, you're doing the same thing that the White Southerners were doing in the South. And you're basically trying to get people not to say what they have a right to say because you want to shut them the hell up. And that's not the way we should operate as an academy or as a democracy. You can respond to them. You can argue the other side, that's great. That's perfectly fine. But to try to actually silence them by penalizing them, whether it's by violence or otherwise, is not the way a mature citizen in a well-functioning society or democracy behaves.
- [Elise] Do you think there's any remedy to that considering that it's the collective action of individuals and not something that's controlled by an institution?
- It's very difficult to enforce other than by education. I mean, I think the best way to deal with that is by educating people that that's not the right thing to do. That's not respectful of the values of the academy, of the values of a democracy. And you might not agree with somebody. You might find their views abhorrent, but the right response is to explain why you think they're wrong and take the other position. It's not to do those things that you know are being designed to silence other people.
- [Elise] Thank you. Can I just follow up on Elise's question? So John Stuart Mill, he actually thought that social coercion was in a way worse than legal sanctions and the way he put it was he said that social coercion, unlike legal sanctions might stop you from acting in certain ways, but he said that social coercion enslaved the soul. And take it what he meant by that was that when all the people around you disapprove of what you're saying or doing, you're not just going to stop saying or doing it, you're going to change your mind. You're going to stop thinking those thoughts because of the need for social conformity, which you might not do with respect to just mere legal sanctions.
- Well, I don't have any problem with people, if there are 20 people disagreeing with one. I don't have any problem with that. And you're right, that might lead somebody not to change their mind, which is fine, but to not change their mind but just to shut up. And therefore I think it's important for the people who disagree to be respectful. And even if you disagree with what somebody's views are, to not try to silence them by intimidation. And that's hard to do sometimes 'cause sometimes you feel passionately, but the problem is, we all feel passionately about different issues and again, historically, that's not been a good way to work things out. That's not been a good way. It's a power trip. It's not debate, it's not discussion, it's not intellectual. It's power, and power is not the right way to figure out what the truth is and to persuade people. Persuading them is completely great but intimidating is not.
- [Audience Member] Hi, Professor. I was wondering what your views are on the right to be forgotten and how that could potentially violate free speech and the freedom of the press.
- So the right to be forgotten basically suggests that if there are things that are said about you that you find problematic or painful or invasion of privacy or whatever, or defamatory, should you have a right to make them go away, right? Or should the government give you a right to make them go away? To the extent they are false and proved to be false, I think the answer is in theory, yes. But that immediately gives you the question of what's false? There's lots of things that may be said about you that if you could make them not be said anymore by claiming they're false will claim they're false even if they're true, right? Did I get suspended from college? Are you kidding? I don't know where people got that idea. That's ridiculous, right? That's completely false, prove it. Nobody knows that it was. I know you can't prove it 'cause it was all expunged, right? So, you know, who's going to decide these questions? That's the first question. On the privacy side, which is what some of the European nations have done is to say, there are certain facts about your life that you should have a right to privacy. A simple example will be nude pictures of you that somebody else takes, for example, when you're in a locker room and they put it online and you want to take them down. And the question is, is there any reason why you should not be allowed to take it down? Well, in that case, there's not necessarily any issue of falsehood involved. Although it may be that you posed for the photograph and that you actually knew what was going to happen, but then you got all hassled by it so you said, "Take it down," and you're not being truthful about it, but that's not the normal situation there. I do think there is a interest in individual privacy. And the American Supreme Court has agonized over this right claimed right to privacy. All of us can agree that there are circumstances in which it is wrong to publish and disclose information about individuals that was either disclosed, including private circumstances or which the person didn't even mean to disclose as in the photograph in the shower example or having sex with somebody who unbeknownst to you is filming it and then they put it on social media. And the problem there again is simply one of, who gets to decide whether this is sufficiently private, who gets to decide whether you knew what was happening, didn't know what was happening, and the right to be forgotten goes beyond the photograph. It goes to all sorts of things you've actually done in fact and now don't want to be held responsible for. So, you know, you cheated on an exam 15 years ago and you don't want anybody to know that. Do you have a right to have that taken down? So I do think there are things about us that should not be out there and available to everybody because it will do us more harm than it will do anybody any good. But the problem, as always, is figuring out which things get taken down, who makes the decision? How do you litigate that? How do you decide it? But for Facebook, for example, to decide, we're going to take things down if you give us a credible argument that this was inappropriate rather than having the government do it, I have no problem with that.
- [Audience Member] All right, thank you.
- And we have time for one last question. Make it good, man.
- [Audience Member] I'll do my best, Professor. Are there any thinkers on free speech with whom you vehemently disagree, but whose work has helped you clarify your own thoughts on free speech?
- That's an interesting question. Are there any with whom I vehemently disagree, but their views have helped me to clarify my own views. That's a really interesting question. Um, hm. I'm sure the answer's yes, but I'm not thinking of it offhand. I mean, one argument would be, say, the originalist argument about the First Amendment that if you were taking a strict originalist view about free speech, you would say that the Supreme Court's very famous decision in "New York Times" versus Sullivan is wrong. In "New York Times" versus Sullivan, the court held that a government official suing "The New York Times" for defamation for publishing a false statement about the public official in the performance of his duties could not be the subject of liability unless the plaintiff, the public official could prove that A, the statement was in fact false, and B, that the speaker, in this case, "The New York Times" published it with either knowledge of falsehood or with reckless disregard for the truth. Now, an originalist would say that at the time the Constitution was adopted, libel law, defamation law was universally understood in the United States as saying, if I think you defamed me, whether I'm a public official or any Tom, Dick, and Harry, I can sue you if I can show that the statement you made harmed my reputation. And you're liable to me unless you can prove the statement was true, period, right? Which puts an enormous burden or much larger burden on the speaker. What the Supreme Court said in "New York Times" and Sullivan was that that creates a serious chilling effect on the willingness of individuals to criticize public officials because if you are inadvertently wrong in what you have said, you could be held liable for defamation. And that seriously undermines the free and open discourse that we need in a free society. And therefore the court completely overturned the originalist understanding of the First Amendment, which the framers presumably held. So that discourse, which I've had with several justices on the Supreme Court, actually, including Clarence Thomas, who believes "New York Times" and Sullivan should be overruled, forces you to think harder about, what are the appropriate bounds of originalism? To what extent should that limit our understanding of any constitutional provision? And what are the legitimate justifications for departing from that originalist understanding? And I think there are very good reasons for being willing to do that because I would argue the framers of these provisions understood that we learn over time and that their understanding of free speech was not what they meant to lock into the First Amendment or their understanding of equal protection of the laws was not what they meant to lock into, that these were aspirations that they meant to put into the Constitution, and that it is appropriate for courts over time to learn from our experience and from our new understandings of reality of society. But that's an example of where conversations, in my case with Antonin Scalia, who was a colleague of mine in Chicago helped me to sort of articulate better my views about these issues.
- [Audience Member] Thank you.
- Thank you.
- [Lawrence] And thank you all for coming out this afternoon.
- Thank you very much.
The first event in the Point/Counterpoint Series, a talk between renowned ethicist and professor of philosophy and law, Kwame Anthony Appiah, and Adolph Reed Jr., Professor Emeritus of Political Science at the University of Pennsylvania. Read more about the speaker.
Kwame Anthony Appiah and Adolph Reed Jr. Transcript
- Good evening, welcome to Johnson Chapel, I think, for the first time for many of you. It's amazing to see so many people indoors. That was for me, huh? My name is Nishi Shah, I'm a philosophy professor, and one of the instructors in the "Progress?" first year seminar. This event, the first in this fall's "Point Counterpoint" series, organized by professors, Lawrence Douglas, Alexander George, and myself. And this series is made possible by a gift from members of the 50th reunion class of 1970. We'd like to thank all of you for abiding by the COVID protocols, the staff who administered the COVID testing program and all of the folks who put this wonderful event together, including the Office of Communications, Conferences and Special Events, the First Year Seminar Committee, and the President's Office and Presidential Scholars Committee. 14 months ago, spurred by the protests over police violence against black people, President Martin wrote a letter to our community, calling on us to reckon with our own racial history at Amherst College. She included, in her letter, a comprehensive plan for creating a campus in which all of us can learn, work, and live free from the indignities of racial discrimination and the threat of racial violence. Tonight's event is part of the curricular portion of that plan, specifically the First Year Seminar curriculum. We're lucky enough to have with us two of the leading lights on issues of identity and race to discuss what it might mean to come to terms with our racial past, whether that be giving reparations to descendants of those who were enslaved or harmed by other racially discriminatory practices, taking down monuments commemorating slave owners, Confederate soldiers, or others who actively opposed racial equality. These are difficult and controversial issues. Given that both of our speakers are original thinkers, not given to orthodox positions, I expect that some of our assumptions about race and achieving anti-racist goals may be upended in the course of our conversation. This is as it should be, given that the Point Counterpoint series was put in place so that we might learn from perspectives not well-represented within our own academic community. The rationale for the series was articulated over 160 years ago by the English philosopher, John Stuart Mill. In his famous essay "On Liberty," Mill wrote, "He who knows only his own side of the case, "knows little of that. "His reasons may be good "and no one may be able to refute them. "But if he is equally unable to refute "the reasons on the opposite side, "if he does not so much as know what they are, "he has no ground for preferring either opinion, "nor is it enough that he should hear "the arguments of adversaries "from his own teachers presented as they state them "and accompanied by what they offer as refutations. "This is not the way to do justice "to the arguments "or bring them into real contact "with his own mind. "He must be able to hear them from persons "who actually believe them, "who defend them in earnest "and do their very utmost for them. "He must know them in their most plausible "and persuasive form. "The very worth of our opinions," Mill tells us, "depends on our willingness "to listen to unfamiliar, "and even uncomfortable opinions, "from those who actually believe them." Let me now, all too briefly, introduce our two distinguished speakers, Professors Anthony Appiah and Adolph Reed. So this is going to be a brief intro to them, and I hope you'll get to know them better through our conversation. Professor Appiah, a renowned public intellectual and professor of philosophy and law at NYU, who Forbes magazine has placed on a list of the world's seven most powerful thinkers, combines the curiosity, precision, and desire to look at old issues afresh, characteristic of, at least what I'd like to think of, as a philosopher, the prodigious and systematic knowledge of the past, characteristic of a historian, and the ability to sympathize with the multitude of perspectives, characteristic of a humanist. These talents allow him to join historical narratives with rigorous analysis to identify the myths and obscurities that surround race, gender, class, and other identities, and to make powerful, cogent, and fair-minded arguments about the legitimate significance of our identities. He's the author of numerous books and essays, including, most recently, the already hugely influential, "The Lies That Bind: Rethinking Identity." And also, a book I hope we'll discuss, "The Honor Code," which is a brilliant examination of the conditions that make for moral revolutions. Professor Reed, a professor emeritus of political science at the University of Pennsylvania, who Cornel West recently described as "The greatest democratic theorist of his generation," combines the seriousness of moral purpose of a grassroots political activist, the depth of analysis of a social theorist, and the sharp, even cutting, insights and witty prose of a literary critic. These talents allow him to produce penetrating and provocative unmasking critiques of orthodox liberal views on race, and to make a case for the fundamental role that class should play in an accurate understanding of social reality and in a truly progressive politics. Among his many writings, I'd like to highlight two: "Class notes: Posing As Politics," a brilliant, piercing series of essays on the pathologies of left-wing intellectuals. Problems that stem from their alienation from the people they claim to represent; And his recent essay, "The Trouble with Disparity," which forcefully argues that if we want to achieve racial justice, we ought to attend to class inequality. Okay, our conversation will last roughly 45 minutes. After which, we'll take a few questions from you. There are microphones on, I think, both sides. Maybe right before the last question, I'll mention that you might... If you have a question, you might want to get up to the podium during the last question. Okay. So without further ado, please join me in welcoming our two guests. So what do you guys want to talk about?
- Not the weather.
- Baseball.
- Baseball, yeah.
- The Red Sox are gone, yay.
- Before we get into the difficult issues about race, I thought we'd start with a bit of a personal question, maybe to get to know you guys a little better. Since we have a bunch of students here, in their first semester of college, I thought I'd ask you about what your first semester of college, or maybe your first year of college was like. Why don't we start with... You want to try it, Professor Reed?
- Sure. Yeah, mine was not a happy time, but I suspect that that's true for most freshmen. But yeah, in fact, over dinner, I was recalling that the clerical and technical workers at Yale went on strike in 1984. And during the strike, the students were less sympathetic to the workers than the faculty were, which was odd for someone coming out of the 60s. But one case in particular was a freshmen who was quoted bemoaning the fact that the university administration and the union had ruined what was supposed to be the best year of his life. And I thought, "Since when is your freshman year in college supposed "to be the best of your life?" But in my case, circumstances were a little idiosyncratic. I was young, and I was not especially mature for my age. And I went to college, partly... At a university I won't name, but partly like on an athletic scholarship, and went there instead of the kind of liberal arts college that my mother wanted me to go to because of the athletic scholarship. But to add to the mix, I was the first black... One of the first three black students to attend the university, and that carried its own burdens with it. Not from the administration, everybody was quite gracious, but from some of my fellow students. Even a couple of people in my dorm who had seen me around, I'd played like intramural sports against them. And this one guy saw me walking out of my dorm room, checking my wallet for my activity packet to go to the football game across the street, was convinced that I was an interloper and had stolen my own wallet. And he says to me, "I know this guy and you're not him." So anyway, so there were a couple of things like that, but I think a lot of it had to do with my lack of maturity, right? Days of being up all night, and then I'm sleeping through my 8:00 AM phys-anthro class, and then waking up to go to track practice. So it was a rough time, and I left after a year and went to the institution where I wound up for good, and had my really formative political and intellectual experiences just from being in the right place at right time. And as I've often said, as you've heard me say probably a half dozen times in the last two days, it's often better to be in the right place at the right time and pay attention than it is to be smart. So I survived a dubious freshman year by going to the right place at the right time and paying attention. And that's my story.
- So I went to college to be a doctor in England. And in England, if you want to be a doctor, you have to do medical sciences as an undergraduate. So I arrived at the age of 18 and my first week in college, I was presented with a corpse which I, and three other people, were supposed to spend the year discovering the insides of, and learning anatomy. Also, was introduced to the practice of doing experiments on decerebrate rabbits. Now, I'm a pretty squeamish guy, so neither of these experiences was very friendly for me. And it became clear to me pretty soon that I was in the wrong business. But the way the university worked, I couldn't get out of medicine without doing the first year medical exam. So even though I knew that I didn't really want to do this thing, I had to stick around. So one of the options in the medical sciences degree at Cambridge was you could do history and philosophy of science. That was the only thing that wasn't science. So I thought, "Well, at least I can go to some lectures" and I enjoyed those. So by the time I got to the end of the year and passed with the lowest possible passing grade, my medical exams, I actually... In the anatomy exam, oral exam, I was examined by a member of the Anatomy Department at Cambridge University and a visiting examiner who was from Oxford, and they presented me with a bone, and asked me what it was. Now, there are only a couple of hundred bones in the human body, so I should have known the answer, but I said, "Could it be, you know, something from the shoulder?" And the guy from Oxford said, "Try the other end of the body." So I think they passed me because they knew I was going to stop doing medicine, and I had been saved from the disaster of my brief medical career by the fact that I was able to do these philosophy lectures and my college permitted me. They didn't have to, but they very kindly permitted me, to turn from medicine to the study of philosophy, which I had already knew I loved, from having spent time reading philosophy in high school. And so, I was saved from my disastrous first year as a freshman by the discovery of philosophy. And I remember the summer between my freshman year and my second year in college, I read John Rawls' "A Theory of Justice," which I'm old enough that that was a new book at that point. I think it had come out the year before. And I felt this, "Hm, yes. "This is better than this exploring "the activities of the vagus nerve "of rabbits whose brains have been destroyed, "or trying to figure out the root "of the passage of the internal inguinal artery." And then, I was saved.
- [Prof. Reed] So there's hope for you all.
- However, it goes, you'll be fine.
- And you should think about philosophy. It saved him. All right, so let's talk about race, or maybe we won't. Both of you, I think, have argued fairly forcefully that, in some sense, race is a myth. So I was wondering if each of you could maybe explain what you meant by that, and maybe what you think the significance of that is, if it really is true. Maybe we'll start with Professor Appiah.
- So... Actually, my brief exposure to biology is relevant here because when I... So we were assistant professors together at Yale in the late paleolithic, and I was my... This was my first job, and I was appointed in African-American Studies and Philosophy. And I think I may have been the first person in the world to be appointed in African-American Studies and Philosophy, because I don't think there were many... African-American Studies was very much a social science thing at that point. The rise of humanistic work in the social sciences... In African-American Studies really begins in the 70s and 80s. And actually, Yale was one of the places, through the work of people like Skip Gates and Robert Stepto, where the explosion of interest in African-American literature really took off. I mean, of course, it was being studied all along in lots of places, but there was a really big takeoff at that point. And so, I arrived, and since I had this job, and since nobody had had this job or any job like it before, it wasn't entirely clear what I was supposed to be doing. So I thought, "what can I usefully contribute "to this amazing intellectual enterprise, "the enterprise of thinking about race in America "and in the world? And I thought, "Well, I should be able "to find in the literature, "I should be able to go into the literature, "there should be lots of stuff "by philosophers about race." Basically nothing. A little bit about racism, but mostly the stuff about racism was not very good. Well, not very helpful, I didn't think. So I thought, "Okay, this is great. "I've got this tabula rasa, "I've got this empty field. "There's almost nothing there "that's currently of interest for the kind of person "with my kind of philosophical training, "analytic philosophers." Though I wouldn't call myself that anymore, but that was my training. And I knew, since I had spent a lot of time being a biologist in order to get into medical school and had studied evolutionary biology, because Darwinism is the central organizing theory of modern biology, along with genomics and genetics, I knew that in the sciences, in the biological sciences, people didn't use this notion in a serious way. That it had been subjected to relentless critique by anthropologists, physical anthropologist, social anthropologists, cultural anthropologists, biologists, geneticists. They didn't want it. So I arrived in the United States, in a Department of African-American Studies, and people are talking to me as if they think that this is some thing inscribed in people's bodies by nature or God or something. And I just think, "Well, that's interesting. "That doesn't seem right to me." So it was that thought, that these social divisions by race were grounded in some kind of objective set of biological differences between people, that thought just seemed to me... It wasn't philosophically wrong, it was just terrible science, as far as I can see. And I checked, and I went back, and I looked in the science channels. I looked in books of evolutionary... In journals of evolutionary stuff, and indeed, I was right. There were good arguments against all of this. So the first thing I was saying when I said that race was a myth, was that the myth was that these social categories that were, of course, incredibly important in the organization of society, the myth was that these were grounded in a sort of objective reality. Now, notice, that even if that had been true, it would not have been appropriate to use those categories as the basis of oppression or insult. So it's not necessary to be opposed to racism to grasp that the race concept is a farrago of mistakes. But I think... I thought, then, at least, that it was helpful, at least, to point that out. To say, "Look, whatever this is, "don't blame nature, "don't blame God. "We made it!" And that has one... For me, at that point, anyway, that had one important consequence, which was that if we make it, we can unmake it. We don't have to do things this way. We don't have to think of the world as divided in these ways. So that was my first sort of thought. So when I said, in an essay that got me into lots of trouble, which was called "The Illusion of Race," and--
- Oh, I was a big fan.
- Of course! But we were on the... I don't think we were in the majority by any means. I mean, even among scholars, nevermind in the general population, I think this was thought to be... One thing that people thought was they didn't believe I believed it. They thought I was just saying this. They thought this was, what is now called, "political correctness." That you were saying, "Oh, this isn't real," because I thought that if it wasn't real, somehow that would help with racism. But that really... I'm afraid, my thought was this very simple, almost, I would say, scientistic thought. The thought was, "Look, "the scientists have looked into it "and they haven't come back with a message "that this is there, "these distinctions are not there in the world." And once you see that, then, of course, you can think, "Look, whatever the explanation is "for any connection between the social categories "of race and anything else," intelligence, health, stuff like that, "it's most likely that the explanation is "a social explanation." It's most likely that if you look at the differences in health disparities, in healthcare outcomes for black and white people in the pandemic, it's most likely that that has to do with the different social experiences of inequality and unequal access to healthcare, and different treatment by the healthcare system, and reasonable skepticism on the part of some black communities about the intentions of the official healthcare system, which is a healthcare system that, in the past, allowed black men in Tuskegee to live for years with syphilis in order to see what happens with syphilis, and so on. So anyway, so the first thought is just, "Look, "this is not what you think it is. "That's the myth."
- Yeah, I had a slightly different route to the same place, basically, at the same time, obviously. But so, part of it is, so my early interest was in the history of ideologies, or my early academic interest, and it's my late academic interest too. But when I was an undergraduate, I majored in political science. I had a double major in soc, but I had one course short of enough credit for a major in anthropology, and I've always considered myself an anthropologically-informed historian of ideologies. So as part of that, I began, for reasons that it would make sense for anyone to be skeptical of a notion like race, I confirmed, pretty early on, that there are no subspecies level differences among human populations, or there are no chartable differences between large groups of human populations between the level of the species and the level of the local breeding group. So that immediately then calls the race idea into question, and an examination industry and history of thought about the genesis of the race notion, pushed me farther down that road. And then I began, at some point, to recognize the work that race does... And I'll add a parenthetical. I have family roots, I mean, not only in Cuba, but also in South Louisiana, and if there are any two places in the world that show the folly of the race idea, it's those two. So I mean, once again, I'm in the right place in the right time , and paid attention. And often, again, that's better than being smart. But I began then, I guess around the time that we were assistant professors, thinking that, well, the social work, or ideological work, that race does as a category is masking, but it's masking in a particular way. And then I began, in concert with one another of my colleagues at Yale, who's also my colleague at Penn, thinking about what we began to call, "Discourses of ascriptive difference and of hierarchy," and the functionalist sounding foundation for this view is that hierarchically organized social orders don't depend just on coercion. They can't survive just on the basis of coercion. And what happens along the way, it's kind of evolutionist account, though again, I apologize for the extent to which it seems functionalist, but is that the discourses emerge and become common sensical to the extent that they harmonize with the world views of the people who run things, that contend that... Or that purport like to naturalize existing patterns of hierarchy by basically arguing "just so" stories. That, so society is functioning fine because everybody... So the first rhetorical move is to taxonomize the population into categories, which are then reified as groups, okay? And then, having done that, then the next move is to attribute characteristics and features to the groups, thus an artificially constructed, that explain why they are where they are in the social hierarchy. And from that perspective, and I think it's really important at this moment in particular, at American intellectual life, and frankly in the political discourses that are predominant in elite colleges at this point, to keep in mind that race... Well, this is my argument anyway, so I'm going to lay it out there. whether you keep in mind or not. But that the key notion here is the genus, right? To put it like in the main Darwinian terms. The genus of discourses of ascriptive hierarchy and what those are, are "just so" stories, that sort populations on the basis of what they supposedly are instead of what they do. So, of course, a Mexican does the yard work because Mexicans have what would later be understood as the gene for yard work. But I want to stress the genus because race is one species of that genus, but it's not the only one, right? I mean, gender is like another, obviously. Sexual orientation can be another. In the US, in the 20s and 30s, and this is one of the reasons I like to study the eugenics movement, is feeblemindedness, or inborn criminality, were discourses that had the same power and force that we understand race and gender to have. And I think if nothing else comes out of this evening, if six of you... Because I'm looking at the size of the crowd and I've spent my entire life lowering my expectations. But if six of you, going forward, keep in mind that race is not the single discourse of invidious difference that trumps everything else, no pun intended, then my work here will have been done.
- Can I ask just one followup? And you can give me that elevator pitch answer to this, just a flat-footed question. The way you guys have described the concept of race, it reminds me of the concept of a witch. I don't use the concept of a witch, but we all use racial categories. You guys use racial categories, I do. Why haven't we thrown it out, like we throw out the defective concept of a witch? We don't say, "That person's a witch, "that person's not a witch." We don't classify people like that.
- We don't now.
- Right.
- But we're in Massachusetts, and you may recall that we did. And I grew up in Ghana, I can assure you, I'm involved with a not-for-profit, one of the things it does is to spend money on camps for women accused of witchcraft in Northern Ghana, to keep them away from people who will otherwise beat them up or kill them. In that context, it would be profoundly unhelpful not to recognize that there's a category of people to protect, and that you might as well call them witches because everybody else is going to witches. Even though I don't believe, obviously, in witchcraft. So you need an account, of course, of what the categories are that are being used in social life. You have to understand them correctly, but of course, you need them. And given the way our society is racially formed, you've got to have those languages... You've got to have some language to talk about these things, 'cause you've got to be able to do criticism. You got to be able to keep track of differential rates of imprisonment and incarceration. You've got to be able to show that cops approach the people who are racialized one way. There's a nice study in the National Academy of Sciences proceedings which just looked at the cameras on the bodies of cops doing police car stops in, I think, Oakland, in California. Cops... It doesn't matter what their racial identity is. Cops approach black drivers differently from the way they approach non-black drivers. You need a language to be able to talk about that, and you need to be able to name the people who are being racialized one way and treated one way, and the people who are being racialized in other ways, and being treated in other ways. Of course, there are many. There's not just two races. So that's why we talk about it. I usually prefer to talk about racial identities just to keep, right at the front of my mind, as I'm thinking about it, that these are these socially produced categories, and these socially produced categories have certain properties. One of them is that once you see them that way, you don't have to have an answer to certain questions. So here's a question you don't need an answer to, "Is so-and-so really black "or really white?" You don't need an answer to that question. The question you need an answer to is... Questions you need the answer to are, "How are they being treated? "How do they think of themselves? "Who are they in solidarity with?" I mean, there are lots of questions to ask, but because it is a myth, you are not obliged to have a correct answer to the question, "Where exactly do the boundaries lie?" And this is not just the point about race, of course. I mean, we've just gone through a social process of learning how important it is not to think of the gender system as biologically binary, and therefore, as it were, again, one of these things produced by nature. It's not produced by nature, right? Nature plays a role in it, just as nature plays a role in determining what color your skin is, but that's not what race is and your sexual organs aren't what gender is. And so, we need names of these things, and in careful analytical contexts, we need to... We need to distinguish between committing yourself to a race thought and committing yourself to the idea that there are racial identities, for example. We need to do that. And I'll say one final thing; These are, in our country, these identity notions are in use in struggles, in actual political struggles. One of the besetting sins of intellectuals in actual political struggles is fiddling around with the technicalities of getting the stuff right, rather than facing the big issue. So it's not helpful, in my view, in the context of anti-racist struggles, to spend too much time tussling about who's what and what the correct account is of who's what. Du Bois once said... WEB Du Bois once said something like this, "The Negro knows his place. "He is in it." So you don't need... And Du Bois was a very sophisticated thinker about these questions and had views about all the things we've been talking about. So yes, we have to talk about concepts that are there, in the way in which in Ghana, I might as well just talk about witches because, as I say, there are these women who will be dead if we don't do something to create camps where they can escape from the communities that are trying to kill them.
- Yeah, and I would add... But yeah, of course, I agree completely, and I'll pick up on the Du Bois point because I was just thinking about this. So in "Dusk of Dawn," there's a chapter in which Du Bois lays out an apocryphal dialogue with a foreigner, to whom he's trying to explain the race idea. And he introduces one definition, or one taxonomic construction, after another, and each one winds up being argued away. All of the physical differences turn out to be chimerical, and all the other abstract stuff. So finally, he says to the interlocutor is that, "a Negro or a black man," I forget which frankly, "is someone who must ride Jim Crow in Georgia." And that's like the quintessence of social constructionism. And I, a few years ago, during the Rachel Dolezal controversy, I wrote an essay about this, the thrust of which was a contention that you can either accept Jenner's claim to be a woman and Dolezal's claim to be black, or you can reject them both, but you can't treat it like a smorgasbord. You can't accept one and reject the other, because both are rooted in social constructions that defy concrete definition. And each calls forth what... Each attempt to call forth a definitive characteristic, also calls forth a big, "Well, according to whom? "Who says?" But I want to mention too, my other thought about this before Du Bois came up that I got into studying race ideology in a direct way at a very particular moment. At the beginning of the 20th century, there was... I mean, I know this is the chapel, but can I say an "asshole"?
- You just did.
- Well, I mean, there was an asshole in California, named Ward Connerly, who was a right-wing operative, who had pushed a ballot initiative in this horrible system that they... What they still have in the state of California, that ironically was a product of a capital P, "Progressive" government. But this ballot initiative was called "The California Civil Rights Initiative," and the name was Orwellian. So I learned along the way that what this initiative would have done was prevent the state of California from keeping data by race, with two exceptions, criminal justice and public health. So I thought, "Okay, well, "you couldn't imagine a more ass backward way "to approach this." So I, being the kind of academic that I am, set out to write an op ed for one of the California newspapers to point out what the folly of this notion. But I also thought that, before I did that, I should check on opposition's website to see how they were playing it. And to my chagrin, I learned that in the public health section, or tab, of the opposition ballot... I mean, the opposition's website, they actually argued that Connerly's ballot initiative, if it passed, would make it impossible for us to track diseases that only we get. And I thought, "Okay, well, "I can't write the op ed piece now "because it could give aid and comfort "to the opposition." But that's what led me to think, "This is like a deeper intellectual problem, "that also clearly does a lot of political mischief." And I've been trying to work my way around that ever since. But I guess, the other thing that I would underscore is that it's very important for us to make a distinction, as you point out, Anthony, between categories of practice, which is the way that we all use race, and categories of up of analysis. And the trouble with confusing them is... Well, is loss of analytical clarity and precision. So I guess that's an answer, right? Well, yes, it's an answer, but is it an appropriate answer?
- I want to ask both of you about... Each one of you about one of your writings. And I know we're sort of... We've only got about 15 or 20 minutes before I want to open it up to--
- Oh, wow. So like we really have--
- You guys have been talking about,
- We took the opening kickoff and ran out clock.
- Maybe I'll start with you, Professor Reed. So this is what we talked about this morning, but I think it'd be good to present this argument in front of a full house. So I'll put your thesis paradoxically, this is the thesis of your paper, "The Trouble With Disparity." The thought is, "If you really care about racial justice, "about getting rid of racial disparities, "like the racial wealth gap, "or the disparities with respect "to the effects of COVID, "or the disparities with respect to police violence, "you should stop focusing on race." That's the paradoxical version of a thesis. Do you want to explain that thesis and the argument for it?
- I'll try. So, yeah. So I'll start out with the COVID disparities, right? Since they're fresh for us all. And at the beginning, I suspect, like a number of you, even... Well, these are Amherst freshmen, so they're not really freshmen. They were already ahead of the game. But have noticed, from pretty early on, that the earliest reports about where infections and deaths were clustering took on a racial caste. Black people were infected at higher rates. Black people died at higher rates. And then other groups eventually began to join the party, basically. And my concern about this, especially as somebody who studies and teaches the history of race ideologies was, "Oh my God. "What's the potential here for mischief?" And it seemed very, very great. And in fact, it did not take very long. And I think, one of the first people to say it out in public was a US Senator from the state of Louisiana, where else? Who suggested that, "Well, there's something about black biology "that would explain the disparity." And there were several factors that were worked there, one of which is that most public health data in the US are not collected by income. Race, and most public health research, takes race as a proxy for class. So there's a tautological aspect of this too. "Where you look for race, you find race." And that has been the history of race ideology since the 18th century, right? When race, ideology, Kendi, and Afro pessimist, notwithstanding, was basically born in the 18th century. So there was that problem, right? But there's also like the misplaced concreteness. So that the focus on racial disparities around COVID really led to a couple of unhelpful responses. One of which is the hand wringing that the liberals do. "Oh my God, so... "This is bad. "Blacks have it worse, "blacks have it worse, "and blacks have it worse," which is not a political program, as an alternative to a political program. But the other response was that... Was that we've set into motion... And this is the second or third time in the last 30 years that something has triggered this; it set into motion debates about what it is about black people that made them the particular targets. For those of us who, once again, just pay a little bit of attention, look at who brings the packages to you, for instance, I mean, look at who's taking the subway to work. We can see pretty clearly that race was a proxy for something else that was going on here. Eventually, the research catches up with the social reality and it turns out that well, actually, blacks and Hispanics are more susceptible and have worse outcomes because they work jobs that engaged them when out in public, that they were less likely to be able to sit home and schlep through this dystopian Shangri-La, that we've all been able to do for the last year and a half. They were more likely to live in crowded conditions. They were more likely not to have access to healthcare. So it turns out that race was not only a screen, but it's almost like a cover story, and got in the way of making the kinds of arguments and the kinds of proposals that could actually have made people's lives better. So that's just COVID. Another one that I like to draw on, like it's old, but I think the bulk of you, if I can count properly, were maybe only barely born when Hurricane Katrina hit the Gulf Coast. But like in the early days, months, weeks, right after the storm hit, the nation rediscovered racial inequality and injustice on the Gulf Coast and in the city of New Orleans. one of my reactions was, "Well, I don't know where you thought that that woman "who turns down your bed cover "in the French quarter hotel goes "when she gets off work, "what kind of money she makes, whatever." But it turns out there too, that the better predictor than race of infelicitous outcomes, every step along the way, apart from being flooded and displaced, because the water, it was like an equal opportunity threat. But from the terms of displacement, to how long the displacement lasted, to who was able to come back to the city and who wasn't, the best predictor at every point along the way was access to resources prior to the storm. And this is yet another way that race clouds what the actual sources, or the actual mechanisms, are that reproduce inequality. Now, I'll say this about the disparity focus in particular, and this may feel provocative, doesn't feel especially provocative to me, frankly, but who am I? I don't think that it is. So we've been hearing a lot in recent years about the racial wealth gap, right? Well, it turns out... Well, but a couple of factual dynamics are or at work here that are kind of interesting. One is... Oh, so you also have heard that the racial income gap is exactly the same as it was in 1968, but when you decompose those gross data, you find a couple of things that are interesting. One is that... The milder one, so I'll go with that first, is that with respect to the racial income gap, it turns out actually that between 1968 and 2016 and '17, Black Americans, in the aggregate, had gained in income. They'd moved up, I think, nine or 10 deciles, or... Not deciles.
- Percentiles.
- Yeah, right. But those gains were obscured, or countermanded, basically, by the radical increase in overall income inequality. So that the actual gains that black Americans had made in the economy, which frankly, are gains that you would expect once, again, if you can keep your eyes open and see black people who are working jobs that they wouldn't have worked before, and in positions of authority, etc, etc, captains in the fire department, for instance, which is the place I like to look. Then, you would wonder, "Well, "how can there be so much evidence of improvement "in living conditions "and the middle-class jobs and lifestyles "among black people, "and the ratios of new black "to white income haven't changed?" Well, it turns out that the last 40 years plus, at this point, of a political economic program that's focused on encouraging a a regressive economic redistribution upward, to make rich people richer, is what gives the impression that blacks haven't gained. And that points to another problem, which is, again, that's got to do with the fictive character of the racial categories, because white people haven't gained either, right? Most whites, right? It's like, rich people are richer, fabulously richer, than they've ever been before, no matter what their color is. So that kind of leads us to the wealth gap, where things got a little more dramatic. Turns out, decomposing the wealth gap data, and we've all seen how much blacks have two percent of the wealth that whites have or whatever, well, it turns out that 75% of so-called "black wealth" is held by the richest 10% of black people, and 75% of so-called "white wealth" is held by the richest 10% of white people. And that the bottom 50% of both blacks and whites have no wealth whatsoever, zero, punto, nothing. And I think that you can close... If you eliminate the wealth gap, between the bottom two-thirds, I believe, of each category, because I'm not going to call them groups, it turns out that over 97% of the wealth gap would remain. So what that means is the "racial" wealth gap is a wealth gap, or is a gap between the wealth that rich black people hold and the wealth that rich white people hold. And so, to put that in perspective, as a project to be concerned about, and I think Amherst was like Williams years ago, back in the 80s, where like 60% of the graduating class, class every year, went to work on Wall Street. So now, might be the time that I would need to have a buffer, like some wood. But the fact is that from an abstract standpoint of notions of a just society, a society of Beckerian equality of opportunity, can be as defensible as any other. And that would be a society in which it would be possible, as Walter Michaels and I put it often, that one percent of the population could control 90% of the resources but the society could be considered just if 12% of the one percent were black, if were half women, and 14% Hispanic or whatever. And that's a notion of a just world that is as defensible, again, in the abstract, as any other. And from an institution where 60% of the graduating class goes to Wall Street, that might seem like the state of nature, basically, or heaven, but one of its limitations is that to the extent that one contends that pursuit of narrowing those gaps, those punitive gaps, and thus pursuit of the ideal of the Beckerian model of a just society, to the extent that the defense of that strategy is to help black people or brown people, well, it doesn't work because a world in which one percent of the population controls over 90% of the stuff, even if 12% of that one percent are black, say, would still leave the vast majority of black people, even more black people that is currently the case, at the bottom.
- Great. I think, instead of getting you to respond, maybe I'll ask Professor Appiah the question I wanted ask about "Honor Code." So this is, I think, going to be our last question before we open it up to Q&A. So if you're thinking of asking question, this might be a good time to get in the queue. So I wanted to ask you about your book, "The Honor Code," because in that book, you argue that when you look at the history of moral revolutions, like the end of dueling or the end of the Atlantic Slave Trade, what you see is that people could make moral arguments until they were blue in the face, everyone knew the moral arguments and you didn't get change. You needed some extra ingredient, either a sense of personal honor, or maybe national honor, where that's a different notion than just a moral notion, and that was the sort of missing ingredient. And I was wondering both if you could just sort of explain that argument, but also whether you thought the civil rights movement would count as a case of moral revolution in the sense that you have in mind, and if honor played a role in that, or whether we're in the midst of a moral revolution right now with respect to the various anti-racist measures.
- Yes, so the basic idea is this; that I looked at a number of cases, the end of the foot binding in China, the current movement against honor killing in Pakistan, the British working class abolitionism, and dueling. And in each of them, the central moral arguments are in place long before anything happens. Arguments against slavery are as old as slavery, but by the 18th century, there's just a whole slew of them. And the first criticisms of foot binding in China happened in the 11th century, which is about 100 years after it starts. I mean, the first serious... So the arguments are there and people know them, and they're obvious, some of them. What could be in favor of a practice that involves causing intense pain to three-year-old girls? I mean, just described that way, it's obvious that there's an argument against it. Maybe there's something in its favor as well, but right, just... And it's not that people didn't know this. We have accounts of literati who left their homes for six months while their daughters' feet were being bound 'cause they couldn't stand the sound, the noise, it was too painful for them. So you've got all these moral arguments in place and nothing happens. Question, what does it take to make something happen? Well, in each of these cases, you get a social movement, abolitionism, anti-foot binding movements, anti-honor killing campaigns, in which people come to identify very, very deeply with the project. They think of themselves... They don't say "I'm in favor of abolition." They say "I'm an abolitionist." And they go to meetings with other abolitionists. In England, in the late 18th century, ordinary people would go and listen for eight hours to speeches ag... They would go to the local town, they would sit there, listen for eight hours to speeches describing the horrible conditions in the Middle Passage, or the horrible conditions on plantations in the West Indies or in the Americas. Why do you do that? Because you deeply identified with the project and you feel that you've got a stake in it, and the stake in each case is, depends on who you are, but the stake in the case of Britain was... A central stake for working people was slavery says that manual labor is to be done by a despised class of people. It's an attack on what was growing in the early 19th century in Britain, which was a very strong sense of pride in being working class. Working class men's associations developed, they organized, they socialized, and above all, they resist the bourgeois and upper-class stigmatization of the very thing that defines them. And so, by the middle of the 19th century, they mock the uselessness of anybody who doesn't make anything... Who doesn't make anything, who isn't a worker, a manufacturer. So against that background, abolition is about expressing your own sense of the value of people of your kind. In the anti-foot binding case, it's a sense of the pride of China in its reputation in the community of nations, in a sense that this practice leads other people properly to disrespect us. It's not just that they disrespect... Who cares if other people disrespect you? But they're disrespecting you for something you know is wrong, right? So it's that kind of investment in it that gets people in social movements, doing things. It's a sense that "I have a stake in this," through something. Through being working class, in the case of abolition, in British abolition. In the case... But also in British abolition, there were people who were proud as citizens of Manchester to be fighting the slave trade. And they sent... They were proud because they sent the largest petition to parliament against slavery, against the slave trade. So you've got to get people involved in that deep way through their sense of who they are. Now, you need the moral arguments because their sense of who they are is "I'm on the right side, "and I understand what the arguments are," right? So I'm not saying the morality stuff is irrelevant, you've got to have it. But until you connect it with people's sense of who they are, which I think you can do through these honor notions, through the sense of gaining a sense of entitlement to respect by being in the movement that's doing the right thing. Now, this can go wrong. I mean, it went wrong in this country in prohibition, right? These very same mechanisms led to a completely disastrous policy, which was fortunately, or unfortunately, was so disastrous that we were able to do the very rare thing of undoing a constitutional amendment to put it right. So there's no guarantee that this mechanism can't be used to do bad things, but I think it can be mobilized. You should look to do it. If you want to make a big change, if you want to... Get the arguments aligned, sure. So you need to say that the current distribution of material wealth in the world and in this country is preposterously immoral, and you need to explain why both the mechanisms by which it's produced and the fact that it produces a world in which some people can't live a life of a material dignity, right? Those are the things... You need to know those things, but then you have to get yourself invested. And that means you have to work with other people, you can't do it on your own. It's not just a matter of sitting around and thinking something is wrong. It's not just a matter of writing a check to Oxfam or the ACLU, or whatever it is, some organization is doing something about one of the things you think is wrong. You've got to get engaged. And then, there's a mechanism by which there are sort of cascades. So once enough people feel this way, then it becomes normal to feel this way. And then, the people that don't feel this way feel left out and they join in. Is this happening in relation to anti-racism? , we will see. I think backsliding is going on all over the place already, from the promises that were made after the death of George Floyd, the murder of George Floyd. On the other hand, I've been involved in things in institutions that I think have done some important moves in anti-racist directions. But just a final point, just to agree with Adolph about something, if you do something for working people in this country, you're doing something for black working people and brown working people, but you're also doing something for white working people and that's, among other things, strategic, 'cause there's a lot of them. And if you can get the people who are really being... Since we can say "asshole," we can say "screwed." If you get the people who are being screwed together, instead of allowing themselves to be divided in part by race, racism, racial ideology isn't the only thing that divides people but it's one of the things that divides people, then, A, you'll make life better for more people, and, B, you have a better chance, I think, of actually creating a movement of the sort that will have this kind of positive sense of, "I'm on the right side, "I'm going to work for this," that is necessary to turn an abstract moral notion into a change in social life.
- Thank you. So I wanted to open it up to questions now. So it's time for people to ask whatever questions you might have. Oh, there we go.
- [Jayden] Hello, my name is Jayden. I guess a question that I have, especially since we're sitting in a college, is what the two of you think about racial slurs and the use of racial slurs by people who are not a member of those groups, especially since the both of you have argued that race, and have proven, I guess, that race is not a real thing. And considering that language is also just made up and we apply meaning to it as we want, do you believe in the notion that only the groups affected by slurs or other types of racialized language should be the only groups using them? And what has been the language policy in your own classrooms as you teach?
- Yeah, that's an interesting question, especially the last part. Well, so I've got an official position and a pragmatic position, right? The pragmatic position is that if somebody hurls a racial slur at me, depending on the circumstances, I'll either hit them or I won't. But I mean, that's not justifiable, right? I mean, that's an existential reflex that has to do with history, upbringing, whatever. The reason that I'm hesitating though about the question is that it... I know the question emerges from this particular historical moment, and it's not just on this campus, right? It's all over. And I've, I've been disturbed by the inflation of the language of trauma, and especially in academic institutions over the last couple, three decades. And maybe, this is just because I'm an old guy, and I think about things like what it must've been like for Charles Johnson to go through the University of Chicago in 1920, and think, "Well, really?" But that the language or... And one problem that I have with the discourse of containing potentially offensive speech is kind of par... Well, it feels parallel to me, ironically, to to the conservative judiciary's focus on intent with respect to enforcement of the civil rights law, or worse, with the so-called Castle Doctrine, or Stand Your Ground laws, where all a perpetrator has to do is say that I felt threatened and that justifies my killing of a stranger who was unarmed, and whom I have even possibly antagonized or assaulted. And there's just something about the spread of this particular kind of discourse of individual, or group dressed up as individual, or category dressed up as group, and what a category dressed up as a group is, is a proxy for an individual, right? It's a bit of a digression, but I'll say, and my son often makes this point that the black American population is the size of the population of Canada. And it's useful to think about that for a second, and to consider that a statement that, "Canadians want X" is kind of preposterous on its face because we understand that there's diversity and tensions, and all kinds of differences that are compacted in this category of Canadian. Blacks is the same thing, right? All right, so I'll close parentheses around that. But I don't know. I really don't know what the proper, I mean, response is, and that's one reason I'm not an administrator. I can think of a couple of others possibly, but that's one for sure. And I understand it's a minefield, but I do think it's useful for us to take steps back from what is often enough a potted discourse of hurt, and trauma, and offense, and the rest. I mentioned a couple of times today that when I was a kid... Speaking of being in Massachusetts, what the Arthur Miller play, "The Crucible," had a central place in my family, because I grew up in the McCarthy era in a household that was concerned about it, and I've never lost that concern. And I feel like moral panic is always ugly, and frightening, and potentially dangerous, whether it starts from the left side of the bench or the right side of the bench. So I'm afraid. You've asked me, basically, what time it is, and I've given you a disquisition on how to make a watch, but I got nothing better.
- Well, I think this is... It's wrong to insult people. And some insults for certain purposes are more powerful than others because they stand in a history where the insult was associated with lynching, let's say. And other insults are less painful because they don't have that history behind them. Decent and sensible people don't do that, don't use insults of sort against other people. And decent insensible people know enough, if they live in this society, to know which the ones are that do the damage and which the ones are that don't. You asked whether I thought it was okay for people in a group to use words that, if used against that group, would be a slur. That's... I mean, the answer is yes, it can be okay, because that's how "queer" got from being an insult to being an affirmative thing, taken up by large numbers of people who are not mainstream, straight, cis people. And that's the way the N word is used in some African-American contexts. It's been turned into an expression about brotherhood in certain contexts. And now, do I think that... So in the context of the university and the college, insults are particularly damaging because in a classroom, we're thinking hard. We're already at the edge of our cognitive capacities, and adrenaline, and the sterols, the stress hormones, reduce even further your cognitive capacity. And so, they make it hard to do the very thing that the class is for, which is to think hard at the edge of our capacities about things. I tell my students that if they feel offended by something, they should probably, before they say or do anything, just stop and recognize that they're not in their best cognitive frame of mind, that they're not going to be doing their best thinking. That's one of the things the insult may have done to them, so I'm not saying it's their fault, but it's a fact. And you've got to... Self-knowledge is one of the things that a college education is supposed to increase. So you've got to think about that. So you asked me, I haven't even been... He's been chair of the department. I've never even been chair of the department. So...
- In fact, I haven't either.
- Okay, good. So that's why they asked us up here, because they knew we couldn't administer our ways out of a paper bag. So I don't know what I think the right solution is in terms of... But I share with Adolph a sense that the language of trauma and the language is essentially a language which treats the harm done by an insult as like a psychiatric trigger for someone who has been psychologically damaged by having an explosion on the battlefield, real post-traumatic stress. I think that's an inflation. It's insulting to people with PTSD to say that the bad feelings you have when someone in insults you are like the reliving of a terrible experience that happens, apparently, to people with PTSD. it's not that. It's bad, and I just said you shouldn't do it to people, but it's not as serious as forcing a woman to relive an experience of sexual assault, which you might do if you talked in certain ways about women's bodies. Even in a classroom, you might do that. So, of course, you should be aware of all of this, but I don't think that... I think there has been an inflation of the sort that Adolph was talking about. And maybe, I would say, that the most worrying inflationary aspect of this is that it's not the biggest harm that's being done by race in our country today. The biggest harm that's being done by race in our country today is being done to obscure... Is its role in obscuring the reality that we are doing a terrible job of dealing justly in the economy and in social life with people. Black people, yes, but people. And I'm not... Racism is real, and we need to do something about it. And Adolph isn't denying that. But he's saying that if you care about the people who are damaged by racism, you might want to think that they are... That their objective conditions would be improved if we did some things about their class position, and I agree with that. And I think, to some extent, that the discourse about the N word and so on is a distraction from that. So yeah, it's bad to be offensive, sure. But I'm not sure it's the... I think it takes too much... It's taking up too much of our minds, this issue, when we should be thinking, with some of our minds, at least, about some other things that we're not thinking about, let me put it that way.
- Let's see if we can get one more question in, I think. Ross.
- [Ross] Hi, I'm Ross. I was going back to Professor Shah's question about the witch, it seems like race was the witch as a myth. I was wondering, it seemed to me that you brought up this great example of women in shelters in Ghana, and you said, "Well, witchcraft is just present, "people are accused of it, "and we need to talk about it." But it seems to me that if you take the perspective of the women in Ghana, if you refer to them as witches, it might seem, in a way, they would respond to you and say, in some way, you've deeply misunderstood by calling them, which is deeply misunderstood part of the problem. Part of the problem is that they aren't witches. So I guess my question is, wouldn't it be helpful to not just kind of... It seems like you're saying we should somewhat accept... Yes, race is a myth, but people talk about race. So we should... We just kind of need to accept these constructs and talk about them. Wouldn't it be at least helpful to correctly grasp the problem to stop talking about... It might sound strange, but stop talking about black people but maybe people accused of being black, maybe to use the witch analogy?
- Well, I mean, when I sort of switched to talking about racial identities, I thought that's what I was doing. I thought what I was doing was saying, "Look," again, to borrow from the sociologist here, "People are racialized, "they're treated in ways "through these categories, "we should, especially in the academy, "demystify the categories. "We should explain that "the categories are mystifications, "and that they presuppose falsehoods." That's what it means to be a mystification. But we do need... You can't... We need to be able to talk about the ways in which race does harm, and we need to be able to talk about the people that it harms, and the people that doesn't harm, and the people who play roles in causing that harm. And in our everyday social life for the purposes... For the languages of everyday life, we use these racial categories to do that work. But we are also sitting in our classrooms, telling people how to understand these categories and saying, for example, that once you understand them correctly, there are questions you can't ask, like, is, "Is President Obama really black?" This is not... The answer is anybody who knows anything serious about race knows that isn't a serious question. But is he black? Sure. I mean, black for purposes of life at Pomona and Columbia and Harvard, sure. I mean, the places he went to school. So...
- Yeah, I'll just add briefly a little bit, a couple of things. One of them, I apologize for in advance, because it's a plug, but I have a book that'll be out at the beginning of February and it's like an alternative to a memoir, but it's called... Well, it's a rumination on the last two or three decades of everyday life in the Jim Crow South. And it's called, "The South: "Jim Crow and Its Afterlives." But within it, the reason I mention, to the excuse I have for mentioning it now, is that there's a chapter in it on the notion of passing. And part of my argument is, and like I said, I've got roots in the south of Louisiana, where it's like not an anomalous practice, right? But one of the points I make in it is in addition to the fact that passing was often quite mundane and an instrumental act, like to get a box of beignets from a store that wouldn't let blacks enter, that kind of thing. And I mean, not at all the stuff of with the overheated accounts in fiction and films and the like. But also, that the defeat of the Jim Crow era made passing obsolete, because there were no stakes attached to being black anymore. Not the material stakes that there had been under the ancien regime. And one of the problems in contemporary discourse about race is a tendency to adduce clearly racial crimes and sins in the past from slavery or Jim Crow to work in lieu of explanation for claims that structural inequalities that produced disparate outcomes by race are in fact to be understood as racism. But I wanted a point to make... Well, two quick points. One about trauma is my sense is that in contemporary discourse about the traumatic effects of slights and insults hinges on what's almost like a Jungian understanding of racial memory, right? So that what makes me think of slavery traumatizes me, and I'm coming to a more radical view of this idea of heritage. That your heritage is what's happened to you when you were alive. And when my son, who also can be an asshole, was a TA when he was in graduate school, when students would submit papers that used the first person plural to discuss sharecropping or slavery, he's the writing the margin, "So were you alive in 1880?" But also, when he was in college, a couple of miles up the road, he gave an update to the Du Bois line about who a black man is, and his update was "That you are "what the police think you are," and that can solve the racial identity question.
- Thanks, you've given us a lot to chew on. Thanks for a wonderful talk.
- Thank you.