Transcriber: Joseph Geni Reviewer: Camille Martínez
What if you own a hotel,
and one of the key principles in your mission statement
is a commitment to treat all employees and customers equally,
including on the basis of gender and religion?
And then a large group books an event at your space,
and when you look at the booking, you realize it's a religious group,
and one of their key principles is that women should never leave the home
and should have no opportunities for professional development outside of it.
What do you do?
Do you host the event and get criticized by some,
or refuse and get criticized by others?
In my work, I counsel organizations on how to create rules
to navigate ideological disagreement and controversial speech,
and I defend my clients,
whether in court or from the government,
when their actions are challenged.
The structures I recommend
recognize the real harms that can come from certain types of speech,
but at the same time, seek to promote dialogue rather than shut it down.
The reason is that we need disagreement.
Creativity and human progress
depend on it.
While it may be often easier
to speak with someone who agrees with everything you say,
it's more enlightening and oftentimes more satisfying
to speak with someone who doesn't.
But disagreement and discord can have real and meaningful costs.
Disagreement, particularly in the form of hateful speech,
can lead to deep and lasting wounds and sometimes result in violence.
And in a world in which polarization and innovation are increasing
at seemingly exponential rates,
the need to create structures for vigorous but not violent disagreement
have never been more important.
The US Constitution's First Amendment might seem like a good place to start
to go to look for answers.
You, like I, may have often heard somebody say
that some form of a speech restriction, whether from an employer, a website,
or even somebody else,
"violates" the First Amendment.
But in fact, the First Amendment usually has little if any relevance at all.
The First Amendment only applies
when the government is seeking to suppress the speech of its citizens.
As a result, the First Amendment is by design a blunt instrument.
A narrow category of speech can be banned based on its content.
Almost everything else cannot.
But the First Amendment has no relevance
when what we're talking about is a private entity regulating speech.
And that's a good thing,
because it means private entities have at their disposal
a broad and flexible set of tools that don't prohibit speech,
but do make speakers aware of the consequences of their words.
Here are some examples.
When you go to university,
it's a time for the free and unrestricted exchange of ideas.
But some ideas and the words used to express them
can cause discord,
whether it's an intentionally inflammatory event hosted by a student group
or the exploration of a controversial issue in class.
In order to protect both intellectual freedom
and their most vulnerable students,
some universities have formed teams that bring speaker and listener together,
free from the possibility of any sanction,
to hear each other's viewpoints.
Sometimes students don't want to meet,
and that's fine.
But in other circumstances,
mediated exposure to an opposing view can result in acknowledgment,
recognition of unintended consequences
and a broadening of perspectives.
Here's an example.
On a college campus, a group of students supporting the Israelis
and those supporting the Palestinians
were constantly reporting each other
for disrupting events, tearing down posters
and engaging in verbal confrontations.
Recognizing that most of what the students were reporting
did not violate the university's disciplinary code,
the university invited both groups to sit down
in a so-called "restorative circle,"
where they could hear each other's viewpoints,
free from the possibility of sanction.
After the meeting,
the ideological disagreements between the groups
remained as stark as ever,
but the rancor between them significantly dissipated.
Now, obviously, this doesn't always happen.
But by separating reactions to speech from the disciplinary system,
institutions of higher education have created a space
for productive disagreement and a broadening of perspectives.
We're all biased.
I don't mean that in a bad way.
All of us are influenced, and rightly so,
by our family background, our education, our lived experience
and a million other things.
Organizations, too, have influences,
most importantly, the beliefs of their members,
but also the laws under which they're governed
or the marketplace in which they compete.
These influences can form a critical part of a corporate identity,
and they can be vital for attracting and retaining talent.
But these "biases," as I'm calling them,
can also be a challenge,
particularly when what we're talking about
is drawing lines for allowing some speech and not allowing others.
The temptation to find speech harmful or disruptive
simply because we disagree with it
is real.
But equally real is the harm that can come from certain types of expression.
In this situation, third parties can help.
Remember the hotel,
trying to decide whether or not to allow the religious group to host its event?
Rather than having to make a complex, on-the-spot decision
about that group's identity and message,
the hotel could instead rely on a third party,
say, for example,
the Southern Poverty Law Center,
which has a list of hate groups in the United States,
or indeed even its own outside group of experts
brought together from diverse backgrounds.
By relying on third parties
to draw lines outside the context of a particular event,
organizations can make content decisions
without being accused of acting in self-interest or bias.
The line between facts and opinions is a hazy one.
The internet provides the opportunity to publish almost any position
on any topic under the sun.
And in some ways, that's a good thing.
It allows for the expression of minority viewpoints
and for holding those in power accountable.
But the ability to self-publish freely
means that unverified or even flat-out false statements
can quickly gain circulation and currency,
and that is very dangerous.
The decision to take down a post or ban a user is a tough one.
It certainly can be appropriate at times,
but there are other tools available as well
to foster productive and yet responsible debate.
Twitter has recently started labeling tweets
as misleading, deceptive or containing unverified information.
Rather than block access to those tweets,
Twitter instead links to a source that contains more information
about the claims made.
A good and timely example is its coronavirus page,
which has up-to-the-minute information about the spread of the virus
and what to do if you contract it.
To me, this approach makes a ton of sense.
Rather than shutting down dialogue,
this brings more ideas, facts and context to the forum.
And, if you know that your assertions are going to be held up
against more authoritative sources,
it may create incentives
for more responsible speech in the first place.
Let me end with a hard truth:
the structures I've described can foster productive debate
while isolating truly harmful speech.
But inevitably, some speech is going to fall in a grey area,
perhaps deeply offensive
but also with the potential to contribute to public debate.
In this situation,
I think as a general matter,
the tie should go to allowing more rather than less speech.
Here's why.
For one, there's always the risk
that an innovative or creative idea gets squelched
because it seems unfamiliar or dangerous.
Almost by definition,
innovative ideas challenge orthodoxies about how things should be.
So if an idea seems offensive or dangerous,
it could be because it is,
or it might simply be because we're scared of change.
But let me suggest that even if speech has little to no value at all,
that deficiency should be shown through open debate
rather than suppression.
To be very clear:
false speech can lead to devastating real-world harms,
from the burning of women accused of being witches in Europe
in the 15th century
to the lynching of African Americans in the American South,
to the Rwandan Genocide.
The idea that the remedy for false speech is more speech
isn't always true.
But I do think more often than not, more speech can help.
A famous story from First Amendment case law shows why.
In 1977, a group of neo-Nazis wanted to stage a march
through the leafy, peaceful suburb of Skokie, Illinois,
home to a significant number of Holocaust survivors.
The City Council immediately passed ordinances trying to block the Nazis,
and the Nazis sued.
The case made it all the way up to the US Supreme Court
and back down again.
The courts held that the neo-Nazis had the right to march,
and that they could display their swastikas
and give their salutes while doing so.
But when the day for the march came,
and after all that litigation,
just 20 neo-Nazis showed up
in front of the Federal Building in Chicago, Illinois,
and they were met by 2,000 counter-protesters
responding to the Nazis' messages of hate
with ones of inclusion.
As the Chicago Tribune noted,
the Nazi march sputtered to an unspectacular end after 10 minutes.
The violence in Charlottesville, Virginia, and indeed around the world,
shows this isn't always how these stories end.
But to me, the Skokie story is a good one,
one that shows that the fallacy and moral bankruptcy of hateful speech
can best be responded to not through suppression
but through the righteous power of countervailing good and noble ideas.
Thank you.