Articles

Speaking Freely with Ronald Krotoszynski

September 17, 2019


– What is the condition of
free speech in America today? I’m Sanford Ungar, Director
of The Free Speech Project at Georgetown University. And on this video series, Speaking Freely, we talk from time to time
with scholars, policy makers, and journalists involved
in the free speech drama unfolding in America. This time, Ronald Krotoszynski,
a First Amendment expert from the University of Alabama Law School. (powerful music) Professor Krotoszynski, you have written and talked about the difference between how we regard free speech
in the United States and how other countries,
including Western countries, deal with free speech issues. I wonder if you could explain that to me a little bit more. – Sure, in the United
States we have probably the broadest protection
of freedom of expression in the world. There are no restrictions, even on calls to violent revolution. And so we take the view essentially that the worst thing imaginable
is for the government to have the ability to engage in viewpoint or content-based censorship. And it reflects really a
very deep-seated mistrust in government and the ability
of government to improve or enhance the marketplace of ideas, particularly the political
marketplace of ideas. In the rest of the world:
Canada, South Africa, United Kingdom, Germany
France, virtually everywhere other than the say of
Japan, the view is that the government can
actually improve or enhance the functioning of freedom of speech and also the process of
democratic deliberation. And so regulations of
speech aimed at enhancing or improving the political
marketplace of ideas are seen as fully consistent
with a meaningful commitment to freedom of expression. – How do those particular
systems deal with this very thorny issue of who decides? Where do you draw the line? How wise are the judges or
the administrative officers or the people who make this decision of what speech is offensive? – That question reflects
an American perspective. – Of course it does. – It presupposes that
administrators are bad. “I’m from the government,
I’m here to help,” is pejorative as opposed to, “Welcome, oh you’re here
to help; great come on in.” So from a German perspective,
allowing a legislator or an executive officer
or a judge to decide what kinds of political
speech should be tolerated doesn’t produce the kind
of angst that it does in the United States. Even for me, I’m a Democrat. I’m a progressive, but I
worry about the ability of government to write
rules because I think of an us/them kind of dynamic, particularly in the current
political environment. – I think that’s in our DNA to worry about what government will do to us. – Because we’re pluralistic. We don’t have ties of ethnicity, religion. We come from all points of the globe. We have all sorts of commitments. We have all sorts of rural/urban,
secular/religious … When you think about
the divisions that exist in our community, it’s not surprising that people would be
skeptical of government. If you live in Chicago and
polls control the mayorship and you’re Irish, you think, “Oh, dammit. “The sidewalks are gonna be terrible. “The schools aren’t gonna be funded.” And if you’re Polish
you think, “Yes, score.” And so there’s this natural assumption that if they could control government, they could do bad things. In fact, our entire system of government, the Constitution of 1787,
reflects a profound mistrust of government. – Right, but you just used
the example of Germany. And you have written that
the U.S. places less value on dignity and reputation
than Germany does. Is Germany not a special
case because they have seen the worst that can possibly happen as a result of free speech? – You’re exactly right to
posit that the Holocaust and the evils of National
Socialism led Germany to adopt as Article 1 of the Basic Law the inviolability of human dignity. And in fact, Article 2 protects the right to free development of the personality. So Article 1 and Article 2
of Germany’s Bill of Rights protect dignity and free
development of the personality. The German Basic Law though
has been the template that most governments have used in writing new constitutions. Take South Africa in 1996, there again it’s a dignity/equality
based vision of human rights. Canada in applying its
Charter, has essentially said that human dignity and
multiculturalism are … They don’t quite use the word sacrament but they come close to it in decisions of the Supreme Court of Canada. And so while the motivation
for Germany adopting this position is exactly
the one you posit, it has been profoundly influential, and the Basic Law has served as a template far more often than our Bill of Rights. – Other examples, other
places that you think have been successful at mediating, governing speech in a way. – I don’t know that I said
Germany was successful. I think it’s profoundly
unsuccessful in some ways that ought to give us pause. As a theoretical matter,
banning racist, sexist, homophobic, antisemitic
speech is something I would sign onto gladly if
we could rely on government to operationalize those rules
with an even handedness. – Well there you are. You’re being suspicious of government. – Well you have to be
because when you look at how these rules work
even in places like Germany, they’re inconsistently enforced. In Canada for example,
the hate speech laws can only be enforced by the
Federal Attorney General or Provincial Attorney General. And so there’s a case involving a fellow named David Ahenakew
out in I think Manitoba or Saskatchewan. And he’s a First Nation, or
Native American as we would say. He goes on the radio and
says, “Hitler was wonderful. “He killed six million Jews;
I wish he’d gotten more.” He’s brought up on hate speech charges. The conviction is thrown
out for technical reasons and the AG initiates another prosecution. – The AG being the
Federal Attorney General. – Yeah, the Provincial Attorney General. By way of contrast, during
the secession vote in Quebec in the 90s, leaders of
the Parti Quebecois, Lucien Bouchard and a guy named Parizeau went around saying,
“The problem with Quebec “was white people weren’t
having enough babies.” That’s a quote. And that only laine pure, or
white wool, is true Quebec. And in fact, the evening
of the Plebiscites, there was a Latina clerk at
a downtown Montreal hotel. And one of these leaders
berated her and said, “People like you are the
problem with this province.” And no charges were brought. Jacques Cartier and members
of his cabinet denounced Parizeau and Bouchard,
called them racists. But there was never
even a hint that the AG, Federal or Provincial,
would bring a prosecution. Eminem, the rapper, had
been the subject of calls for hate speech regulations
over some of his rap sexism. On the other hand, an
academic named Thobani went after Vancouver and said Americans are blood thirsty killers and
do nothing but reward hatred. And we can make a technical argument about whether Americans are an ethnicity, but the Minister of Culture was there. And there wasn’t even a hint
that this sort of language invoking hatred toward
Americans as a group should be the subject of
a criminal prosecution. – Is that just because anti Americanism is popular in Canada? – Well, but that’s the point, isn’t it? If you’re an American, if you’re an expat living in Vancouver,
and a prominent academic at a government sponsored
conference is saying that you’re a bloodthirsty
killer with murdering instincts, that degrades you. That dehumanizes you. – Well, of course any
generalization like that about anybody anywhere
is always unfortunate and probably improper and
almost always not true. – Correct, Germany’s had problems too. They’re very vigilant on Nazi speech and anti semitic speech. But making totalizing
statements about people of Turkish ancestry
doesn’t lead to the same reliable government response. And so when we look at
how these rules play out, it’s very hard for
institutions that are elected through democratic
processes to apply rules involving content and
viewpoint-based speech regulations in ways that don’t
reflect majoritarian bias. – [Sanford] Right. – There’s been problems in Canada too. They were seizing the inventory
of a bookstore in Vancouver called Little Sisters Bookstore. It was aimed at the LGBTQ community. And these books were available
at Vancouver Public Library but they couldn’t get
them across the border. They were being treated as obscene because you had mid-40s heterosexual Customs Agents looking … – These seen as obscene
by the United States? – By the Canadian government. – By the Canadian government? – Yes which reveres … The word I was looking for was reveres. They revere multiculturalism
and difference. But when the Customs Office was systematically discriminating
against the aesthetics of LGBTQ persons, the court
told the Customs Service cut it out, but didn’t
invalidate the regulation which created this discretion. And to my eyes, it’s perfectly predictable that a Customs Agent,
when you ask them to look for degrading or dehumanizing erotica, would view erotica that’s
foreign or different as dehumanizing or degrading. – That’s not surprising
that that would happen. – It’s entirely predictable. But the Canadians don’t seem as worried about that problem as they should be. And the thing that was really remarkable about the Little Sisters Bookstore case, you would think if you’re
committed to multiculturalism that you would adopt the
aesthetic of the other and ask within the community
to which this material is directed is this
degrading or dehumanizing. And if the answer is no,
then it should be protected as speech under Section
2(b) of the Charter. But that’s not at all how
the majority framed it. Justice Iacobucci said that
should be the framing device and we should use a
minority community metric to apply the degrading
or dehumanizing test. But that’s now what the majority did. And so as I look at how
countries like Germany and Canada and South
Africa operationalize rules against hate speech, I see a
very troubling inconsistency that’s predictable and the
product of government agents selected through democratic processes, directly or indirectly, bringing to bear the points of view of their constituents. – So would you favor
content-based regulation of speech in the United States? – No. – Not at all? – Well, no. Let me hasten to add though
that when we talk about content-based, we have to be very careful. Are restrictions on campaign expenditures or contributions content-based
speech restrictions? I would argue they aren’t to the extent that monetary limitations apply
to all potential speakers. They’re a structural regulation. Net neutrality, is that content based? No, you have a choke point on the on ramps to the marketplace of
ideas you’re regulating. We did that with the telephone companies when Ma Bell was a monopoly. We did that with cable, the ’92 Cable Act has forced access to cable platforms, limits the number of affiliated
stations you can put on, has leased access requirement provisions, PEG requirements, public
educational governmental channels. So we told cable system
operators, “Look at, “you have a choke point
to information and ideas. “We’re going to regulate
that to ensure access.” – But I think the theory there was that the spectrum was limited,
that this was a limited good in the control of the government. And so it had the right to to regulate, to control access. – It’s a kind of antitrust idea, sure. In the case of the telephone
company under AT&T, it was thought to be a natural monopoly if you wanted universal service. Cable is not a monopoly. It’s a local monopoly even if
there’s national competition. But I would argue ISPs,
it may not be a monopoly but it’s an oligopoly. And you could defend net
neutrality regulations on a theory of antitrust and access. Because there’s a strong
incentive to self deal. If you own Netflix, then
you stream Netflix faster. If you don’t own Netflix, if you own say Time Warner Comcast Cable Systems, you stream that content more quickly. – Now we began this
conversation talking about the sort of anything goes
nature of free speech in America compared to other countries. – Well we might want to stop
there for just a second. – Go ahead. – So Fred Schauer had
a really great article in the Harvard Law
Review about 14 years ago on the salients of the First Amendment. When you buy an RX, a prescription drug, you get the little box and
there’s this little fold up that ends up being this big. That’s compelled speech. The FDA requires the
maker of drugs to convey certain information about the
efficacy and side effects. – In the interest of safety
and health and efficacy. – Yeah, but it’s still compelled speech. When you consider buying
stock through an IPO, the SEC has regulations out the ying yang regarding mandatory disclosures. That’s compelled speech. Rules involving commercial
fraud or copyright, all those constraints
speak fairly directly. And we don’t generally
frame those as implicating the First Amendment in a serious way. I think where’s there’s a risk
of government featherbedding, where there might be an
incentive for the government to tilt, or skew, the
marketplace of ideas, the First Amendment comes into play. But in areas where the possibility of government featherbedding is remote, like with RX disclosures, Federal courts and the
American people don’t even really see those as speech regulations. When you get that insert, do you think, “Rrrr, the government
is compelling this poor “Lilly company to … ” – I actually don’t feel that way at all when I get the insert. I don’t necessarily read it, but I think if I need information it’s there. And the pharmaceutical
industry we all think has tried to get away with things. So I think of that as a protection imposed by the government. – A consumer protection, anti fraud. And I do too. And I don’t see that as
particularly First Amendment … – Probably neither one of us
reads all that unless we … – I sometimes open them
just to see how much small print they can fit on the foldout. – [Sanford] But if we
needed it, it’s there. – Correct, but it is compelled
speech from the government. – I understand that. – And if we thought all
speech should be … And we tell them you
can’t say this grows hair if it doesn’t. They have to do clinical trials. And there has to be proven efficacy. We even tell pharmaceutical manufacturers that they can’t market,
except in the Second Circuit, for off label uses even if there’s clinical evidence of efficacy. So we restrict speech pretty
broadly in this context. And again, you can say
there’s a compelling government interest, but
the courts don’t do that. They just sort of hive it
off from what we think of as the world of freedom of speech. So I do think that freedom of speech where the government might
want to propagandize us or manipulate us or in some way trick us, sneak something by us, courts
have beady-eyed scrutiny for that sort of stuff. But there is a world of
regulations of speech in this country. – [Sanford] Is that what you
call free speech paternalism? – Well yes, we could call
that free speech paternalism, efforts to ensure that
information that’s helpful and necessary to consumers
is available to them. Also where there’s a problem
with collective action, right. If you or I called Lilly and said, “Tell us what the efficacy is. “Show us the studies.” We wouldn’t get very far. If the FDA says you
can’t legally sell this in the United States
by prescription unless you tell people this stuff,
then Lilly will do it. So yes, though I don’t
go as far as some folks. There is a professor
at Tulsa who’s written essentially that government ought to have a really free hand,
Tamra Piety is her name, a really free hand in regulating
commercial advertising of all sorts. I think her faith in
government to behave reasonably is perhaps over broad. – Well, it’s not that
long ago that doctors weren’t permitted to advertise, lawyers weren’t permitted to advertise though everybody else was. Was that an example of paternalism? – I think so. It was an effort to maintain
professional ethical standards and to protect the
professions from themselves. – Are you sorry that that changed? – Ah, a little bit. Again, it’s hard to sort of … It’s hard to … On the one hand, I
think providing services at a reasonable cost to
consumers and providing … Think about funeral directors and the FTC’s Funeral Director Rule. – [Sanford] They advertise too. – Right and they have to
provide price information. They have compelled speech with respect to itemized services because
people were being ripped off. They were in a moment of
particular vulnerability and funeral directors were
taking advantage of that. And so regulating what funeral
directors can say or do and requiring them to provide
truthful price information strikes me as a self-evidently
justified government policy that doesn’t raise the specter of skewing the marketplace of ideas. Lawyers and doctors could engage in speech that’s highly problematic
claiming efficacy or cures that don’t work: snake oil, right. – That does go on a fair amount, even despite some regulations
now, don’t you think? – It does. On the other hand,
actually, commercial speech and professional speech
is protected in Europe under the precedence of the
European Court of Human Rights. So that’s one area of First Amendment law where there is some congruence, the idea being that people have needs for accessing the
services of professionals. And if professionals don’t
have any speech rights, if government can regulate
them at will, then … – Should we be striving toward some kind of international standard of free speech and what would be permitted? – Well if we do that,
we’re gonna look a lot more like Germany or Canada or South Africa than we presently do. We are such an outlier
with respect to limitations on tort liability for invasion
of privacy, for libel. If we had a global system
of rules, if we took a vote, even among Western style democracies with independent courts,
rule of law values, democracy, entrenched rights,
our approach to free speech would not win that debate. So unless we want to make our law look more like German law … – Well we’re an outlier in many … In climate change, we’re
certainly at the moment an outlier in the world. – The Takings Clause too. Canada’s equivalent of
our due process clause, Section 7 of the Charter
protects life, liberty, and wait for it, wait for
it, security of the person. So in 1982 … – [Sanford] Not the pursuit of happiness. – Not the pursuit of
happiness, and not property. – Canadians don’t believe in being happy. – Security of the person,
that’s pretty good. – I guess so. – Actually, they’re sort of … Their motto is sort of order,
good government and order, politeness … I’m trying to remember the exact phrase. It’s in the Charter and
it’s not coming to me. But pursuit of happiness does
not make it into the Charter. – Well certainly
politeness is not protected in this country. If it ever was, it isn’t now. – Yeah, we don’t have any
mandatory civility rules. And that’s also an example
of a major global difference. So it’s not just hate speech
laws in places like Germany. There are laws involving mandatory forms of what we might call politesse. I can’t give you der
fogel, or I can’t do that. I can do it but you could sue me civilly. – [Sanford] And I could win? – You could, nominal damages. – I could win if I sued you
for giving me the finger? – Yep. – In Germany; where else could I do that? – France, most of Western Europe. Not in Canada, not in Japan. The country that comes
closest to us is Japan. For a long time, Japan
had no hate speech laws. The Diet just adopted some,
but they’re toothless. And they’re mainly precatory. I think it’s more of a
public relations gimmick than a meaningful commitment
to limiting freedom of speech. In Japan, if you want to take
a truck through Tokyo saying, “It’s essential that we restore
the power of the emperor,” or alternatively, “We have
to have a violent revolution “and establish a vanguard
of the proletariat,” that’s perfectly okay,
perfectly protected. Freedom of speech in Japan … – The latter would not
necessarily be protected here. – Only if my truck was really persuasive. – If you took a truck
through Tuscaloosa, Alabama, where I believe your law school … Is your law school located in Tuscaloosa? – That’s right, Tuscaloosa. – That said, “It’s time to
establish a dictatorship “of the proletariat,” I have a feeling you’d run into trouble. – The government would lose that case and it would have to pay me lawyers’ fees under the Civil Rights
Attorneys’ Act of ’76. – But enough people don’t think they could get away with that that they don’t seem to do it. – Well, we did have an
interesting case in Tuscaloosa involving a loud frat party. And the police showed up. And the frat, the people of
frat and the sorority sisters started screaming at the police about, “Where’s your warrant?
Where’s your warrant?” And they were tased,
which was a gross abuse of police authority. But actually the rights
consciousness of the Alabama Greeks sort of surprisingly pleased
me because they were screaming about the Fourth Amendment
and show me your warrant to enter my premises. – Right, but that’s a
fairly familiar thing that doesn’t just happen
in Tuscaloosa, Alabama. It happens in a lot of college
and university communities around the United States. They’re treating loud parties and the like as a public nuisance. But I’m picking up on your example of running through town with
a truck that has a big sign, “It’s time for revolution
of the proletariat.” – I may be naive, but I honestly
think the Tuscaloosa cops, remember it is a university town, would let that slide. In fact, there was a
case recently in Texas where someone put a “Fuck
Trump,” sticker on their truck. – Oh, I know, a small town. – Right and the police reacted to it, but the police stood down. There was no prosecution. – Well they arrested her. – But there was a no pro,. They should not have arrested her. – Well they said they
arrested her on the basis of some outstanding warrant, but that … – [Ronald] Pretextual, yeah, good luck with that unfortunately. – Some fraud warrant or something. – That’s actually a huge
problem in our current free speech laws. Supreme Court might be doing
something about it this term with the Florida case
involving the pesky citizen who shows up at the City Council meetings in Riviera Beach. I’m forgetting the plaintiff’s name, but he argued that he had
been pretextually arrested in retaliation for exercising
his free speech rights. And district court rejected that … – So arrested lest he abuse
his free speech rights. – [Ronald] In retaliation
for having criticized the government. – Oh, for having done so before. So then arrested so he
wouldn’t do it again? – [Ronald] In theory, I
guess, and to punish him for disrupting the meeting. – Right, that’s one of
several cases before the court in this period that
are gonna be very important for the First Amendment. – I fear it’s gonna go
the other way, though. About 10 years ago, the
court held that prosecutors essentially have absolute
immunity so long as there’s probable cause
for prosecuting a case involving an arrest essentially
with free expression. – So you think the court might
stick with that kind of rule? – I’m afraid so, because there’s a block on the current court that’s
very deferential to police, doesn’t want police to
have to second guess the exercise of their discretion. I think there are probably
three or four votes because there were three or four votes in the earlier case to require the police to establish good faith. But we’ll see. If probable cause for any crime is enough to privilege an arrest,
then Occupy Wall Street is in deep trouble. – Right. Let’s talk about libel laws. The President of the United States says there should be tougher libel laws in large part because of … – [Ronald] For him, not for Hilary – Because he’s aggrieved. – Crooked Hilary.
– There you go. – [Ronald] That’s libelous. – That is libelous, you think? – [Ronald] I think so;
he’s saying she’s a crook. Saying she engages in fraud. – Do you think she’s
win if she filed a suit? – [Ronald] Of course she would.. But I’m just saying he doesn’t
want to live by the rules. He wants what we might
call lese magiste laws. If he’s the President. He wants John Adams’ Sedition Act. The Sedition Act actually was
a very cleverly written law. You know who it protected,
strictly speaking? – No. – It protected false speech
that brought the Congress or the President into disrepute. Do you see who’s cut out of that? The Vice President was cut out of it. – The Vice President was cut out of it. – Do you know who was John
Adams’ Vice President? – Ah, Thomas Jefferson. – Correct and he was
not of the same party. Because the Constitution
as originally drafted made the runner up in
the Electoral College the Vice President. It was not a great idea but nonetheless. – You think about it, it
might have constrained Presidential behavior somewhat. – If that’s true, I would
not mind having an opponent, Hilary I guess, Hilary as Vice President. That would be an interesting dynamic. – That would be a very
interesting dynamic. I wonder if they’d even
speak to each other. But let’s get to this
libel thing for a moment. You know a lot of people,
I dare say including me, complain sometimes. You can say anything about
anyone online these days and no one’s gonna go after you. No one’s gonna … And it depends on whether
you’re on the saying end or the receiving end of
any particular instance what you think about that. Wouldn’t there be some
legitimate intellectual argument for tougher libel
protection in this country? – Oh, of course, and the
situation that exists is not a function of the First Amendment. It’s a function in large
part of Section 230 of the Communications Decency Act which immunizes the
platforms from any obligation to moderate the content. In fact, moderation opens
them up to liability. – The media platforms? – Right, the ISPs, Google,
Washington Post, New York Times. Many of them do moderate. But under the CDA Section
230, if you provide an opportunity for third part speakers, so long as you don’t actively edit, you can’t be held liable
for defamation for content. But if speech is knowingly
false, First Amendment. Even New York Times v.
Sullivan doesn’t protect intentionally false speech. – New York Times v Sullivan, 1965 … – [Ronald] 1964. – 1964 said that if you’re
a public figure, forget it. You can’t sue, right? – [Ronald] Not exactly. – Okay, so make my
interpretation more subtle. – If you’re a public
official or a public figure, you can’t recover against
immediate offendant unless you show falsity
of and concerning you with clear convincing evidence and either knowledge of falsehood
or reckless indifference to truth or falsehood. So if the New York Times … – It must be very hard to
prove reckless indifference, I would think. – It would be very hard. You’d have to show an
utter absence of compliance with journalistic standards. In fact, New York Times v
Sullivan has been rejected in every jurisdiction to consider it: Canada, the UK, European
Court of Community Rights, South Africa. They consider it because they have to. They reject it. In those jurisdictions,
the standard for liability generally requires the
immediate offendant to show reportage on a matter of public concern that was reasonable. So it can be false … They can either prove truth
which gets them off the hook. That’s the common law
obligation: prove truth which you can’t do a lot of times. – [Sanford] Very hard to prove truth. – But if you can’t prove
truth, if you show publication in the public interest. – [Sanford] Even if it’s false? – Even if it’s false. But to American eyes, publication
in the public interest: what is that? Would Bill and Monica be a
matter of public interest? Well I’m not sure it would
be in Germany or France. So that courts essentially
decide the meets and bounds of matter of public interest
whereas in the United States, journalists do. – This status in the
United States of libel being an outlier essentially
in the Western world. Is that good? Is that sort of a sign
of the frontier spirit and the independence of Americans? Or is that a kind of abuse of the system? – I don’t know, I’m a little conflicted. I wrote a book on comparative privacy law that engages in a fairly serious way the conflict between privacy and dignity and speech and press rights. And I think it’s sort of like
Goldilocks and the porridge: too hot, too cold, just right. The porridge in the U.S. may be too cold. I’m not sure that the
cost of being a politician is having no ability to
get a forced admission of error on a standard less
than malice of forethought with clear and convincing evidence. And another bell or whistle, on appeal if you lose to the immediate defendant, you get de novo review
of Constitutional fact by the appellate court. It is a very rough slog for a plaintiff, a public figure, public
official plaintiff. – And very expensive, I’m sure. – Extremely expensive. Would the sky fall or there
would be a chilling effect if we allowed a public
figure, public official, person of public concern
to obtain a declaration of falsity and a forced retraction? Would that chill journalism unduly? I don’t think so. So maybe New York Times
v Sullivan is needed for damages awards. I mean, in Alabama there
were like 40 copies of the New York Times edition
that mentions Sullivan in the whole state. And he had been awarded half
a million dollars in damages. And there were three or four other suits. – But it was an Alabama case? – Oh yes yes, New York Times
v Sullivan was Alabama … – So you’re a very relevant
witness in this case. – Alabama has made a lot of Con law, particularly in the 1960s unfortunately. But the standard may go too far in forcing public officials, public
figures and people involved in public concerns. – But how private figures? A public official has a platform to say, “You’re a liar, It’s
fake news,” or whatever. How about private persons who get libeled? – [Ronald] Well under Gertz
v Welch, they can recover on a showing of negligence or
more for compensatory damages. The punitive damages are subject to the New York Times v Sullivan
rule of actual malice. – And it doesn’t happen
very often, does it? – No, it’s very hard. If you’re a private person
who gets sucked into the … If you’re Monica Lewinsky, for example, good luck suing for libel. It’s just not going to
work even if technically the standard of liability
is a little more forgiving for compensatories. – So one last point I’d
like to ask you about especially given your cross
cultural perspective here. What about the right to be forgotten? What about the rule now
increasingly popular in Europe that you can find something
about yourself on Google that was wrong, that was inappropriate, and you can ask that it be expunged. That it be taken off. – D indexed technically. D indexed is the term of art. So the internet search
provider has to pull the result from the results that are provided. But if you know where to look … So if we’re talking about
Mario Costeja Gonzalez, the newspaper in his town
that reported on the for sale of his property, that
story is still available on that website. You just have to go look
for it on that website. You can’t use Google or Bing to search Mario Costeja Gonzalez. So it has the effect of
making the information less visible, maybe invisible,
needle in a haystack harder to retrieve. I don’t like it because it applies … The difference between
the U.S. and Europe, there is a lesser protection
for public officials and public figures. But Princess Caroline
of Monaco has a right to her privacy and dignity. Angela Merkel doesn’t. There’s a case in Germany
where the Governor, the Prime Minister of
Bavaria, is presented as a rutting pig with the local judges of the Bavarian Supreme Court. And an entire issue of … – Not an attractive image. – Not an attractive image. Strauss Caricature is
the name of the case. And a humor magazine,
like The Onion or Mad, publishes this or wants to. The courts issue an injunction
against distribution of the entire run of the magazine. Because they said it presents
Prime Minister Strauss as a rutting pig is to deny his dignity, that presenting him in
this way is not necessary to criticize his policies. – This must have been quite a while ago. – It was in the 70s, but
there was a more recent case in which Prime Minister Erdogan was mocked on a Saturday Night Live skit. – Oh right, yes. – With Bowman, and Bowman
was criminally indicted for mocking the size and character of Erdogan’s private parts. And it was funny too;
Bowman actually said, “I couldn’t say this.” It was sort of Trumpian while
there are people who say he back into it and talked
about his lawyer’s advice about what he could or couldn’t
say on German television. And actually … – This is the now President of Turkey? – Yes and of course
Angela Merkel’s government is working with Erdogan
on refugee migrant issues. – And they didn’t want him
insulted or maligned in Germany cause it would make things harder? – Correct, so it was a political
and foreign policy reason for it, but the Germans
were generally outraged that criticism of Erdogan
as a tyrant by mocking his physical … And no one took it seriously. That’s the other thing, right. No one took it … He compared his member to
a donor, a smelly donor, a sausage. It was hyperbolic; it was outrageous. It was like the Hustler v Falwell parody of Jerry Falwell. – Falwell, famous case
which the Supreme Court said was just fine. – Yes, that criticism of
public figures and officials can be caustic and unpleasant. And that’s just the price of democracy. The European Court even writes, the European Court of Justice, the Federal Constitutional
Court in Germany just don’t view the matter that way. Even the Prime Minister of Germany, the Chancellor of Germany
has a right to protection, legal protection of her
dignity and her honor. – [Sanford] So is that better? – No, I don’t think it is. It seems to me that when
you start getting involved in matters of kind or degree, and engaging in proportionality analysis about how far is too far,
you really open the door to comprehensive forms
of government censorship. I mean I grew up in Mississippi, and my public schools were integrated with the help of the
National Guard in the 70s. And so if you think
about the NAACP, or SNCC, or CORE trying to amass public support in downtown Jackson or Biloxi in the 50s or 60s, a government that had the power to declare that a terroristic threat, or to say that comments about
Ross Barnett or Jim Eastland were defamatory, could have silenced them. – A government that could do
that could prevent progress, could prevent reform. – Yes, it’s a two-edged sword. So whatever rules create liability
to protect Hilary Clinton from false maligning speech are going to open up people
who attack Richard Spencer to liability in silencing him. – Well Richard Spencer, much
of what’s said about him he would agree with. – That’s probably true. – Thank you very much,
Professor Krotoszynski. – Thank you, thanks for having me on. – We’ve been discussing free speech from a cross cultural perspective
with Ronald Krotoszynski, Professor of Law at the
University of Alabama. To learn more about
Georgetown University’s Free Speech Project,
please visit our website. Thanks for watching. I’m Sanford Unger.

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