 the host of Think Tech Hawaii's Law Across the Sea program. Today we're going across the sea of free speech to talk with Mark Davis and Jim Bickerton. Mark Davis is a partner in the law firm of Davis-Levin Livingston. Jim Bickerton is a partner in the Bickerton law group LLLP. Both are very knowledgeable and extremely experienced trial attorneys and zealous advocates for civil rights. I've asked them to share their knowledge and experience concerning current events involving free speech. Welcome gentlemen, it's good to see you both during these times and during these times I've noticed recently that there's been a lot of news stories that use the term free speech. And so I wanted to get you both on because I know you know a lot about that term and what's going on. I want to ask you what's going on. So Mark, first of all, what is free speech? How do you define it? And what have you learned about it during your years of practice? Well, I mean, to me free speech is two things. One is that which is deducted by the person movement and also the whole virtue that our society generally embraces which is that government politics and society in general is improved simply by having a free and vigorous debate and activity that isn't censored in any way. And in some respects, given, you know, the advancement of all the social medias and the platforms that now exist to express your opinion, often that which is legal and that which is valued by our society might be something that's quite different. So there's a lot of, I think there's a lot of confusion about exactly, you know, what the person is all about and how that impacts disinformation, hate speech, that type of thing is, you know, we go forward. Well, right. And I mean, I'm getting confused because I hear the word free speech, but it's not often defined. Jim, what is your site on free speech? Well, you know, what Mark articulated is the basic precept what we sort of learn in what I would call the civics class version of the Constitution, which as lawyers we subscribe to and try to advocate for. But the US Supreme Court has mucked things up a little bit because they issued a decision called Citizens United in 2010 in which they said money is speech. So once someone says that anyone starting to talk about free speech is bound to get confused because if money is speech, we know money is not free. There are certain politicians who remind us of that all the time. And so if money is speech, how do we have free speech? And so I think that decision that was in 2010 and it sort of was the starter's pistol for the events that we are now in the middle of and still trying to sort out and perhaps a reason why you felt the show was timely is because of the things that are going on that stem from that 2010 decision. Okay. What are a few examples, Jim? Well, for one, the whole thing that's bothering people right now, I think, is this idea of Twitter and Elon Musk and what speech means and really the primacy that the 2010 decision in Citizens United gave to the speech of the wealthy, of the billionaires is a reason why this is a debate that's taking place right now. But speaking specifically about that debate, and I think it's an important thing to remember, we don't really regulate and should not regulate private speech. And the First Amendment protects government regulation of speech. So when groups like Facebook or Twitter, some of these other large companies say, oh, you're off the platform or you can be on the platform, we feel somehow that a right is being violated, but technically government isn't doing it. And so they can continue to do that. Yet at the same time, the only reason that people like Mr. Musk or Mr. Zuckerberg even exist is at the sufferance of the government. And the fact that they're allowed to amass these large platforms and control them is really a direct result of government policy. So there is a tension there that goes on between having a platform that is technically private and therefore we can't complain about if they want to censor you, but it still feels like your free speech is being violated because they have a monopoly. They're almost like a utility, but they can say they're not government and therefore they can do what they want. And those are, I think, fundamental problems that everyone's wrestling with right now where it will end up, whether things like Twitter and Facebook will eventually become utilities and then treated more like a government is treated and be more regulated in terms of whether they can ban people or make these decisions, we'll have to see. One thing I want to stress in my own view of the First Amendment is that I've come to feel very strongly over the years. I'm a passionate advocate of the First Amendment, but I also feel that the right of freedom is not the freedom to be an a-hole. That's a technical legal term of art, which many of your viewers may know, but there has to be some line that we can draw. Like traditionally, speech protections did not protect libel, slander, what we would call theater fire speech where you can't yell fire in a crowded theater. There were, you can't, fighting words, for example, can't be regulated. I can't start a riot. Those are not free speech, but we always allowed people the right to be absolutely unpleasant and horrible. And wrong. Yeah, and wrong. But the problem now is we have these giant megaphone where you can be absolutely unpleasant and wrong and full of disinformation and yet still reach hundreds of millions of people. And so what do we do about that? Let me ask Mark. I mean, yeah, I mean, there's been a lot of talk about Twitter. There was recent star advertiser editorials. Asking the question is Musk's takeover of Twitter good for free speech. One editorial said yes. The other said no. And the one that said yes says, well, he promotes free speech. The one that said no is promoting right wing backwardness and authoritarianism. Mark, what, what is, I mean, what is the view? So, you know, so if you look at this a little bit from a historical standpoint, and if you're something like me, and I suspect you as well, in our earlier days as lawyers, and you know, we were probably pretty purest when it comes to free speech. And which meant that we were sensitive to the fact that this, you know, the city of Alabama would have censored Martin Luther King because they thought his speech was dangerous, insurrectionist, you know, harmful, et cetera. And we always were very comfortable in the proposition that, you know, the best cure for incorrect and improper speech was more speech. And but that's not to say that even from the beginning of the jurisprudential evaluation of free speech that, as Jim said, there are limits to it, which is, of course, like fire in a crowded theater, you and in a fundamental principle of the legal aspect of First Amendment, and also, but for these, is that a government has a right to ensure that it's continued protection. And when speech threatens that or challenges that threatens that, then there are aspects of our civil liberties that the government legally has the right to, you know, suspend and respond to. That's the way we got martial law during World War II and other, you know, things that we have done in the past. So to me, the question has come at this point in time as to whether we are facing kind of a different situation when our airways are full of hate speech and they cause, some would argue, you know, the basis of insurrections and actions and violence that, you know, has been prompted and, you know, is the government legally entitled to, you know, protect its, you know, civil position by, you know, clamping down on that. And, of course, that's a very, you know, controversial position to think that we're, you know, actually headed towards a challenge to our system of government, which the First Amendment is, you know, not supposed to have a free license to endanger our style of government. But, you know, I think what we're seeing, and I think as Jim also pointed out, you know, the issue today is not really so much, you know, government censorship or trying to stop down, but it's a question of how private industry like social media and big corporations and others are able to really transmit hate speech and certain types of disinformation in a manner that so many people believe in. And in some respects, the reason in such a pressing problem is not because people are saying this in private industry or lacks the ability to, you know, monitor and regulate it, it's because so many people are believing it. And you're always, everyone's always reminded of, you know, totalitarian regimes that come into place on the basis of, you know, the big lie or misinformation and so on. And, of course, that's very troubling to me. Let me ask, starting with Jim here, you know, you've both talked about these wealthy people buying social media platforms. Donald Trump formed Truth Social, Elon Musk now has Twitter, Kanye West now known as Yay, I guess, is acquiring Parler. They all are saying free speech is the reason. I mean, what is motivating them? I mean, what's going on here? Yeah, the question, this is, I read Elon Musk's articulation of his rationale for why he wanted to take over Facebook. And ironically, his was a bit like the, you know, eighth grade civics class version as well. Oh, the marketplace of ideas is strengthened and people should be able to say what they want. That ignores the reality that, you know, behind the scenes we have corporate control. And part of corporations is they want to sell goods and they need to advertise and Twitter cannot exist. Facebook cannot exist. These are not just pro bono projects of these billionaires. They actually make money by selling ads. So Coca-Cola doesn't want its ad on a platform that is truly free in the way that these sophomoric billionaires are pretending they want to promote. They are Coca-Cola will be out tomorrow if, you know, hate speech and all the rest of it is in any way connected to their ads. So they need content moderation, they need control. And so I don't think that they've really thought it through. They just have this impulse or this urge to let's have an open place, but they're in business. They're not giving away this platform. It's a business and the business is going to be controlled by the same corporate forces that control other businesses. And it's what I think is the real problem in these businesses is that studies have shown that people will click on something that is hateful and divisive more frequently than they will click on something positive and uniting. It's a very base. I don't care what it is. That feature drives the market and the people who get more clicks, get more money, get more ads and so on and so forth. There is some tension there between these companies that don't want to be associated with a hate speech that there's a lot of people out there who still get money from the click system and until we find a way to disincentivize promoting divisive and hateful clicks, which could be done through some market force, doesn't have to be done by government regulation. Until we design something that reduces that, we're going to just see this continue to accelerate and grind it out until we have two or three completely different isolated parts of society that aren't talking to each other, that hate each other. Barack Obama explained recently that in a campaigning in Illinois in 2003 or four for the U.S. Senate, he could do things you cannot do today. He could walk into a rural white neighborhood and even though they might not vote for him, he could sit down and actually talk to them and they'd discuss things with an open mind. He said that mind has been closed off because of the filters that have been erected by these social media giants. And I would include also network television like Fox News as well as the social media confidence. So what I hear you saying is that a lot of this deals with money and a lot of it deals with ego, not necessarily free speech, but free speech is being used as a vehicle to drive both of those things. Now, Mark, I want to ask you some questions about some specific cases that have come up recently and maybe explain why they are not free speech. A jury recently found Alex Jones libel for millions of dollars for what he said on the radio. And why wasn't that free speech? That's one example. And then there were recent anti-semitic posts by Brooklyn Nets, Stargard, Kyrie Irving. And he was punished by the company or by the team he works for because of those statements and his failure to apologize. Now, why can't, I mean, those are not, I mean, that's an individual saying things, both instances, why is that not free speech or is it free speech? Or what am I missing here? Yeah, so let me just respond, first of all, to say that, you know, for all of the problems that has been, you know, generated in terms of speech and conduct and other things, which the Congress, the president, the states have been unable, the courts even have been kind of unable to deal with. We have seen in recent months, civil juries who are presumed and allowed to make decisions about these types of cases, delivering just in a way that nothing else in government was able to do. They are, the juries, in my opinion, are slaying the big dragons that are facing, whether it's Alex Jones or Alex Weinstein or even being able to ultimately respond to some of the issues of gun control and like in the Sandy Hook case. And when it ultimately gets in front of a jury, you know, we're seeing some of the, some of these issues responded to. And frankly, and the reason all those cases got to go to where they are is because they are, they are private, they aren't, you know, it isn't actions being intervened by the government, but it's by, it's driven by commercial interests. So kindly are being lost as Adidas contract. And as somebody pointed out, Adidas, you know, for making anti-Semitic content. And Adidas was, you know, founded by the Germans during the Nazi era. So as Dave Chappelle recently commented that he even offended the Nazis. So, but I think that if there is a solution out of this, it's going to be out of commercial interests. Coca-Cola doesn't want to be associated with hate speech and other things. And they have the ability, you know, to prevent it as does, you know, Kylie Erving's employer and sponsors that he's behind. And so, and we, you know, we found this, we have found this a lot in other things. I mean, for example, and, you know, I've been closely involved with, you know, some gun control litigation and, you know, and ultimately it's the decision of certain retailers not to handle several certain types of guns, even though legally they could. So if there is a way out of this, and because, as Jim pointed out, so much of this is really profit oriented, you know, that's who is benefiting from the disimpervention in Facebook and Twitter and so on. It's the sponsors that are buying ads and, you know, and someday hopefully they'll be able to exercise their economic power to control this. And that's what I hope, you know, will be the upshot as opposed to giving additional rights to government to censor. You know, it's very interesting, you know, Jim, excuse me, go ahead. I just wanted to echo what Mark said about the power of juries because defamation law is still out there that can't control. That was the Alex Jones case. And of course people would say, well, look at you, Mark and Jim, you're jury trial lawyers, of course, you know, every problem looks like a nail when all you have is a hammer. But it is true. It really is the powerful source that we have. But I did want to say that a reason that we can't reach a lot of this speech with juries is because of a law called Act 2, Section 230, which was adopted either in 96 or 98, late 90s. And they wanted to get the Internet off the ground. You remember these companies like Facebook and so on were tiny or non-existent companies. And it was a good idea, sort of like, let's give them complete immunity from what's posted. What's interesting to me is why they ever needed to develop content moderation at all if they had complete immunity. It was for these advertisers that Mark was referring to that I referred to earlier that that's why they have content moderation. They can't be held liable by a jury. So we can either change Section 230 and reduce its power of immunity that it gives them and make them accountable for all the defamation that they post or we bring to bear the power on the advertisers. And that is being done. I've seen a movement right now to go after the advertisers on Twitter to say, look, if Twitter is going to put Donald Trump back on there, don't act, you know, we're not going to buy your product anymore. And so in some ways, the power of speech that consumers have, it's ironic. The Supreme Court has said, well, speech is money and money is speech. Consumers can take advantage of that. At the end of the day, we are the ones who buy things and buy the things that the advertisers are selling. If we can get organized, we can actually control this marketplace of ideas in ways to reduce the hatefulness and divisive nature of it. If enough of us can agree, we can get organized between good-minded people and the clickbait people to see who's going to win in the end. Well, and so you're saying free speech is cost money and talk is not cheap, which is what we're all talking about. I want to ask you a couple of things. There was a recent U.S. District Court case that found to Hawaiian man guilty of a hate crime. It seemed to be based on, from what I read, was what they said about the man that they beat up. And then there was also a recent event where two men were arrested for online threats against the Jewish synagogue. And one of the things they found on one of these men was a swastika armband. Now, I'm just curious. When you say things about other people and their race or you wear something like a swastika armband, is that not free speech? Well, it depends on whether it's connected to another crime. If you've just wore the armband or if you've just said those things, the government could not do anything. But in each of those cases, they actually crossed a separate criminal line happening at the same time to espouse or endorse those views. And then that does sort of take them out of the area of protected speech and into the area of prohibited speech when you combine the speech with an actual separate criminal act. So the defendants in that federal case you're referring were not being prosecuted by what they said, but they were prosecuted for the act of assaulting the victim. And the language that they used was for the purpose of explaining their motive, which put them into a category of a hate crime. And so it wasn't their speech they were being punished or it was the fact that they beat up the person that they beat up. And so I think that in general, I also feel that we are going to see a lot more defamation stuff because I feel like it's kind of a great thing to pursue issues, to raise them. It's based upon truth and damages that are suffered by the infliction of that information. And I think we're going to see quite a bit more of that and that might very well have some impact and if people start responding to, if people start buying Teslas because they're angry about how Musk is allowing disinformation and hate speech and out, he might rethink everything. Both of you now have talked about commerce and also just the court system as being sort of guardians of free speech. To me, that's how I'm interpreting that. And so I think you both are saying that free speech is a good thing. It can be a problem, but there are ways to deal with it. Am I right, Mark? Well, I would modify that a little bit by saying that's all we have, because we can't have the government operating as a sensor of things, whether it's on the internet or anything. That's what fundamentally is protected by the First Amendment. So now we have the marketplace of ideas that are going to be dictated by the market. There is a group of legal scholars that advance the idea that hate speech should not be protected at all, even though it may be in an area. That's a theory that actually came out of one of our professors at the University of Hawaii Law School, but it's something that has gotten some recognition in legal scholars. Jim, would you add anything to that? I concur with what Mark said, but I would say that the problems, the way speech works is the problems that arise from it are always new. We shouldn't be fighting last year's battles, last year's wars. We need to find new ideas and new solutions to deal with the new problems that are coming out of free speech. The solution is not to do away with free speech. It's to think deeply about the problem, recognize where the sources of problematic speech are, and find ways that don't involve making the government become just the sensor who just puts their hand down. Find other ways to resolve the issue, but definitely we all need to pay close attention to the type of speech out there. Well, we have a couple minutes left. I'd like each of you, I always try to look for something hopeful, and we're coming towards the end of the year. And we have some words like Thanksgiving and Happy New Year. Are they worth saying? And it can free speech somehow help those words and our lives. Mark, what are your thoughts first, and then we'll ask Jim. Well, in my view, the thing that has been the most concerning information is how many people are buying it and believing it and, you know, following into these conspiracies and other things. But when all is said and done, it seems, I mean, this is just my unscientific impression, which I look at after the midterms and after seeing some of these jury verdicts. And fundamentally, people are going to say there's a limit. And they're just not going to buy into certain aspects of it. And if that is true, to hope it is, then I think that some of this disinformation is going to be, is going to prove by a lot of vehicles by which it's broadcast to be something that's not in their interest. And maybe it'll be monitored and quite a little bit. Jim. Well, I'm an optimist. And again, I agree with everything Mark said on that point. But I think looking forward, you know, sometimes past performance is an indication of future results. We've had 200 plus years going on 250 of free speech and the First Amendment. And I think that it has worked so far. And as long as the American people are creative and independent, they'll find a solution. So I remain optimistic about that. I'm hopeful we'll find a way not to give this First Amendment right to artificial creatures of statute called corporations and only to human beings in the future at some point. But we are a long way from convincing people that that's the solution. It's what I think is the solution, but it'll take me a while to convince others. Well, look, I want to thank both of you, Mark Davis, Jim Bickerton for being my guest today and talking about free speech. And it's remarkable that you both are optimistic about people, which as, you know, tough trial attorneys, it's interesting to hear. And I guess it gives me a little hope too, that if both of you can be optimistic and have some faith in people, then perhaps there is something to be hopeful about. But thank you both. Aloha. Thank you. Happy New Year. Thanks. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.