 And thanks for joining us on Think Tech Hawaii, rule of law and a new abnormal. We have the extreme privilege and honor of having with us today four absolutely wonderful people, some of my favorite in the world and extremely knowledgeable and articulate on many topics, including those we're gonna address today. We have a couple of honorees with us today. We have retired professor Ben Davis, University of Toledo School of Law who has just received from the American Bar Association section of dispute resolution. It's highest honor for those in dispute resolution. And that is the Dolan Bear Raven Award. Which last year our colleague and esteemed friend Homer LaRue received. So we have a streak going here that we hope will continue for many, many years. Our other today's awardee, and I'm sure all four are awardees in many respects. Our other today's awardee is Jim Alpini, former Dean at North Illinois and South Texas School of Law and Professor Emeritus as well as Dean Emeritus. And Jim received the ABA section of dispute resolution chairs award for his unique contributions and value, both professionally and personally to conflict resolution and to the ABA's dispute resolution section in whose leadership Jim has played a central role for many, many years. Fortunately, he started when he was 12 so he's still quite young. We should mention, Chuck, that Ben's award, my award pales in comparison to Ben's award. Ben's award has to be vetted through a whole bunch of people. My award comes from the chair of the social. He just felt sorry. But Ben got the biggie. Not true. Ben got the biggie. Not true. Jim Alpini. Amazing. Okay, all I can say is amazing, all right? So it's always wanted somebody that you say, man, this is a God or a goddess. And not only that, we need to reaffirm that this award was chosen and given by Myra Selby, chair of the ABA's section of dispute resolution herself, a preeminent leader in conflict resolution and a nominee during President Obama's time to the 7th Circuit US Court of Appeals, which Senator McConnell chose to keep from getting even to consideration long before Merrick Garland was nominated to the US Supreme Court. So that pattern continues as well. And the problems associated with it. We should tell the whole story there. After Myra, after the Obama administration was replaced by the Trump administration, the person who was appointed to that seat on the 7th Circuit was Amy Coney Barrett, who as we know later went on to the Supreme Court. So Myra might have been destined for even higher thing, but for politics. And actually quite honestly, I think all of us who know Myra can think of no one who would be a better successor to Ruth Bader Ginsburg in that Supreme Court seat. Yeah, absolutely. Lots of things going on. Hey, Jim, you brought up a couple of things worth talking about, but what were those? Well, I mentioned that two of the hot stories today, I was watching CNN before we got on, two of the hot stories was police reform legislation. Apparently there's a bipartisan committee in Congress that's looking at police reform legislation and by all accounts, they're being very friendly to each other. Lindsey Graham comes out with Congresswoman Bass and they're joking with each other. And who knows, it might just be, I mean, knowing Lindsey Graham, it could be optics rather than substance. The other thing is that the three Georgians that were charged by the state of Georgia with the killing, with the murder of Ahmad, what's his last name, beggar? Ambrine. Yeah, they've been charged now with a federal hate crime. And we might wanna talk about that, what that means. They're gonna be in both state and federal court with related crimes. We could also drift into whether they're, the United States has always been very shy about anything bordering on hate speech being criminalized. Other countries have not been so shy. Our First Amendment perhaps throws a wall in the way of that, but I don't think that wall is impenetrable. So we could talk about whether there's, what if Ahmad had been intimidated by these guys in the pickup truck, driving by him saying the N word back and forth and telling them they're gonna run them off the road or whatever, but using epithets towards him. Could they be charged with anything maybe, but what about hate speech? Is there a place for, should we be criminalizing hate speech? Well, my view of the law is it is what we want it to be. There is no, in my view, there is no, there is no law is not a God put down that has to be followed. It is interpreted from and made and to the extent that we don't have hate speech as a part of something that is exempt from free speech. That is more about us unwilling to be to deal with racism and to use freedom of speech as a cover for not dealing with racism because there's, it incites the violence, hate speech incites the violence, hate speech does a significant personal harm. They're very easy, could be a rationale in my mind to say that hate speech is not automatically exempt. I mean, automatically covered by free speech. Agreed, and you know, when we think about hate crimes, the thinking has always been that you're not just punishing the speech, right? That it's the context of the speech and it's the action that's connected to the speech. And so, I mean, in the example that you gave, sure these men could be yelling out racial epithets and all that, but you combine it with the entirety of the story and you ask yourself, did they commit the crime against Ahmad Arbery based on the bias that they were expressing? And I think once you have the vocalization of the epithets or your spray painting, things like whatever scene you wanna have, the thinking is that that's really just evidence of your bias, right? And that's why that was the motivation for the crime and therefore, you can be unhelpful for hate crime. You're not just being punished for your speech, right? You're being punished for the fact, the speech is the evidence that your actions were carried out in a biased manner. And that's a critical insight, I think, Professor, because we look at the classic subtle case law of that you can't yell fire in a crowded theater because of the obvious harm, not just foreseeable, but unavoidable that it's going to cause. So what if we take it one step further and ask, was the former president repeated willful incitation to people to inflict harm on elected officials in the Capitol on January 6th? How close does that come to hate speech? I think it's a great example or comparison because in my view, it's the same analysis applies, which is you can't take the speech out of context. What's the entire context around it? Who are you speaking to? At what time? What happened as a result? And all of that is important, but it's evidence that goes toward the motivation for actions, and that's the way I'd see it. I'd agree with that. If I agree with that. Go ahead, Ben. Yeah, go ahead. I was gonna say, what is the classic thing in America? You got it, the politician or somebody who says all this stuff can't blame anybody, and then all of a sudden violence happens, and they go, oh, I didn't name that. You can go back to, I can think of many points in time where you're really getting the blood of people, and then after something horrific happens, they're like, oh, that wasn't what I was intending. That's just that bad person over there who did it. Yeah, I think it's a good point. I think that's, you're absolutely right. And that one of the things that has troubles on it about how we deal with hate speech is that we want to look at it from the perspective of the person who is uttering the hate speech. When I think the issue becomes what would a reasonable black person think? What would a reasonable Asian person think? What would a reasonable Native American Hispanic person think? Something, and I think that because when I talk towards one of the things that was really troublesome, and this has been years and years and years ago, so it's possible the actual law could have changed in that time, but at the time, the Supreme Court pretty much would not consider being called a nigger, being called a pick-a-nanny in the workplace, hate speech. Because, hey, there's all kinds of words that are harmful and painful and we can't label everything as hate speech. And they could only come to that rationale because they looked at it from a perspective of someone who was never gonna be called nigger. So if we take Professor Jefferson Exum's brilliant insight that hate speech is contextual and must be understood contextually and combine that with the objective perception of the object of that hate speech, whether they be black, Asian, LGBTQ, disabled or otherwise, might that provide a more ethically sound standard for us in our legal system? It's not what we've got, but what I'm asking is if we make the evaluation of it contextual and objectively from the standpoint, the object of the speech. I think this goes back to what Professor Randall was saying earlier that she said the laws can be what we want it to be. So we have to just think about what we wanna protect people against and how we want to react to things that people do. So if we say our objective is to, let's take the workplace example if we wanna do that. If our goal is to have a workplace environment that's equitable, that's inclusive, where people can thrive and not feel threatened and harassed and oppressed because of their identity, then absolutely, right? The law should reflect that if you make certain statements within, and we look at how that would be received by your audience, then I think that makes perfect sense, but it's just if that's what we really wanna do, right? And I think that there's just been an unwillingness in our society really to go those lengths to really protect individuals, black people specifically and sort of incorporating their real life, real world lived experience in our legal perspectives. And I think that's what's missing. So maybe that leads to another question and that is, do we need to make those changes in our law as to hate speech, discrimination law and other areas in order to prevent the violent destructive weaponization of the First and Second Amendment that we have seen for the last four years continuing? What do we need to do? Yeah, I'd like to take it a step further than Jelani suggests and think of it in terms, take it out of context. Again, let's go back to the Arbery case. Mr. Arbery is jogging and these white guys in a pickup truck keep going by him using the N word. They don't kill him though. That's why I'm taking it out of that context. In the current context, the hate speech is an aggravating factor to the murder. So they could ostensibly charge him with a greater sentence, but they don't kill him. They just, you know, and he's really wounded by this. He's injured by this as are other African-Americans that hear this going on. Should they be able, should they be charged with hate speech? Should there be a crime that says that's against the law? That's against the law. I agree with you. I mean, I think there should be, but again, we've been very timid about going in that direction because of the First Amendment. Well, how about a tort? You know, like using the tort of nuisance or something like that for what they're doing there. Wouldn't that be, I mean, because you don't have a, I don't have a caption. I remember that guy, but it just occurred to me that it's like a nuisance. You know, it's like a- Okay, let me, let me, let me, let me, let me. The problem comes with that is it still has to run, the words alone won't be enough unless it runs to a certain level. And perhaps in the particular situation, you can say it runs to a certain level. But I have a problem, Dean, with saying that it, that the First Amendment keeps it out. My argument, no, the First Amendment is not keeping it out. We are interpreting it to keep it out. We could say that there is no, just like this, don't raise up another controversial issue. It's just like a gun, gun control and that sort of thing. The Second Amendment is only what we say it is. The First Amendment is only what we say it is. So there is no First Amendment bar to not protecting hate speech unless we want it to be. And apparently we have wanted it to be a bar all these years because we keep saying it is. But, you know, the Supreme Court can rationalize only my great-grandparents, they can rationalize getting rid of hate speech. I agree. And I think the direction of the Second Amendment had something similar in mind because it's all how we, you know, how we contextualize, I guess, or categorize or analogize whatever you want to put in there. But if we think about these words as weapons, you know, and we said, that's what's happening. It's weaponizing words. If I go out on the street and wave a gun around at somebody in a threatening manner, that can be criminalized. So if we will acknowledge that the words have this great, you know, harming power that they really are threatening beyond just someone saying, you know, I don't like your hairstyle, right? This is deeper than that. This goes to really the foundation of our country and oppression and also terror, right? These are words that are used to terrorize. Still are that would result in real physical violence to people. And so just hearing them can evoke all of that, right? And so if we would recognize the words as weapons, just like Professor Randall said, we can do, we can go so many places with them, we just have to want to. I want to add another thing on that that just popped into my head, which is, you know, a lot of the kind of hate speech we're talking about is in the history was developed from religious beliefs like the Mark of Ham, you know, that black people were in fear because they had the Mark of Ham. And so I can imagine somebody trying to run the defenses that, you know, my sincere religious belief is, and they say they ain't speech, right? And so you can't, and since the Supreme Court never will question really the sincerity of the religious belief, you know, you get another angle. And in particular, there's some recent shadow dodgers that calling it stuff by the Supreme Court, where they don't actually hear the case that they summarily deal with it and there's dissent and all kind of stuff. And there seems to be an approach that seems to be what's called the most favored nation approach in some of those, which is basically giving most favored preference to religious belief over other rights. And as a consequence, you'll see, you know, the sort of religious part of this kind of take over everything because the court never challenged sincere beliefs. So then, you know, so you get this balancing stuff with the state interest and all that. And there's also narrow tailoring that happens with strict scrutiny and all that. But this most favored nation for religious things pops things up to strict scrutiny at a level that could, you know, evictorize any of these efforts. Just have a summarily decision by the Supreme Court. Somebody, even Blackmate wrote a piece which said that this past term, it did it 41 times, which was like, amazingly amount, usually it's like five, six, maybe seven times in a term. And it was like 41 last time doing these kind of summarily and maybe changing the underlying precedent at the same time. And like overruling things in shadow. That's not transparency. It's, you know, that's another worry that we have, so. I think then the best example of that is the way they're using religion to shield discrimination against the LGBT community. I mean, that, I don't know how many cases where they've used that as the basic cover up. And unfortunately, the three Trump appointees are likely to allow that to continue. I actually think that, I think that's a good point, Dean. And I think one of the things that, and Ben, and I think one of the things they're doing is building a rationale for overturning Brown versus Board of Education and then allowing state rights and then saying religious states that they're not gonna interfere with racial discrimination that is based on religion. I don't see how they couldn't, how that not, not ultimate being based on religion. All right, I agree, Bernalia, and I'm just gonna say one thing here. Folks, we've been there, done that. It's called the Spanish Equalization, brand 59C for that, okay? That's right. I'm gonna help everybody, let me know, okay? I'm just gonna say it. Okay, and I'm gonna cut in for just a second here because we've got a viewer question. What if racism and racist hate are inevitable parts of human nature? What do we do about it? What can we do about it? What do we need to do about it? We can't pass laws to get rid of racism, but we definitely can pass laws to get rid of racial discrimination. And we can then enforce those laws in the same way we enforce others and they will always be some people who break it. But my experience is Americans will sit at a stoplight on a road that is completely empty because the law says they should. And I feel like that if we really had good anti-discrimination law, which we don't, that we would see something different. And the large part of the problem we have is that the law is inattic. But here the questionnaire is right. I don't think we can do anything in the law that will get rid of racism. I think we can protect people from racial discrimination. That's why I like the one that brought in injury, you know? I mean, one of the worst things I learned as a kid was sticks and stones will break my bones, but names will never hurt me. That's just so wrong. Words can hurt people, particularly when they're used in a certain way. And so we have to tie it to the injury that's caused. As Johnny said, it's the same as waving a gun around. Yeah, and I'll just add one more thing. I really like both of you are saying what Professor Randall said about we can protect people from discrimination. I'll add to that that we can also protect people from racially disparate outcomes. Because sometimes, I mean, all the time, we see the racially disparate outcomes, but we wanna discount it because we don't know what causes it. We feel like, oh, it's implicit bias. That's why sentences for blacks are longer. That's why educational outcomes are different. That's why this or that, right? And so I would say if you see these racially disparate outcomes, that is another place where we need the law to step in and protect people regardless of the cause. We know it's underlying racism, but it doesn't matter if we can track it back to an individual or to somebody's intention. But the fact is that we can deal with it. We just have to want to. I actually, in my mind, always think about outcome as discriminatory. But I know that most people, when they think of discrimination, aren't thinking about outcome. And you're absolutely right. We need to include outcome in the definition of discrimination. If I can jump in for just one second, I'm sorry, I'm doing this in the car. The dog is sitting here. But I wanna tell you, I'm a student with a whole James Meredith University Mississippi in 2007. And he said to me, I swear, that it was only when he got to Japan that he realized that segregation was not ordained by God, okay? That's how deep that thing is, okay? And so for that particular person who's saying, well, racism's inevitable, my thing is, no, it actually isn't. It's been worked on for 550 years, so at least, so it looks like it's inevitable. If you go back to 1478 with a, called Exigence and Cereali devotionis of the papal bull of that time to the kings of Spain, he told them it was okay to start distinguishing Jews and converted Christian Jews, as well as Moors and converted Moors, Christian Moors, from the rest of the people. And the fact that Jews had to wear a song with a red cloth and the Moors had to wear a climb with a blue cloth. And that's part of the differentiation thing that we've seen over the last 550 years that was going on there. I mean, I'm not saying it's just that thing, but I'm saying it's a very, you know, this is not an inevitability. It is just that it's what, it's like the water we've been swimming in for a long time that we look like it's just the nature of the water. But then I would counter that maybe the point, when I think about racism, I'm not thinking about just color, American colorism. I'm thinking about all forms of discrimination based on physical differences in people that happen around the world. And I would put to James Meredith that he experienced something that was based on him being a foreign person more so than the fact that Japanese don't discriminate. I mean, I am there, I don't know the name of the group, but there's, they've got centuries of discriminating against one group and going to great limbs even today to continue that discrimination. And so while American colorism is colorism and they go away and can be done something about, it's not inevitable, I do think people will find a way to discriminate against Japanese and I've said it, I'm time tight now. And we're out of time for today. We've opened it up to a lot of wonderful directions to go. Two quick things at the end, Think Tech is, depending on all of your donations and contributions, please go to Think Tech and contribute now through the end of May. All of you viewers, whenever anyone looks at this, thanks so much, we'll be back in two weeks. Please join us again. More difficult conversations to make good trouble. Thank you all for our four honorees for today. Thanks. Thank you.