 is Think Tech Hawaii. Community matters here. Aloha, and welcome to Talk Story with John Wahid. For those of us that enjoy the football season, the last few years, actually, that's couple of years, we've seen something interesting happening on the field. We've seen people like the quarterback, Copernac, I think his name is from the family of the San Francisco 49ers, Neil doing the playing of the national anthem. And yesterday, and then we've seen our president comment on those kinds of antics, and yesterday we saw entire teams take a stand and use the moment of this national anthem as an opportunity to say something. And it seemed to me, for many of us, we really would like to understand how this process works, you know? And it's all part of our guaranteed freedoms in this respect. The United States Constitution guarantees us freedom of speech and freedom of the press, freedom of all of many things. And I thought it would be interesting to sort of explore this very current phenomenon. And so, this afternoon, I have with me, probably Hawaii's foremost First Amendment attorney, and I've known Jeff Portnoy for a number of years. In fact, it's very possible he might have even sued me a couple of times for my involvement with the First Amendment. So, I appreciate your coming on the show, Jeff, and discussing this issue with us. Well, thank you, John. I probably did sue you a few times. Well, we're not going to go back to that. You wouldn't be the only governor actually. You know, here's the strange thing about your suits, though, which you ought to know. And then, I know we defended it vigorously, but now that I've left office and moved on and in this current age, I really hope I lost. Well, you were one of the more, I would say, you know, we all know about your efforts to pass Hawaii Chapter 92. So, going back over the last five governors, I think you were the most aggressive in trying to promote access, at least, to government meetings. You know, and I think we need that more than ever, more than ever. I agree. But also, just what's interesting now is it seems like the exercise that what we take for granted of saying things that we believe in, doing things that we believe in, have come under attack, or at least they're being, you know. Well, I mean, this whole thing with the National Football League and now the NBA, it's really kind of unfortunate in one respect, in that these are sporting events and they're being translated into political events. And I think there's a issue as to whether, as the result of the president weighing in now in the last 48 hours, and team owners now responding in the public kind of torn, we've kind of messed up, I think, the distinction between what should be a football or a basketball game, and what are clearly the athletes' free speech rights to protest in any way they think is appropriate. And Colin Kaepernick, as you pointed out, started this a year ago, and then because of the political reaction to it, it's just encouraged, literally, hundreds of other athletes to take a stand. Well, you know, just getting down to the basics, though, it seems to me like when you say, when you use the word free speech, you say something. And in these cases, it seems like, but then we realize that there's an element of free speech that has to do with symbolism. Yeah, speech can be symbolic, and the United States Supreme Court has made that clear, the Tinker case where a high school kid wore a peace-arm band and got expelled, they went to the United States Supreme Court, they reversed that conviction, or In other words, they're saying that you don't have to use words. Speech can be symbolic, it could be a sign, it could be an arm band, it could be a number of things that express a point of view. But in that, the Tinker case, it was a youngster that was being disciplined by his school because what he, his symbol, in the sense, did not meet the dress code. Well, that was the argument. That was their argument. But what the Supreme Court ruled was that that symbolic gesture was protected. Right, and what these athletes are doing, I mean, many of them are speaking out, but what they do is, for some reason, the National Anthem, which is an interesting side discussion as to why the National Anthem is being played at the athletic events. They don't play God Save the Queen in soccer games in England, you know, they don't play the German National Anthem, I don't believe. So, you know, we have this tradition of playing the National Anthem before sporting events, and it's a legitimate question as to why you even do that. But having done it for decades, there are now athletes who believe that they want to express their concern about certain political issues in one way they know is going to get millions of people's attention, and that is to sit during the National Anthem, or yesterday, not even come out of the locker room. Right, and so the point, though, is that the ability, that its freedom of speech is more than just words. Right. It's conduct, it's gesture. Now, what, in my opinion, would make yesterday interesting, or make the current situation interesting, is the fact that we have one branch of our government, the President of the United States, talking about the incident, which is okay. I mean, how far does a person like the President, how much latitude does he have with freedom of speech? Well, he's got plenty, but I mean, you know, he should have not gotten involved in that. Oh, that should have. I mean, you know, saying that the owner should fire these athletes, but it's typical Trump. I mean, you know, he has a small base of 30 percent of the people who probably agree with him 100 percent, and I think he forgets that he's President of the entire United States, and he's just aggravated the entire situation, and now you see the reaction. The reaction yesterday, there are only a couple of athletes who were kneeling or whatever during the national anthem until yesterday, then entire teams in reaction to Trump, not in reaction to police brutality or whatever Kaepernick was originally protesting. That wasn't a protest the last 24 hours. That's not why LeBron James went after the President. It's because the President is weighing in. A lot of people think it's racist. A lot of people think it's inappropriate, but 30 percent of the people are probably cheering him for working on these athletes. I think you just described the politics very well with the situation. But I was looking at it from another point of view, where you have a branch of government in a sense dampening political expression. The President comes out and says, you ought to fire this person. He's not dampening anything. He's ratcheting it up, and I think that's what he doesn't realize. But if somebody actually got fired, and they came to see Jeff Portnoy, and they said, he interfered with my freedom list. Yeah, but John, the Constitution only applies to government. It applies to government. It doesn't apply to private people. But is the President a private person or the government? He probably has immunity, unfortunately. Well, for the lawsuit, yeah. But what you have is here. What you have is the government of the United States, or at least a branch of the government, talking about people's... Not in a way of saying, like, I disagree with you. I disagree with you. I don't think you're getting anywhere with this. But saying, you ought to be fired. Your job ought to be taken away. It's toothless. But I mean, we have a century of jurisprudence where city councils, state legislatures have tried to make certain speech illegal, goes back to World War I, and it continued up until even today. And many times, most times, the Supreme Court will say that speech in and of itself, you cannot prohibit. There are certain types of speech which aren't protected. Pornography, for example. Certain types of commercial speech have a limited type of protection. But when it comes to political or social issues, the court has repeatedly found that ordinance is overbroad or unconstitutional, with some rare exceptions, because they're based a lot on the political times. In World War I, they convicted a bunch of people for a treason for making statements about America's entry into the war. We saw it with the communists in the early 50s. Fortunately, we have a court that has been able to say, no, speech is protected. Doing the Vietnam era. Unless it's inciting people to violence, by the way. Right. Well, let's get clear on that. Because, well, just before I left that, and doing the Vietnam era, the Supreme Court upheld the idea that one could even burn the American flag, which many people felt found disgusting. Well, and a couple of justices did too, but still upheld the right of a person to do that. Right. And so in this case, if you're not standing for the National Anthem, it seems to me... Well, first of all, without getting too philosophical, who says you have to stand for the National Anthem? Where is that? Where is that in the Constitution or in statutes? It's just tradition that people... Who says you got to put your hand over your heart? You know, a lot of people still do. A lot of people don't. You know, I mean, these are just things that have occurred. As custom. Yeah. So there's no law that says you have to stand. That would be interesting, John. If some state would pass a law, you have to stand for the National Anthem. Obviously. And then somebody said, no way, I'm sitting. Well, one of these days, you know, I don't know. I don't know if he's done it yet. But it seems to me that at some point, the President needs to understand that he is a branch of government. Well, you know, that's not going to happen. You know, that is where somebody might be doing it. Okay, so having covered some of that, what are the... What's protected and what's not? Well, I mean, as I just said, you can't end somebody to violence. You know, speech only goes so far. There's a fine line, first of all, between speech and action, all right? But even speech that could incite violence can be on occasion and under the appropriate narrow ordinance could be prohibited. But we see that even that is... Who determines whether it's inciting violence? Is it the speaker or is it the listener? We saw this in Charlottesville. The city did not give the permit for the Nazis and the Klan to march, claiming that they could not protect the people that might otherwise want to counter-demonstrate. The court said no. You know, you have police powers. You can separate people. You cannot stop people from exercising their free speech rights no matter how repugnant that conduct is. But if someone said, let's go shoot the President, they'd probably be arrested and they would not get off on free speech. They're inciting someone to violence. But if I hold up a Nazi flag in a Jewish community, am I inciting people to violence? Well, the court said no in the Skokie case. The court said no. You had to allow the Klan to march. So what's the difference? I mean, at what point does something turn into... Or is there a difference between free speech and hate speech? Well, that's the latest kind of debate. The hate speech argument is gaining acceptance in college campuses, in some other places, that any kind of speech that demeans women or minorities or gays should be prohibited. That's the whole political correctness thing. I just have to say that I don't agree with that. I don't think words can hurt. And if words hurt, just give words back. So I've always been a proponent, even when they thought at University of Hawaii a decade ago of maybe putting in a speech code, I advised the president at that time privately, don't do it. It's supposed to be a place where ideas are communicated. Even ideas that are repulsed. Right. And people came back to me and said, well, you're a white male. You don't know what it means to be this or that. And I said, you're right. I'm a white male, but I believe in speech. I don't think speech should be censored. I remember when the free speech movement began. In Berkeley. In Berkeley. And the word was just the F word right across the chest. Sure. And most of the people that were espousing what would be considered at least controversial speech or out of where from the, I guess you would call them progressive with the left today. We're going to be taking a short break and we're coming right back with this very interesting conversation. And we're going to talk more about what is appropriate and what is not regarding the free speech debate. Thank you. This is Think Tech Hawaii, raising public awareness. Ted Rawlsson here folks. You're a host on where the drone leads our weekly show at noon on Thursdays here on Think Tech. Aloha. My name is Mark Shklav. I'm the host of Think Tech Hawaii's Law Across the Sea. Law Across the Sea comes on every other Monday at 11 a.m. Please join us. I like to bring in guests that talk about all types of things that come across the sea to Hawaii. Not just law, love, people, ideas, history. Please join us for Law Across the Sea. Aloha. Guys, don't forget to check me out right here at the Prince of Investing. I'm your host, Prince Dykes. Each and every Tuesdays at 11 a.m. Hawaii time. I'm going to be right here. Stop by here from some of the best investment minds across the globe. And real estate, finances, stocks, hedge funds, managers, all that great stuff. Thank you. Welcome back to Talk Story with John Waihe. Our special guest today is First Amendment Attorney Jeffrey Portnoy, our, actually our legal expert on the First Amendment. By the way, if anyone has any questions, call us at 808-374-2014. Jeff, we were just talking about the idea of hate speech and freedom of the speech and the controversy that universities are following all over the nation, finding all over the nation by speakers coming in and now from the left as opposed from the Berkeley types which carried the F word on their chest. And now we're having people instead talking about things that are hateful. And universities are trying to stop them from doing that. How would you distinguish if you tried, as an attorney, between speech that would be considered hateful and something that would be considered just a matter of opinion? In your opinion, any speech is free. The problem with that, and it's a good question, is it's in the eye of the beholder. I mean, what's hateful speech to you may not be hateful to me. It could be political. It could be social. That's the problem these days. And I don't know where it's going to lead. Well, let me do, you know, I, but let's say, pornography, the Supreme Court said, when you see it, you'll know it. So it's totally subjective. And that's one standard. But there's also, in law school, I remember, there was a standard. Well, there's a time, place, and manner standard. That's right. And it was that you're not supposed to yell fire in a crowded theater. Well, you can't defame somebody. That's not protected speech. You can't make false statements about people. So what's the difference between... Well, the fire in the theater is, you know, is creating a situation. It's an objective standard. Creating a situation in which you may be causing some action to occur that is damaging. I said, you know, let's go shoot the president or fire in a theater and people then start to riot and people get injured or killed. But the problem these days is that there is a vocal minority of people. On the left, which is very, very curious, who want to ban any speech which they find offensive... Which they... To the listener. ...to establish... Which they find offensive to the listener. And I think that is a slippery slope that our country for 240 years has tried hard not to permit. It's still speech. I know there are people you could have on this show that will tell you that speech can be as hurtful as a right cross to the chin. But in my view, it's simply speech and people should be able to express their views with certain limitations. And we've talked about a couple of them, but just because it's hateful to me is not the appropriate test. How much does... I can... Well, some of the arguments would be, okay, we're both two private parties. You say what you like. I say what I like. If we go get carried away, we duke it out or whatever, we end up being processed, blah, blah, blah. But does government participation in a forum that allows hate speech to occur, does that make government this underwriter of that speech? For example, if the University of Hawaii was to invite the leader of the Ku Klux Klan. Well, they wouldn't. The university wouldn't do it, but some student group might. And they would like to use taxpayers' facilities to hold it. Does that make a difference? It's the same argument about, you know, having someone speak at Alamoana Park and knowing there's going to be a counter demonstration. That's what the police are for. I mean, you know... In terms of protection, what I'm talking about more in using the words of the First Amendment, is that establishing something? Is that in some way endorsing it? No, because I think the law has made it pretty clear to governments, whether they be city councils or state governments or Congress, that in order to pass any kind of law or ordinance that is going to attempt to restrict speech, it has to be very narrowly drawn. It's going to undergo strict scrutiny. I don't want to get legal here, but the government is going to have a very difficult burden in trying to establish... So the government can't just say, you can't use my facilities. No, you're going to have a very difficult time convincing a court that there was a significant reason to limit someone's speech rights. And they've carved out various classifications, information, pornography, some types of commercial speech, things that are directed to kids, the so-called vice-verses. You can't have a meeting of... ...punographers of America. You probably could. Unless they try to show some pornography. Unless they actually show pictures. Yeah, and then they might get... It's so tough because... One reason why I'm asking this line of questioning, we got that pretty much, I think, established. Now we get to the press, okay, and the freedom of speech, the corollary of that is obviously the freedom to be able to report things, and the freedom to say things. And I can understand discussing the difference between the star advertiser and... what's the name? Breitbart? One is obviously very much an opinion piece, but they both covered what I would consider the freedom of speech. Again, going back to government's action in all of this. It seems to me that there is something challenging to the First Amendment when the president of the United States can favor news sources. It's one thing to allow newspapers to say anything they want, but I am in competition. I'm in competition as a business, and I need to survive as a business. This president's made it pretty clear that he has media that he trusts and hates. He talks about fake news. He's banned reporters from Air Force One if he doesn't like stories. I mean, we are in an era that challenges the First Amendment. We are in an era never before really seen with a president that is so outwardly hostile to the media. His comments about the New York Times, the Washington Post, CNN, even though he's not very presidential. Comments are one thing. They haven't done anything yet. They might prosecute reporters for source issues. So did Obama. Obama's administration would have been the most anti-media when it came to prosecuting or attempting to prosecute media for leaks. That's a different issue. We don't have criminal libel anymore. That was the government's effort to do what you're talking about to try to impinge on the press. By the way, I agree with you we shouldn't have that kind of libel. But when I'm talking about something a little bit more subtle and that is that media, whether we like it or not what we consider to be media today are businesses. There are important businesses because they're carrying out an important mission, but they are businesses. They need to be able to survive. But actually, John, a lot of people would say media today is something we've never seen because of the Internet. There are bloggers. They're not businesses that don't charge. What happens when I agree with you that most of the mainstream media are businesses. And so what happens when a branch of government says I'm not taking any reporters with me on this trip to XYZ, but I'm going to call back Fox News and tell them what happened. Now, what that does is that it chooses winners and losers. Well, and it delegitimizes the press. I mean, you know, presidents have always governors have always had issues with the press, but it's always been at a level that is essentially civil. It's not anymore. I mean, this president is out to destroy anyone who doesn't agree with him, whether it's a newspaper or a politician or an NFL football player. And all this country can hope is that it survives the next two plus years. Or does he call the press? Of course he calls it the line. But he's not doing anything illegal. No, at what point does it become illegal? At what point does government sponsorship of the press, of any press, affect the freedom of it? Well, I don't think the government sponsors the press very much. I mean, the press is kind of independent. It kind of weaves its way through things and tries to overcome. Well, I hope so. But it seems like when you choose somebody to give news to, you pretty much... But you can't help that, Sean. There are some access cases. We start both in the press. Now we're talking about it. In Hawaii, what we had was, I remember Richard Borreca. That's exactly right. And you took the case. Now, what that did was it made sure that everybody had equal access. Not that it changed Frank's opinion of Richard and everybody else. The state constitution can be broader than the federal constitution. I don't see the Washington Post suing, I don't think they have to force the president to put one of their reporters on Air Force One. But it's not a good environment. I mean, I'm teaching at the law school now. I'm teaching constitutional law, teaching speech. This is a fascinating but very disturbing time for those of us who believe in speech. And one justice, one more justice on the court, who knows what will happen. It's very spooky. And I'm really sorry we don't have enough time to get to the religious aspects of freedom of the speech and how that's starting to clash. I hope to do that. But Jeff, I want to tell you we've got to have you back. It was very interesting. Thank you. Aloha everyone. Join us again for Talk Story with John Whitehead.