 Our new general counsel, Eileen Hershinoff, who's going to introduce Susan Herman. We are thrilled to have Eileen in the Wicca Media Foundation. She joined in recently, just a few months ago, and she actually started her career at the ACLU, which is exciting, but she was in private practice and then at the Open Society Foundations and most recently as general counsel at Consumers Union, which advocates for consumers. She has an incredible background. We couldn't be more thrilled to have her in the foundation and I would like to bring her up to introduce Susan Herman. Thank you. Thank you. Thank you, Phoebe. And it's wonderful to be here, my first wicca mania, and as the relatively new general counsel for the Wicca Media Foundation and a former lawyer, as you heard, for the ACLU. It's a great pleasure and honor and I truly mean that for me to get to introduce one of our keynote speakers this morning, Susan Herman, the president of the ACLU. And I'm going to say a few words about Susan's background in a moment, but first I wanted to say something about the ACLU and our movement, because we heard yesterday about the need for partners and allies, and the ACLU is one of our most valued partners and allies, not just in the United States, but for work that we're doing globally. There's a reason that the Wicca Media Foundation and the technology infrastructure that we use for our movement is based in the United States. It is in large part because there are stronger legal protections for free expression and for intermediary platforms that host the speech of others in the United States and virtually anywhere else. And a large reason why those protections are so strong is because of the work of the ACLU. United States was not always a leader in protecting free expression. And as Susan will tell you, a lot of these civil liberties and civil rights that we depend on to do the work we do are under attack in the United States as well as in the rest of the world. Many of the great victories for free speech and access to knowledge, for religious freedom and women's autonomy over their lives and bodies, for immigrants' rights, for religious freedom, for the rights of people of color, for the rights of poor children to have equal opportunity at education to richer children were cases that were won by the ACLU over the decades. The vastly overbroad constraints on rights and liberties that were imposed in the name of national security in the United States after 9-11 were challenged first and foremost by the ACLU, others as well. But it was, for example, the ACLU that first brought into the public the memos about torture being engaged in by the U.S. government. And importantly for us in the Wikimedia movement, the ACLU has been one of the most prominent actors in the U.S. concerning whether and how the right to free expression and assembly and access to information guaranteed by the U.S. Constitution would be applied to new technologies that we depend on. That was not a given. Those were cases by the U.S. that said no. The Internet is a place where the First Amendment and protections of free expression apply. More recently, the ACLU has been a great partner to the Wikimedia Foundation and our movement, and we've cooperated in a number of lawsuits, including efforts to keep the Internet open and anonymous and free of government control and surveillance, which, of course, it is not at this point. The ACLU actually currently represents the Wikimedia Foundation in a case against the United States National Security Agency, the NSA, which Susan will talk about, that this is not just a United States issue. What the United States government does explicitly and implicitly about free speech and the rights of vulnerable groups and what it doesn't do is a real example to the rest of the world. And while there'd be censorship and problems no matter where in many places as we've seen, it is very clear to me in my work that when you have an administration in the U.S. that doesn't care about facts or thinks news is fake and nothing can be neutral and doesn't care about free expression, that gives permission in very, very significant and harmful ways to autocrats the world round. In the tribute to Basel yesterday and at Catherine and Kristoff's plenary on movement strategy, you heard several speakers say that the vision, goal and strategies for making free culture and knowledge accessible globally are inherently political. We haven't always expressly acknowledged this, but we need to explicitly acknowledge it. And concurrent at the same time with that strategy work, we need to work to advocate and mobilize to protect our vision from both private and public actors who feel deeply threatened and are deeply opposed to free access to knowledge in individual countries and even globally. We can't have a successful global movement for free access to all knowledge if our users around the world and contributors can't be assured of anonymity and privacy with regard to the content they contribute to our sites and the content they choose to read. We can't have a successful global movement for open source and free access to knowledge if the internet is privatized and commercialized and surveilled by commercial interests and government interests. We can't have a successful movement if governments are keeping records of who we are and what we look at and what we say online and with whom we say it. We can't have a successful movement if governments gain control over what we read, what we see, what's offered up to us when we go on the internet or any other channels or even if we know that they might be doing it, so we begin to self-censor. Our users at liberties and even lives come under threat because what they read or contribute to Wikipedia, that's what we're fighting. So we talk about the technology that we need. Magnus talked about that. Anastasia talked and other people talked last night about how we reach out to communities and voices we don't hear. But at the same time we have to be advocating and mobilizing both in those regions and localities and elsewhere to make that vision possible, which brings me, finally, you're probably saying, back to Susan. Susan Herman is a terrific choice to lead the ACLU during these difficult times. A little bit of bio on her when she was elected president of the ACLU in late 2008, she had already served on its national board of directors for 20 years and had been its general counsel for 10 years. She's also a law professor at the Brooklyn Law School in New York City, where she teaches constitutional law and criminal procedure, as well as seminars on law and literature and terrorism and civil liberties. She writes extensively on these subjects and one of her recent books called Taking Liberties, the War on Terror and the Erosion of American Democracy, has won a number of awards and is as relevant today as when it was written, which, by the way, was under the administration of Democratic President Obama. We are therefore delighted to welcome Susan Herman to Wikimania 2017. Well, thank you Eileen for that lovely introduction and let me see how delighted I am that we have an ACLU alum as general counsel to Wikimedia to kind of cement the marriage and our alliance. So good morning to you all, bonjour. I think my report from the trenches should begin by finding, I don't see the clicker. I'm going to show you a PowerPoint, but not if I don't have the... Oh, it's fell down there, okay. Thank you, I didn't even see it. My report from the trenches is that the ACLU has been really incredibly busy for the last 200 days or so. And I'm sure I don't need to tell you what happened in January that has sort of ratcheted up the threats to civil liberties across like all 14 issues that we work on. It's like everything is under siege. However, I want to also emphasize because we have an international audience here that it is not only the United States that has been experiencing a turn to authoritarianism. It's something that seems to be creeping all over the world. Great threats not only to individual civil liberties. Eileen mentioned a number of the kinds of threats that were under the different particular rights, but I think a threat to the very premises of liberal democracy. Now, to me, there are a number of key features of a liberal democracy, and those are really kind of what the ACLU does. We represent freedom like freedom of speech. We represent equality, equal protection for all citizens, due process, and democracy. Everybody should vote, you know, or have the opportunity to vote. And those I think are the kind of preconditions of democracy. If you don't have all of those, you don't have a democracy. So, how do you lose a democracy? Well, here's what happens. One of the things that happens is that the autocrat wants to, first of all, and in some ways most fundamentally, as Eileen was saying, take away First Amendment rights. I think it is a feature of autocrats that they do not tolerate dissent or criticism. They don't want anybody building movements or opposing what they are doing or talking about what they've been doing. In addition to the threats to free speech and free press, which I'm going to want to talk about, there are two other kinds of characteristics of the autocracies that we're seeing today. The second, in addition to the threat to freedom of speech and the press, including the internet, is a kind of appeal to tribalism in all different forms, nativism, anti-multiculturalism, in a way that is an attempt to turn people against each other, to have people demonize each other, to hate or fear each other because of their religious or political beliefs or their ethnicity or their nationality. That kind of a divisiveness and fear-mongering, I think, is also very important, which I'm also going to address. The third feature, which is I think also a very important thing which relates to speech in particular, is the issue of privacy. You all know about the idea in 1984 about the big brother state. The whole idea of having people under surveillance that the government knows what you're doing so they can watch and see if you're going to be doing anything that's too critical or too disruptive, or if they're suspicious of you because you're one of those ethnicities, you're the Muslim, you're Hispanic, you're the Kurd, you whatever it is, they want to be suspicious of you. But then the other side of the coin of large government surveillance is government secrecy. These governments, the autocratic government claims the right to know everything that we're doing, but also the power not to tell us anything that they're doing. Now, I think that all those features in combination are a tremendous threat to democracy. In the United States, we have been, until like the last 200 days maybe, very complacent about the fact that we were a secure liberal democracy. And part of that is because we have the First Amendment, which gives a constitutional right to freedom of speech and the press. And it always felt like it can't happen here. Well, the first thing I want to tell you is it has happened even in the United States, despite the First Amendment. And so one of the reasons why the ACLU came into being is that a parchment barrier, just having the words of the First Amendment or the Equal Protection Clause on paper, is not enough. So very early in the American Republic, in 1798, we had this sedition act, which punished people for saying things that were critical of the administration. It was considered to be unpatriotic to criticize the government. This law was passed when all branches of the United States government were controlled by one party, the Federalists. John Adams was the president at the time. There was a Federalist Congress, and because they were like the first administrations, they had appointed all the judges who were all Federalists too. So the Sedition Act said that you could be prosecuted, you criminally prosecuted if you said things that were, you know, overly critical of the government. It's a very vague statute that condemns Seditious speech. And this act was used to prosecute quite a number of people, coincidentally enough, who were of a different party. So it was all the Democratic Republican editors and writers who were being prosecuted. There were 18 people indicted under the Sedition Act, 14 prosecuted, and 10 convicted by this three branch, the prosecutors, the president. Everybody was the same party, and they just didn't like the criticism they were getting from the Democrat Republicans. One example of somebody who was prosecuted for what we might today call fake news, Matthew Lyons was represented if he was elected to Congress from the state of Vermont. And he was very critical of President Adams, so he was put on trial for saying the following about President Adams. He said, every consideration of public welfare is swallowed up in a continual grasp of power in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice. I'll pause, sound familiar? Well, Matthew Lyons was convicted and he spent four months in jail, and he became famous because he wrote an account of his trial, which he thought was unfair, and the conditions in the jail under which he was being kept, which he thought were also pretty noxious. However, before he wrote that account, there had initially been an attempt to keep him from having any pen or paper so that he couldn't tell anybody what was happening, obviously, you know, pre the iPhone, pre everything. Well, he managed somehow to get the pen and paper and he published his account of what was happening in the jail, which led to another prosecution of Matthew Lyons for criticizing the federal courts. That also was considered to be unpatriotic and how dare he say that the American justice system was not just. Well, in some ways the happy ending to this case is that there was regime change. Matthew Lyons was re-elected to the House of Representatives, despite the fact that he was in jail and then under indictment. This is what happened in Congress in those days. There's Matthew Lyons getting involved in a fight on the floor of Congress. Yeah, it's pretty close again to what seems to be happening today. But after Thomas Jefferson was elected president in 1800 at the different party, the Sedition Act expired. So you think, okay, in a happy ending. At the time people had talked about whether or not that was a violation of first, you know, First Amendment rights and the federalists didn't think so because they trusted themselves to use this enormous vague statute only when there was something really wrong. There was criticism, but you know, there it was. So you would think, okay, you know, lesson learned. Well, in a not so much, here's another, these are not the only examples, but in the interest of time, I'm only giving you a soup of history. But around the time of World War I, there was another Sedition Act passed and you can see this also just has this very vague language. And again, the idea is that dissent is on patriotic. So if anybody willfully, others Prince writes or publishes any disloyal, profane, scurrilous or abusive language about the form of government or the Constitution of the United States or the military or naval forces of the United States, they can be prosecuted. To give you one example of somebody who was prosecuted during World War I under this statute, Charles Schenck published this pamphlet, which you can see as headed, long lived the Constitution of the United States. Schenck's theory, which the courts did not agree with, was that the draft was involuntary servitude. So he wanted to complain about the draft, for that he was criminally prosecuted, convicted and sent to jail. Now around World War I, there was a lot of intolerance for any form of descent or unpopular speech. In addition to prosecution for people for their political views, there was a lot of prosecution of labor organizers and other people who organized. So we now bring into the story the ACLU, our hero. So in 1920 the ACLU was founded and the limits on free speech that were happening, the fact that people could not say things that were considered to be unpopular, was one of the chief reasons for the founding of the ACLU. The principal founders of the ACLU, Roger Baldwin and Crystal Eastman, had during the war been working with an organization called Americans United Against Militarism. And Baldwin himself was a conscientious objector. They were working with conscientious objectors who they felt had the right, again, to disagree with the war and to do alternative service. Except Baldwin was so serious about his objection that he ended up spending a year in prison because he wouldn't even do the alternative service. He thought that was too much like, you know, contributing to the war effort. In addition to those two founders, 1920, of course, is the year in which women first got the vote. And a lot of people don't know that this unusually is not a very male organization we had among our founders, quite a number of prominent women, including Jeanette Rankin, the first woman elected to Congress, who got to read the text of the 19th Amendment, giving the women the vote on the floor of Congress. Social worker Jane Adams, you've all heard of Helen Keller. So what the ACLU set out to do was to try to get the courts to protect the First Amendment and try to get the public to understand why protecting unpopular speech was important, how dissent was not in fact unpatriotic. So this is a report that was issued almost immediately in 1921, explaining why it's important to value speech even if you don't agree with what people are saying. Roger Baldwin was very fond of holding demonstrations. Another thing that happens when you have an autocracy is they won't let you demonstrate, you know, they crack down. And we've all seen the photos from all over the world, including the United States, of the police trying to, you know, get people off of the streets and get them from saying what they would have to say. Well, Roger Baldwin liked to have a demonstration in which he would read aloud very dramatically the text of the First Amendment, you know, we have a freedom of speech, et cetera, and we would just wait for them to arrest him while he was reading the First Amendment. Okay, so, you know, he thought that that was very ironic. So the other part of the ACLU strategy was that you had to get the courts to be willing to defend unpatriotic speech. In the Schenck case, I just showed you Charles Schenck, the Supreme Court said, perfectly constitutional, that's not inconsistent with the First Amendment to prosecute people for seditious speech, because after all, that's dangerous. It's the time of war. What do you expect? So the ACLU did a lot of litigating in a lot of courts in a lot of different cases to try to convince the courts that they should be standing up and protecting the First Amendment and interpreting it more expansively. Prosecutions continued, both by the states and the federal government, here's Anita Whitney, who was a labor organizer, Angelo Herndon, who turned to the Communist Party because he thought it was the only way that racial justice was ever going to come to the United States. And these people were being prosecuted for their speech, for their unpopular speech, and nevertheless, the ACLU persisted. Kept arguing in court, and there's a whole lot of, you know, an entire course in the First Amendment and how we finally did get, and you with some help and some allies, got the courts to agree that dissent is patriotic and should be protected. And remarkably, have you heard of these two little girls, Marie and Gathie Barnett? They lived in West Virginia. And during World War I, they were going to a school, a public school in West Virginia and were required to salute the flag. However, their parents were Jehovah's Witnesses. And to Jehovah's Witnesses, saluting a flag is like, you know, swearing to an idol. It's considered profane and not something they're religion allowed. So the little girls were told that they should not salute the flag when everybody else did. So they didn't, and they were suspended from school and then because they weren't going to school because they refused to pledge allegiance to the flag, their parents were then prosecuted, I think, or at least gone after somehow because their children were not in school. They were playing hooky, Cache 22, right? So we litigated, we wrote an amicus brief in the Supreme Court. The case was litigated and quite remarkably, in 1943, in the middle of World War II, the Supreme Court said, you can't make people pledge allegiance to the flag but violates their religion. Isn't that remarkable? The middle of the war. And I think it's a real turnaround from what had been happening during World War I. And if you're ever writing a brief involving the First Amendment, you need the quotes from this case, Robert Jackson, who became the prosecutor at Nuremberg, wrote all these memorable things. If there is any fixed star in our constitutional constellation, it is that no official higher petty can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or for citizens to confess by word or act their faith therein. So this is a ringing statement of what people thought the First Amendment had actually said all along, but you notice it took a while to get there. So one of the mottos of the ACLU, which you can see on merchandise here, is dissent is patriotic, not just that it should be tolerated, not just you should tolerate somebody saying something you disagree with, but in fact most of the great ideas in the world have become with somebody saying something that a lot of people thought was outrageous, from Galileo on down. So as Eileen was saying, the ACLU did a lot of litigating throughout the 20th century, you know, since 1920 on, and then in the 21st century. And for the most part, the cases were further expanding the view of what the First Amendment protected, including First Amendment protections on the internet. So this is one of the major cases. We had a number of cases where Congress would pass laws doing things like, let's protect children by criminalizing anybody who publishes bad words on the internet, anything children shouldn't see. Again, those laws were very, very vague, very open, and would have really chilled a lot of speech on the internet. And we won several different cases in the Supreme Court saying, you can't do that. You can't just say, you know, you can't say that people aren't gonna like it. So in addition to that, we've also litigated many cases and won many another big problem in terms of freedom on the internet is for school children. We've litigated, we have 50 affiliates, we have a presence in every state in the United States. And one of the really things that really keeps our affiliates very busy is school children who find themselves punished for things that they have said on the internet, on social media. So you criticize your teacher, you say the whole monitor was really obnoxious, and you can find yourself disciplined in school, even for something that you've said that's not on school grounds and not connected with school in any way. Now to us, that also was a violation of the First Amendment. Children should have a First Amendment freedom to say things, even if they're critical, even if they're dissenting, even if they're not popular. Another campaign that we had for net neutrality was when we thought we had won, but one of the great things that Roger Baldwin said, our principal organizer, he said, no battle for civil liberties ever remains won. And that turns out to be true because we're now fighting to keep the net neutrality that we fought so hard to get in the first place. No civil liberties battle remains won. So now I want to turn to today and some of the ideas of what the threats are to free speech today and to the press because Roger Baldwin was absolutely right and all the principles that we thought we had established are now somehow open to question again. There is the president being completely intolerant of any sort of criticism and branding any media that criticizes him as being fake news, just accusing him of all of being inaccurate. Again, totally rejecting the idea that in a democracy people may have different ideas that dissent is patriotic, that criticism is appropriate, that people are expressing different points of view. So you may recall that during the campaign one of the things that Donald Trump campaigned on, one of his platform items was that he wanted to expand the libel laws so that if somebody said something about you that you didn't like you would be able to drag them into court and sue them and you make them pay damages. Now that's not only a matter of punishing them, of course, but that's also a matter of trying to chill people, trying to prevent them from saying things that you don't like because then they're going to be afraid that you're going to sue them and Matthew Lyand is not going to dare to say anything about John Adams because then he's going to get sued and he might have to pay a large verdict. Well, you haven't heard much about the libel law expansion from the President or from Congress lately and that's for the very good reason that the federal government has nothing to do with libel laws in the United States which I'm not sure that Mr. Trump knew at the time. But the libel laws, in fact, are a matter of state law. The states all decide what their libel laws should be and there are places where we have had to challenge defamation lawsuits, libel laws in New York Times versus Sullivan, a very famous case about can you criticize a public figure or can they sue you because you call them a segregationist and a racist when in fact they are. So again, a whole lot of work that we end up having to do is to try to protect people's right to speech. So here's an interesting case that you may have heard of lately. Anybody watch John Oliver? Okay, the comedian. Okay, so John Oliver had a show that he did on a coal baron named Robert Murray. Anybody see that one? Okay, so he said some things. You know John Oliver. He's not always rated G. And so he said some things that we don't want that one yet. There, we want that one. He said some things that were anybody can say each shit, Bob, and like things like that. Anyway, the bottom line is after Murray's show, after Oliver's show, Mr. Murray did not like what John Oliver had been saying about him. He found it very offensive, even though I think, you know, there's probably a great defensive truth, and there's also the kind of comedian's license here. So Murray sued Oliver in the defamation lawsuit in West Virginia court. And you might be interested, I don't think you can read it from here, and I can't read it from here, either, but our legal director of the ACLU of West Virginia filed an amicus brief, a friend of the court brief in the Northern District of West Virginia in the lawsuit on behalf of Oliver. And if you can read the table of contents, it's been referred to as the sassiest brief. Okay, if you can't read it from where you are, I recommend looking it up in this case, because it really has point headings like, oh, come on, you can't say that, Bob, or, you know, don't you know you can't bring a lawsuit just because you're offended but in better language. If I could read it to you, I would. But I do recommend looking up the ACLU brief. Jamie Lynn Crofts is our hero here, the legal director from West Virginia in this great brief. Again, just defending, you know, you have a right to say things and this isn't against the government, but private people can also really chill speech by bringing all these defamation suits. So that's one there. So another place where free speech is also at risk is on campuses. I'm sure you've also heard that many campuses, some public universities which are directly controlled by the First Amendment and other places which are not, have been trying to keep their echo chambers pure and not have a speaker who's going to be upsetting to the students because they have a different point of view. Now, we sometimes are unpopular with our friends and allies because we mean what we say about the First Amendment. We mean that you can say what you want even if we really very much disagree with what you say. So we have been in the difficult position of having to defend Nazis in Skokie to have their parade, having to defend members of the Ku Klux Klan, and having to defend Milo Yiannopoulos. Okay, we will do that. We think that he has a right to speak and express his stupid viewpoint same as anybody else. Yeah. Yeah, I don't have to be neutral about his viewpoint, but I think, you know, he doesn't have to be neutral either if he has a viewpoint. He can have it. So I think that it's also a problem because I think that as we become so hyper partisan, the fact that people want to retreat into their comfort zone and only hear from people who think the same things they do, I think is one of the greatest threats to our future as a democracy. In addition, another thing that the states are doing is there are a number of laws pending in a whole lot of states, the ones that are blue on the map here and this is an interactive map. If you want to find out more about the particular laws, you can go on the ACLU website and just look up this map. But there are some 15 states that have laws pending. These are not laws that have passed yet, but they've been introduced to try to severely punish protesters and demonstrators. One law, I think Arizona and a couple of other states would make it, would make an organizer of a protest subject to asset forfeiture if there's violence at the demonstration. So that means if you help to organize the demonstration and somebody else commits an act of violence that you weren't involved in and didn't even know about, you could lose your house. Okay, good idea? Oh, come on. So who's going to organize a demonstration about anything if in fact that is a possibility? This is not passed. It's just pending, but that's the kinds of things that legislators are thinking. They're sick and tired of people disagreeing and being out there in public complaining about a whole range of political things. A couple of other laws pending, you know, proposed legislation that I'll tell you about. Another one is one that would provide severe punishment for what it would call a crime of economic terrorism which means blocking a sidewalk during a demonstration so that your people can't go to the store. And in some ways the most shocking in the Dakotas, you know, recently there's been all these standing rock protests in the Dakotas. This law would make it not a crime to run over a demonstrator accidentally. If they were in your way, I'm like, hey, what could you do? So it seems to me that having all this hostility toward any dissenting viewpoint trying to clamp down, really run an autocracy where the leader's view is all that you're going to hear where we're discouraging any different viewpoints is a real problem. So I want to end my comments on the First Amendment by showing you this is a two-minute video that actually puts together our work on the First Amendment with our work on behalf of immigrants. So Camilla, if you could play the video that would be great. The president banning citizens from seven Muslim-majority countries from entering the U.S. He's going after Muslims and discriminating on the basis of religion. Demonstrations across the country right now to these new deportation actions from the ICE. My first hour in office, those people are gone. President-elect Donald Trump calling for jail time for individuals who set fire to the American flag. Just because I don't like it doesn't mean that it's not legal. What do you want this country to be? Only what you like? You know, you have one guy over there shouting, get him the hell out of here. Get him out of here. Get out. Do you feel accepted here? Do I have to answer to that? Sometimes, no. I'm an Indian Hindu who's married to a Pakistani Muslim and I've experienced what this was like. I'm very American. This is from immigration. So you think it's going to be very open? Our daughter still gets stopped every time she flies back into this country although she was born and raised here. I don't think a lot of people realize what's going on. I feel that there's not only one language, one way of thinking, one color, one, one, one everything, which is the feeling I'm feeling now. I agree. I think it's just a great ad. It's just, you know, it says so much. And this is actually an example of an alliance because there's a young man who works for, I think, an ad agency who said, I have an idea. And he wrote me an email because his father knew somebody who taught with a friend of a friend of a friend of mine. And I thought, hey, you know, I should tell the communications department about this. So it's lucky I did because we've won awards for that and people think it's great. But let me tell you who doesn't think it's great. The transit authority in D.C. We went to place the ad in the metro in D.C. and they rejected the ad on the ground that it's too controversial. They also, they now have this policy which if you read it it's just this incredible vague policy. And what they've said is they don't want controversy in the subways on the metro. They don't want things that are going to get people upset or that is, there's some vague, horrible language about something that takes a position on an issue that's controversial. Now, you know, what's controversial about the First Amendment? Oh, come on. So this reminds me, does it remind you of Roger Baldwin reading the First Amendment and they would arrest him because he wasn't allowed to read the First Amendment in public? Well, you know, now you're not allowed to post the First Amendment in public in other languages. So I am happy to tell you that this past week we have filed a lawsuit and we didn't have Jamie Lynn Croft's write the brief so it doesn't actually say, oh, come on. It kind of says standard lawyer-like stuff but it was brought by the three affiliates in D.C., Maryland and Virginia all around to just say, you know, how can you not have a right to post the First Amendment in Spanish and Arabic if that is in fact too controversial? Not only is that a severe threat to the First Amendment but it's also the other idea that I was talking about about demonizing people. You know, we don't even want to think about somebody who speaks Arabic being a consumer of the First Amendment because, you know, who wants to hear their ideas anyway. So, you know, part one, you know, the one of the three pillars of autocracy, the First Amendment, I think, is in serious danger and we really all have to stay committed to the First Amendment and we have to stay willing. I think if you're thinking to yourself, you know, have I been feeling censored lately? Am I afraid to say something because it's not going to be popular or because, you know, I'm afraid of whom I take notice. I'm afraid to have the demonstration. I think number one thing that you have to do is start fighting that instinct. That's how we lose democracy if people start feeling afraid. So, number two, the surveillance state. This, to me, is also very much connected with free speech because I think that the people who wrote our Fourth Amendment, which guarantees our right to be free from unreasonable searches and seizures, very much saw a connection between free speech and surveillance. My sort of model that I have in my mind is the authorities rifling through Benjamin Franklin's desk and, you know, the framers of the Constitution were people who were revolutionaries. They all had seditious literature in their houses and they all, you know, had the tea or the molasses or whatever on which they didn't pay the duty, so they didn't want people coming into their homes and looking to see what they did. The whole idea is if you don't have any privacy, you know, a private enclave in which you can form your thoughts, you know, read about things, have conversations, et cetera, you cannot really be a true participant in the political process. Now, again, you know, this idea seemed to be pretty well-established and there was a whole lot of law about how the government can't search you or search your conversations or your libraries, et cetera, unless they have a warrant, they have to go to a judicial officer and convince them that they have a really good reason, as opposed to just drag net searching. But this proposition came under serious challenge after 9-11. And this was, Eileen was talking about the book that I wrote and one of the chief reasons why I wrote that book was to talk about how the changes in law after 9-11 were threats to ordinary Americans. Now, as I'm sure you were aware, the Patriot acted all of those, you know, NSA searches and all are incredibly complicated. They have all these spy novel names like Prism and Solar Wind and, you know, things like that. So I'm not going to even bother you with the slides of charts and graphs of how it all works because I think that this, um, this next slide is a pretty good summary. If you can't see it in the back, the caption is, get me everything on everybody. So that was the basic idea, the idea that, again, in the same way that we had to, you know, just limit a little bit of speech in order to be safe during wartime because if it's a war, you have to be patriotic and get with the program. The idea here is that it is not too much of an expense to try to cut down on people's privacy because we have to in the interest of national security, we have to find out what people are doing. Well, the ACLU didn't much agree with that one anyway. We think that, you know, privacy was being undervalued there and that the needs of security were being extremely overvalued because there was, it has never really been any showing that the mega surveillance unleashed by the Patriot Act and so it has done anything to keep anybody safe. But in fact, it does cause enormous violations of privacy. So we have done a lot of litigation since the Patriot Act about a lot of different provisions and some of it culminated in this lawsuit in the Supreme Court which was a challenge to the collection of foreign intelligence information as it's called from people outside the United States even if they're in conversation with people inside the United States. So we were representing Amnesty International because they have their main office in London as some of you may know and there's a lot of conversation that they have over telephone by email whatever about things that they're working on including political prisoners and what about child children being drafted to soldiers and so forth. And for a very good reason they thought that the government might consider a lot of what they talked about to be foreign intelligence because it's just about what's happening in other governments etc would meet the definition. So they thought it was quite likely that the government had them under surveillance and so did the people who they needed to talk to. So Amnesty in addition to some other people who were very concerned about whether people were being deterred from talking to people in the United States by fear because of fear that the government was listening brought this lawsuit and they said you know we're concerned we have all that we have to talk to people in other countries to get information about what's going on and our sources are drying up. We had a Middle East scholar who said the same thing his sources wouldn't talk to him. We had a woman who was a defense attorney for one of the Guantanamo detainees detainees who needed to talk to friends and family in Yemen to try to find out if there was a defense for this man and they wouldn't talk to her on the phone because they were afraid the government was going to listen and next thing you knew they would be you know have the the drone at their doorstep or you know etc. So we brought this lawsuit and there's this legal concept called standing which means you can't just bring a lawsuit because you don't like something that's going on you have to show that you're injured by it. Well the Supreme Court said oh there's no injury there because in order to bring a lawsuit against covert surveillance you would have to prove that you've been subject to covert so the surveillance. Catch 22? You know the whole point of covert surveillance is you're not supposed to know so the court refused to litigate to decide whether or not that program was constitutional because of the fact that amnesty could not prove that the government have them under covert surveillance. Now this may sound somewhat ridiculous to you and it also sounded ridiculous to this guy. You all know about Edward Snowden and you may or may not know that Edward Snowden has been a client of the ACLU because he has had his own problems as you know. And he is said that one of the reasons that he decided to go public and expose some of the covert surveillance programs that he knew about was when he found out about the Supreme Court decision in Clapper versus Amnesty International. I've described to you how over the course of the 20th century and then part of the 21st the ACLU was part of the development of the expansion of the First Amendment and really getting the courts on board to help protect First Amendment rights. Well Clapper versus Amnesty International was the Supreme Court saying don't tell us you know don't ask us we don't want any part of this. So that was where Snowden decided that the American people needed to know this. So do the American people care? There were a lot of people who cared very much about privacy and saw the connection between privacy and surveillance including librarians. It turns out librarians are really the custodians of a lot of these democratic values. And here were the yeah let's hear it librarians. So these people the man on the front wearing holding his patriot act but is George Christian who was with the library connection in Connecticut. And he got a demand from the government for records of a library patron computer records and he decided he was going to push back and he didn't want to give it to the government. There in the statute that required him to give information to the government about his library patrons even without a court order. There's also a gag order which says if you tell anybody that the FBI asked you for this information ever you can be prosecuted. Well George decided to tell his fellow executive committee members of the library connections so they could figure out what to do. And they decided to bring a lawsuit saying you can't make us do this. The other thing that they really wanted to do in addition to being concerned about you know just challenging the particular request involved was around the time that this happened around 2004-2005 the provision of the patriot act that allowed the government agents to get information from the library was up for renewal and they wanted to testify in Congress to say wait a minute you know here's what our experience is like here's what it's like when federal agents start demanding library records and they wanted to make sure that Congress knew that this kind of thing was happening which I think at the time they did not. Well they were told that they didn't that they were not allowed to testify in Congress because that would violate the gag order. Okay now how about that? You know you can't even tell the government. So they had actually been preceded by another ACLU client who had to be John Doe for six years. Nick Merrill who I can now tell you his name is an internet service provider in New York and he also had demands government demands for information about some of his clients. He had studied something about the Constitution in college so he also decided to stand up but because of the gag order he was not allowed to tell anybody that he was the one who was challenging these laws. So the case was called Doe Against Gonzales Doe against New KZE going whoever was attorney general for six years. And I have a chapter in my book on Nick because it was incredible what he went to how much commitment he had to preserving Fourth Amendment principles you know privacy as well as First Amendment. He said at one point he wrote actually an anonymous op-ed in the Washington Post you know under the name John Doe and he explained that he his girlfriend had left him because she thought he she was hiding something from her. He said he had to hide his court papers where she wouldn't look and when he was going for you know some of you know to meet with the lawyers he would have to lie with her about where he was going and he just wasn't allowed to tell her he could have been prosecuted for telling his girlfriend just as the library connection people could have been prosecuted for telling their children their teenage children what they were doing. So he didn't and she just you know got fed up she thought he was you know hiding something and so she left. That litigation was successful a little bit the gag order was modified a little bit but not nearly enough. So again you notice the problem that's why the subtitle of my book was not just about privacy but about the threat to democracy. How can you have a democracy when the people who have information about the impact of government surveillance are not allowed to tell the lawmakers. Again so the courts weren't all that helpful. So today we have a very interesting client which you will appreciate. Let's hear it for Wikimedia. So this is one of the programs that Edwards about one of the programs that Edwards Nodin disclosed he told all of us that in addition to the programs that we knew about that were authorized by the Patriot Act and so forth there was what's called upstream surveillance of data where by installing devices on the backbone of the internet I've learned to say this this is not my natural language. The United States government can monitor almost all international and many domestic text-based communications and then getting all the pieces they can then put them back together and search them in different ways. So it's just an incredible dragnet of getting all this information about you know it's really like get me everything on everybody almost. And so Wikimedia as one of our allies has started as a plaintiff in this lawsuit and we are challenging in court the idea that the government can do this. So does this sound familiar? The district court dismissed the lawsuit saying you don't have standing how can you prove you've been subject to Wikimedia to anti-covert surveillance? Okay pretty likely if the government is doing all of this they are monitoring you know apparently they're monitoring people browsing Wikipedia all over the world you know certainly internationally. Okay so you know the big lawsuit the Fourth Circuit the Court of Appeals I'm happy to tell you reversed that finding so the lawsuit continues. So good luck to all of us because this is really our project and you can see how again if people who were every time you look at with Wikipedia if you knew that the government knew what you were looking at are you looking at how a dam is built? Hmm why are you looking at how a dam is built? Are you planning to bomb the dam? Oh you're interested in the biography of Osama bin Laden why is that? Okay so there's a lot of you know harm there so one of the co-plaintiffs in the Wikimedia suit is Penn the author organization of writers and authors and they tried for the first time to try to do a quantification of what the chilling effect is from all this government surveillance so you may be able to see there these are pretty astonishing results they sent a survey out to all of their members they have a lot of members you know journalists writers authors and 28% of those surveys said that they curtailed or avoided social media activities because of their concern about surveillance and that the government was watching and an additional 12% had seriously considered doing so that's 40% of the people who are really being negatively affected by their fear of government surveillance 24% had deliberately avoided certain topics and phone or email conversations another 9% have seriously considered it 16% avoided writing or speaking about a particular topic another 11% have seriously considered it now this I think is one of the answers it's one of the answers that I like to give when people say well why should I care what the government knows about me if I'm not doing anything wrong I think the reason we need to care is that if you're afraid that the government is watching and you don't know what might happen you don't know if they might start an investigation or put you on a no-fly list or audit your taxes or you know who knows you might self-censor so this is an attempt by Penn to then do an international survey which some of you might find interesting asking some of the same questions about the impact of mass surveillance on writers globally after their very interesting American results so you can look at the studies if you're interested on the Penn website Amnesty International which has really been rising to the occasion here did its own poll with YouGov on mass government surveillance and came to in some ways very similar results finding that people really were chilled by again you can look up the study of the questions they asking they're asking here if you assume that government is intercepting and storing the data collected from the use of your internet and mobile phones would you be more or less likely to do each of the following or would it make no difference and so again trying to trace what the actual impact is so the other thing I thought you would find interesting is this chart about countries and the percentage who were against the United States spying on the internet and mobile so this is just new public opinion polls and you'll see Canada is pretty far up there to force from the bottom number of other countries the UK there have been a lot of battles about fighting back against what they call the snoopers charter are they gonna in fact gonna allow that to happen but you notice is on the top of the list the people who are the most concerned it's the Germans okay and most people will tell you that that's because of their long experience with the Stasi they know the answer to why should I care what the government just knows about me or what they're looking at even if I'm not a terrorist even if I'm not doing anything wrong so Pan and amnesty again are both co plaintiffs in the Wikimedia lawsuit so the next thing I was saying before that the other side of all this surveillance is the government lack of transparency so another thing that happened after 9-11 was that the government was just drying up they just didn't want to tell anything about what they were doing because the theory was if we tell the enemy the terrorists what we're doing to keep them under surveillance then they're gonna accommodate and adapt and we won't be able to catch them so there's this whole mosaic theory we can't tell them even a tiny little piece of what we're doing because then they might be able to put the pieces together and then it would be a problem is it true you know we don't really know but they were keeping a whole lot of secrets so these two ACLU lawyers at the time I'm Ray Tsing and Jamil Jaffer had the idea to use a law called the freedom of information act to demand that the government turn over records about various things and one of the senior lawyers in the office you know senior to them at the time said oh come on you really think any court is gonna order the government to turn over information if they're claiming that it's in the interest of national security not to he said you know this is really naive of you I'll give you a nickel for every page that you actually get well as Eileen was saying one of the things that we got as a result of I'm Ray and Jamil using the freedom of information act was all those office of legal counsel memos about how they could define torture around waterboarding okay and I'm sorry to tell you that the senior lawyer had to renege on the bed it was hundreds of thousands of pages so an example of a couple of people making a difference to the world I think that conversation that they had really made an enormous difference in terms of what we know about what the government is doing so we have persisted on this too we have all sorts of lawsuits pending now about documentations about the implementation of the Muslim ban one thing that we did after we won the court order prohibiting the enforcement of the Muslim ban we were hearing a lot from here and there that the border patrol agents might not actually be complying with the order so we had all of our state affiliates simultaneously do freedom of information requests for information about what was happening in the airports in their states so that we could put that together and just try to find out what was actually happening which is a time when it's actually terrific to be a national organization with state affiliates we've also filed freedom of information act claims to try to get records of the government use of the foreign intelligence surveillance act we're trying to find out more about how the government makes decisions about the targeted killing who they just send the drones overseas to Yemen or to kill the TSA what are they doing in terms of observations so you know just a whole bunch of examples so we've really been in the freedom of information business and if you want to know why here's one of my favorite quotes this is from Elaine Scarry who teaches English at Harvard and she puts it together I think very elegantly for people who might not be able to see it the patriot act inverts the constitutional requirement that people's lives be private and the work of government officials be public it instead craft a set of conditions in which our inner lives become transparent and the workings of the government become opaque either one of these outcomes would imperil democracy together they not only enter the country but also cut off the avenues of repair and that's why we need English scholars as well as lawyers because I just think that's very elegantly putting the whole idea of cutting off the avenue of repair that's what's really scary if you can't go to the courts and complain you can't testify in Congress the government doesn't have to tell you what they're doing how do you ever find out what the government is doing and see if you want it to be changed okay so is privacy dead should we stop worrying about this a lot of people will tell you what do you care about this anyway you know Amazon knows the way everything you're doing you know who cares if the government knows too do we care okay so we care okay so that I think the defending privacy we can't give up on privacy and you hear a lot of people saying that oh come on you we have no privacy anyway or why should I care what the government knows about me I think we cannot give up on privacy because if we give up on privacy we are also giving up on democracy in a very real way so the third area that I wanted to describe which is sort of the third pillar of autocracy here is xenophobia trying to get people to you know demonize each other to hate each other and kind of get everybody focused on it's them it's the Muslims that the Hispanics whatever in a way that can lead to detention deportation interrogation and just you know turning people against each other here too this is nothing that's new in the United States this is the alien act of 1798 that it's lawful for the president of the United States at any time to order all such aliens as he shall judge to be dangerous to the peace and safety of the United States to depart out of the territory that's called deported now the enemies at the time I think this is very interesting in 1798 were the French right because there was a kind of a quasi war with France so you know that was at the time but obviously this sounds familiar to us today part of these the alien acts expired and part of them did not so this is another feature that even more than the lapses on the First Amendment is really part of United States history we have done a lot of demonizing of immigrants over the years and the only other example I'm going to give you for now because it has to do with the founding of the ACLU again is around 1920 around World War I where there was tremendous xenophobia so I don't know if you've heard of the Palmer raids but this man Attorney General Mitchell Palmer had a bomb explode pretty near his home and he didn't like that not surprisingly so what he did in true Casablanca fashion was he rounded up all the usual suspects which was about 6,000 European immigrants any Italian was kind of suspected of being an anarchist because there were Italian anarchists any Russian or Eastern European was suspected of being a communist because you know there were some who were communists so it was just this enormous draughtonet there there are perfect cases against 4,500 people so at the time this is a very popular act people were being told that on May Day 1920 there was going to be a revolution by the communists and they were going to take over the government so the Washington Post at the time editorialized they said this is no time for constitutional hair splitting they said this is an emergency we have to defend ourselves against these dangerous aliens so you know I don't have to tell you you know how many thousands of people's lives were disrupted there were men waiting their deportation hearings again who had done nothing wrong you know they had been perfectly peaceful and had been here and many other people who were arrested questioned kept under terrible conditions ACLU did a report on this too and this is you know sort of a model for what we've been doing ever since it was kind of you know I think in a way the first of its kind here was what was wrong with the government's practices violates the due process clause violates the fourth amendment violates the equal protection clause and at the end I think a very again you know something that a lot of people have realized too lately not to the fact that stories are very important in the appendix there's a whole lot of individual stories of some of the people who were affected we also went to the courts and there was one very federal judge who kind of put the kibosh on some of the deportations and public opinion changed about whether or not this was something necessary to do so of course this also sounds very resonant to us today that brings us to the current muslim ban and is another great example of the no civil liberties battle ever stays one the ACLU has brought 14 different lawsuits about the muslim ban in addition to our other immigration work and you probably know the supreme court is about to hear that but you know that we did win an injunction against the implementation of that order I want to leave time for questions yeah the lawyers who did that it was amazing they found out 5 p.m. on Friday that there was this executive order by the next morning at 6 a.m. they were in court it was amazing and they literally stayed up all night so they got this great order and what I want to tell you is that what I think is encouraging and this is where I'm going to move toward the end of my formal part of my talk by giving you some encouragement because I think that what we can do is refuse to give up on the first amendment refuse to give up on privacy and refuse to give up on each other I think if we remain supportive of other people there's a lot of hope so one of the lawsuits that we brought one that's going to the supreme court was brought on behalf of the this is actually the other one a number of organizations and one of the name plaintiffs is HIAS the Hebrew Immigrant Aid Society and the CEO wrote a great blog piece on our website to say we cannot remain silent as Muslim refugees are turned away just for being Muslim just as we could not stand idly by when the U.S. turned away Jewish refugees fleeing Germany during the 1930s and 40s HIAS was started in 1881 to try to help Jewish refugees who were fleeing the pogroms of course they were also very busy during the 1930s with the Jews trying to flee Hitler's Europe and I love the fact that this organization is going to bat for Muslims saying it's the same thing that's very much the ACLU idea and injustice against one group is just as bad even if it's not my group even if it's other people's rights the Korematsu Foundation Fred Korematsu was the chief plaintiff in the lawsuit in which the ACLU was very much involved during World War II about the evacuation of Japanese Japanese Americans from their homes on the west coast that's his daughter Karen and the foundation filed also a brief with the court saying don't do it it's the same as what's happened to us I actually got an award from the Japanese American Bar Association because they wanted to make the point that they think it's the same thing and they want us to learn from our history and not subject Muslims to what their ancestors have suffered Evangelical questions have also come to bat this I think and is especially interesting brief in terms of what Eileen was talking about is what's your responsibility as a member of an organization these are businesses just you know for-profit businesses that filed this brief on behalf of all their employees who are being affected by the Muslim ban everybody from Apple to Zigma it's you know there are a whole lot of you know different or 97 organizations here so there are a number of businesses that have concluded that this is their business you what's happening in the United States and whether or not there were rights so the ACLU works in 14 different areas and during Q&A I'm happy if people want to talk about some of those other areas in addition to the three that I've been talking about but I want to close with the whole question of so what can we do about this so the ACLU as I've been telling you has been working very very very hard and we have been feeling very appreciated lately because since the election we have had over a million new members so we're now at 1.6 million members which is just a whole lot of people so it used to be when people said to us so what can I do to help other than donate to the ACLU and give you money so you can do your work and our answer was always will give us more money to do our work but we now have a much better answer and one of those answers is people power what we're doing is we're trying to do community organizing for the first time ever in our history and we have very good answers you can look this up online look at the launch in Miami Town Hall which was amazing we're now mobilizing activists all over the United States to go out there to their local governments local chief of police local city council to try to get model ordinances about how to treat immigrants how police should be treating people voting rights to try to get those things passed so I think whether it's as an individual as a member of an organization or as a business I think that and this is my title here I think that democracy is a wiki democracy does not work if everyone is just being passive and waiting for somebody else to do something about the things that are wrong you have to be a participant you have to be active the German writer Günter Grasmund said the job of the citizen is to keep his mouth open so here's to all your open mouths this is you can follow us on social media we also have an organization that we're now involved with called Inclo the international network of civil liberties organizations where we work with liberty in the UK and we have alliances about a lot of the issues we're talking about which indeed we have a lot of problems in common and a lot of work in common so the last thing that I'll say before opening the floor to whatever questions you have is that Margaret Mead the great anthropologist once said never doubt the ability of a small committed group of individuals to change the world indeed nothing else ever has thank you applause thank you it's wonderful to know you all stand with us we have two mics in the aisles Phoebe says so if you have a question if you're able to go to the aisle and if you're not able to I think tell somebody Phoebe will come to you if you're not able to get to the mic and you'd like to ask a question so I think we have our first question over here could you do us the favor of telling us who you are and where you're from hi I'm Samantha I'm from California I just had a question about the difference between free speech obviously not a difference I'm sorry the microphone is very sorry echoey is there some I'm tall there we go free speech versus providing a platform for free speech just your opinion on that I think I'm from California I live in Oakland so Berkeley is I have a lot of trouble hearing the question very close can you hear me yes an echo it's just yeah is this better I'm sorry go ahead it's okay technology what can you do I went to UC Berkeley so I just was wondering your opinion on providing a platform for free speech like paying someone to come to campus versus not providing a platform for free speech just curious of your opinion on that that makes sense yeah uh paying someone for free speech versus not paying someone paying someone for free speech versus not paying someone for free speech paying someone to come is providing a platform for them to share their opinion to provide a platform for them like relate to the UC Berkeley or relate it to UC Berkeley okay so I think there's on your first amendment law there's this concept called a public forum and so you know if you run a a business or if you have a school you don't have to invite anybody to speak who you don't want to but if you create a public forum that isn't invited for speakers to pay you know to say whatever they want and for you know members of the public to come or for student groups to be inviting people to speak then you cannot under the first amendment censor on the basis of the content so you don't have to create that public forum but once you have in fact student groups can invite whoever they want to talk okay and that's the basic idea again um the a lot of people don't understand that the first amendment doesn't apply and the reason this applies to UC Berkeley is that they're a state school and therefore they're considered governmental so the same limitations would not apply to non-governmental schools and also wouldn't apply to a business if you're a tv station and you don't want to accept a certain ad you're not covered by the first amendment there might be other laws okay so that's the basic idea I hope that answers the question okay next the other mic oh the other mic sorry yeah I'm uh Phil as Phil Brick from Connecticut you mentioned asset forfeiture case that intersected with free speech can you tell me how broadly you cover civil asset forfeiture in some cases it doesn't involve free speech asset forfeiture okay what I was mentioning let me be just be clear is that it wasn't a case it was a proposed legislation so it's not actually real yet you had something that might happen that you might end up being subject to asset forfeiture because you've been involved in a demonstration the general question of asset forfeiture is something that we are involved with because we just think it's very unfair there's not a whole lot of due process protection so if you are suspected of something even if they don't have enough evidence to convict you of a crime they can seize if the um what they suspect was something that would have been an offense that happened in your car they could seize your car if your house is involved if somebody has been using illegal drugs in your home your home could be forfeited and we think that there's just not enough process protection to that so that's an area in which we are in fact very active it's one of the criminal justice areas where we would like to see reform and one really interesting thing these days is that some of these issues turn out to be really bipartisan issues so there are a lot of people not only democrats but republicans and libertarians in particular who don't like that kind of big government that people can come and take your property away even if they don't have a whole lot of proof that you did anything wrong so we've had some very interesting alliances which is how you get things done so I co-wrote if you're interested in this I co-wrote an op-ed with John Malcolm from the Heritage Foundation and they're sort of toward the right and they come from a very libertarian point of view and what we said in our op-ed was there are things we don't agree on but we agree on this they shouldn't just be taking your property away if they don't have any good proof or reason to do it so yeah it is an area that we're concerned about so back to this side yes I'm Spencer Graves from Kansas in the metal of the U.S. and I'd like your comment on the Federal Communications Commission's current notice of proposed rule-making on restoring internet freedom and the the push back against that coordinated by BattlefortheNet.com and others this might work better I think there's an issue with the other Mike I think it's okay okay I'm Spencer Graves from Kansas center in the middle of the U.S. interested in your thoughts on the Federal Communications Commission current notice of proposed rule-making on restoring internet freedom and the push back from that being coordinated by BattlefortheNet.com and others okay restoring internet freedom the particular act you're talking about the particular regulation is not something I've been following because I often have the view from 30,000 feet so I think if you you could get a much better answer from the website than from me you just look it up on the ACLU website if it's something that would be promoting freedom on the internet and something where we'd be asking the FCC I would be pretty sure that our people in Washington have been lobbying for it but you could certainly get more precise details by just looking it up on our website they're very busy too we have people on staff who are thousands of emails behind okay to this microphone hello thank you I'm Lucas from Hamburg, Germany and I understand that you're saying protecting free speech is protecting unpopular free speech and on the Wikimedia projects we have trouble with people behaving badly and we have discussions about where to draw the line on how much we have to tolerate how much people telling you know bad things we have to tolerate do you think we should be tolerant or do you think it is okay for us to say well we are a project about an encyclopedia and this is not you know for people who don't know how to behave yeah I think that's a great question and it's really one of the hardest questions isn't it and I think that the problem is that there's no one answer I think the answer isn't be tolerant of everything and the answer isn't censor everything that you know could get somebody into trouble I think it's all about a balance and one of the first things that I'll say again is if we're not talking about the government the first amendment does not apply so you don't have to be worried about being sued under the first amendment and a lot of people just don't understand that about American law however we do think that on the internet that even if we're not talking about government control that the principles of free speech should apply and it should be a very open and vibrant marketplace of ideas so the idea that you would censor an idea that was unpopular I think is wrong where the first amendment draws the line and I think there you know the idea is kind of comparable to what should be happening on the internet is when there's some sort of danger in sight danger of incitement something that crosses the line now that's not always an easy line and you know we obviously could spend an entire session on that and I hope you're doing that someplace else in this program you know maybe another day again I would welcome you to go on the ACLU website to look on commentary that our staff has made the experts in the area on particular instances because unfortunately the best answer I can give you is there has to be a balance there are times when we're for free speech another example of where this has been very controversial is on protesters outside abortion clinics we think people should have the right to protest if they're anti-abortion and sometimes we disagree with our colleagues because we think people should have the right to speak however what they cannot do is they can't be intimidating they can't be in a young woman's face when she's trying to get to the clinic and you know there are certain kinds of actions that just go too far and again it's not easy to tell where the gray becomes black or white good morning I'm Kevin I'm user L235 I'm also an intern with the ACLU of Iowa so I was really excited to hear your talk my question is about how much advocacy the Wikimedia community should engage in because Wikimedia just like the ACLU is a non-partisan organization and its editors are not all of the same political party or political beliefs how should we and how does the ACLU manage that balance between political and issue-driven advocacy and how much issue-driven advocacy should we engage in yeah another great question yeah I'll tell you one of the in addition to all the other challenges that we've had under the Trump administration one of the greatest challenges is how to define non-partisanship and we actually wrote a report on both of the presidential candidates before the election and what we trying to do as to Donald Trump was to talk about his policies not support or oppose him as a person and the sort of mental construct was if you would just come around on these policies you know we we might you know who knows we could support but we don't support or oppose so it's been difficult to you know make sure that we're on the right side of that line and not being partisan when at this point you know as one of my colleagues said the president is a walking constitutional crisis you know if you could you're pretty much opposed almost anything he does and it would be a civil civil liberties problem we do try to remain faithful though and one thing that I think your question includes is that a lot of our new members want us to just be anti-Trump on all things and I think that there are some of our new members who would be surprised and not at all happy to know that we would be defending the speech of you we've defended the speech of Donald Trump our Ohio affiliate during the Republican convention was challenging a restriction that they had on the area in which you could demonstrate during the convention and among their five plaintiffs one was an Ohio homeless homeless group and one was citizens for Trump okay you know they also had a right to demonstrate and we really try to be neutral now I think that what we would hope to do and I think this is about the communications is we're trying to communicate our idea about how the defense of speech has to be content neutral and you know we we would represent Mr. Trump we have in some places represented him and his supporters because they also have the right to speak we're not anti-Trump we're anti some of the things he's doing to curtail civil liberties and my feeling some of you may know about the incident that the ACLU had in Skokie where we did represent the neo-Nazis who wanted to hold a parade and we lost members because of it and my answer is I think it's very important as an organization and this is some of my job as president to proudly maintain our non-partisanship and if we have to see new members leave because they can't bear the fact that we would also represent right-wing speech if we fail to communicate to them why we do that then so be it so thank you for the question do we have time for one more okay so Phoebe has green-lighted a couple more questions hi I'm Sati from California so many governments who protect free speech also have laws that prohibit hate speech so speech that discriminates in some way and so I'm wondering how do you walk that line between protecting free speech and also protecting I think one of your pillars is around racial justice criminal justice and things like that so how do you walk that line also a great question so there are two things about that one of which is that how many of you are from Europe European countries okay so I've seen in Europe there are a whole lot more laws about hate speech in France in Germany where you can't deny the Holocaust there are things you can't say and one question that I'd love to be able to have lunch with all of you and talk about is are our first amendment ideas about you know the Nazis have the right to say what they want to say are they truly international ideas or are they contingent on the American experience so our experience is the American first tremendous first amendment tradition is I understand it is that there's no idea that you aren't allowed to say because it's too hateful you get to say your ideas the Nazis are hateful that was hate speech the Ku Klux Klan is hateful and you know Millos is hateful you know they say hateful things but I think that for us to try to say well that's hateful you can't say that gets us on the slippery slope and you can't have the government censor and that again is the idea of the first amendment to have the government say to somebody you can't say that the line again is if it's not just hate speech but if there's any sort of conduct or you know action involved then it starts crossing the line so we are also on both sides of cases at schools where students are concerned about bullying we urge schools to have anti-bullying programs and to protect kids who are LGBT you're from people who are actually you know threatening them in any sort of way but if people just want to say in class we had an example where we represented a student in a class who was suspended I think for saying that because of his religion he believed that homosexuality was a sin now you know he has a right to say that and so you tell us the concept of hate speech which is a very live one in Europe is the wrong concept we do believe in supporting hate crimes if somebody is punished because they have committed an act like arson if you burn down the home of a family of a certain ethnicity that's moved into the neighborhood that's more than just arson that is a hate crime and if you've taken action that's not the same as you're saying something hateful so that's how we walk the line we walk the line by being fairly absolutist about speech unless there's some element of incitement or endangerment or something that crosses again difficult line but that's the line we walk okay we're still okay so on this side hello I'm Pax from San Francisco I just wanted to say I'm very my daughter lives in San Francisco go to SF MoMA that's the way she works oh yes I'm very grateful for your speech and your organization you've done great work but I was concerned about your reference to echo chambers when you were discussing the case of Milo Unopolis and UC Berkeley speaking as a black transgender person I don't think echo chambers and just wanting to be around people who think like we do I don't think that's what's going on here especially since November people like me have felt targeted and very threatened and I think especially at a place like UC Berkeley that is dedicated to respecting gender diversity racial diversity and providing a place of relative safety for their students I can see why the people would be really concerned about the university welcoming someone like Milo to their university not just speaking you know outside in a public square but actually providing a forum as the previous person said for them to speak so I'm just wanted your thoughts on that okay thanks yeah I completely understand your point of view and I think that a lot of the cases that we're talking about aren't even welcoming they're just you know can student group invite somebody so I'll tell you there was a really interesting survey that was done by UCLA a year or two ago where they surveyed 140,000 incoming college freshmen in the United States and they asked them their attitudes about various things including you know kind of first amendment ideas and they asked the students do you want do you think that a school should provide you with safe space with the idea should you have a place where you can go and you're not going to hear things that are going to make you you know concerned or make you feel that people are saying hateful things about you and a super majority of the students something like two-thirds said yes I do think that's the university's responsibility they should be protecting me and not subjecting me to you know hateful speech like that or something that's going to make me feel uncomfortable at the same time just about the same super majority said that they thought dissent was really important and should be protected now to me our first amendment principles is you can't draw that line it's two sides of the same coin speech that makes people uncomfortable where the Barnett girls refusing to you know pledge allegiance to the flag that made their neighbors in West Virginia terrified and uncomfortable and they thought it was treason and they hated it Charles shank you know objecting to the draft the unpopular ideas everybody has something there where you would want to say can we make an exception for that you know that shouldn't be given free speech the university should not you know allow that idea to come but if you start allowing governmental units again that's all we're talking about here is governmental units and public universities fall on that side of the line if we start allowing them to select which ideas are okay and which are not if you could control that filter you would be selecting only you know certain kind of noxious things but other people who would control the filter would do it quite differently I once had a really interesting experience I spoke at the U.S. Army War College to a whole big group of officers who had very different politics and a lieutenant colonel came up to me afterwards and he said you know before you spoke I was determined to disagree with everything you said I said but then you know you were saying this and saying that not you know I never thought of it that way if I could prevent this person from saying what they want to say might they be able to prevent me from saying what I want to say and that to me again it's I think that's a hard line and we would need a much longer conversation to really get deeper into the school's responsibility here I think the school doesn't have to welcome I think the school can in fact have educational sessions they should be encouraging talk backs and debates I've seen a number of examples where students African-American students at schools say bring on the racist I want to debate them I want to show everybody why they're wrong the whole idea is if you try to prohibit and exclude hateful speech it is likely to fester I think sunlight is the best thing and if you talk about that let me give you one more example because I just thought this was a great case there was the members of the Ku Klux Klan had a parade in New York City not that many years ago yeah but you know at that point there were like 47 of them and they were all all pretty elderly so they had their parade and what happened during the 47 of them parading was that thousands of New York City residents lined the parade route and held up signs saying what they thought are their stupid ideas and yet that's what should happen and so the classic statement this is a very ACLU-ish First Amendment statement the best antidote to bad speech is more speech okay Phoebe says that's a lot of time so thank you all for your questions I'm sorry we didn't get to the last few people if you have time out in the hall would be happy to talk thank you all very much and have a great rest of the conference