Suzanne Nossel , Trevor Timm
The Challenge of Speech
Air Date: September 24, 2016
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. Free expression and freedom of the press are the cornerstone of the American liberty to which we aspire. Unprecedented was the enumeration of these rights over two and a quarter centuries ago. From revolutions of government to revolutions of mass media and the challenges therein, to protect the dissenter, to expose corruption, and to fight repression of the quill, the keyboard, and yes, even the Snapchat. My guest today, Suzanne Nossel of the PEN American Center and Trevor Timm of the Freedom of the Press Foundation are fervently safeguarding these rights from the American college campus to foreign newsrooms.
PEN American stands at the intersection of literature and human rights to protect open expression, while the Freedom of the Press Foundation supports public interest journalism focused on exposing mismanagement, corruption, and law-breaking in government. Suzanne and Trevor, I want to welcome you here today.
NOSSEL: Happy to be here.
TIMM: Thanks for having us.
HEFFNER: Never in history has there been such a plethora of engagement and opportunity for free expression and yet we do feel limited. We feel unsafe sometimes to express ourselves and we feel like our society at large is not necessarily secure, our actual personal liberties virtually and physically. How would you say we have evolved since Justice Oliver Wendell Holmes said you can’t yell fire in a crowded theater or church? Is that still the paradigm in which we have to operate, Suzanne?
NOSSEL: I mean one of the things I think about is that the whole world has become a crowded theater. You could say something, you know, here in New York and have it be uh, heard you know, let’s say in Afghanistan and potentially trigger riots and it may be something that to you was innocent or was in jest or was satirical and it’s taken out of context, I mean I, I joke that uh, a, a tweet or a blog post can make it halfway around the world before the context gets its boots on. Uh, to, to uh, take a riff on an old quotation but, there is a boundarylessness and contextless to, -ness to expression, what’s great about it is people hear you all over the world. You know, you can get an audience, you can get followers all over the world and there’s great power and excitement in those connections but there also is grave danger of misinterpretation, sometimes something can be incendiary and we also see what I think of as an arms race between these new technologies that allow for expression and communication and then new methods of surveillance and suppression.
HEFFNER: Trevor, how would you weigh in on that in terms of that juxtaposition of opportunity for speech and then the opportunity for repressing that speech potentially because of those grave threats that we face, terrorism mainly but this impression that lawlessness is governing so much of society not just from the government’s perspective but those people who want to perpetrate harm on our brother and sister?
TIMM: Right, when you look at the internet, uh, you know, there has never been this much uh, variety of media for people to consume, yet and that gives people unprecedented freedom but as we have seen over the past few years, it also gives governments uh, potentially unprecedented control, uh, as well as large corporations. You know, the fact that there are millions and millions of news sources doesn’t uh, equate when we look at how people consume news, which is often only through one or two or three websites when we look at the vast majority of the population. For example there was a recent study that just showed that 40 percent of uh, American adults consume their news only through Facebook. Uh, and so you know, when we see the amazing amount of news sources that we have now, we have to look at, look at it through the prism of that there is still uh, a very small number of gatekeepers, uh, who control what we see, uh, and when we can see it. Um, in the US that is uh, much more likely to be a corporation, uh, in other countries it’s much more likely to be a government who is censoring one side or another.
HEFFNER: Trevor, chair of your board, the Freedom of the Press Foundation, is Edward Snowden. You both have interacted with him. He is a central figure at that intersection of surveillance and free expression. To a lot of Americans who are seeing the increase in violence last year was that string of beheadings, this year, of course, the incidents in France, here domestically in Florida and California, the idea that should be off the table according to those who are purists, if you will, is that um, we should not secretly surveil uh, because it’s against the Constitution, what we talked about from the outset. But when you see the horrors that have unfolded and the political explo—exploitation of those events, how do you make sense of what is within the boundaries of free speech today and is it not acceptable to believe that the government ought to or may have a secret program to ensure our safety?
TIMM: Well I think a couple things. Uh, number one, if you ask Edward Snowden, he uh, has never argued, uh, or will never argue that the government shouldn’t conduct, uh, lawful surveillance, uh, in certain situations including terrorism.
HEFFNER: In secrecy, too?
TIMM: In, in certain situations, uh, for certain amounts of time, certainly. But what Edward Snowden revealed and what I think a lot of Americans had a big problem with was the suspicionless mass surveillance, not the targeted surveillance on individuals with court oversight, and that is the huge difference here. What Edward Snowden revealed, uh, for example was that the NSA was collecting every single American’s phone calls, uh, no matter whether they were innocent or suspected of a crime, or guilty. And that runs right into uh, the principals that were laid down in the Fourth Amendment in the Constitution that uh, the government should be forced, uh, to go to a judge and to uh, what is known as particularize uh, suspicion, uh, that they should have to present evidence, um, to conduct surveillance on specific people rather than entire populations. Uh, and that’s where we see um, people so upset and that’s what Edward Snowden has really gotten at. It’s not that uh, he’s against surveillance, um, against suspected terrorists, it’s that he’s against, uh, this blanket surveillance on everybody.
HEFFNER: And Suzanne, how do you think in your work on college campuses, young people are responding to Snowden as an example of someone who was a whistleblower?
NOSSEL: Well, it’s interesting because on the one hand among young people we see what I think of as this great surrender of privacy, I mean people put so much on their Facebook pages, uh, the Twitter feeds, Instagram, uh, personal photos, personal information, uh, is just put out there for anyone to see and there is kind of a different level and understanding of privacy among the next generation because they’ve had access to these tools all along. I think though what a lot of people misunderstand about Snowden is you know, they think and even some of our political leaders have said, you know, he should have come back and uh, asserted his defense as a whistleblower in court and, and made the argument that this was done in the public interest, uh, to provoke policy reform, to expose something that went well beyond what the Congress, uh, and the American people knew was happening. And the reality is we did a study on this, he couldn’t have done that. He was precluded. He is precluded from bringing a whistleblower defense in a US court so that kind of notion that let’s have a judge hear this out is really impossible under our current law. At PEN, we did a series of studies looking at the impact of Dragnet surveillance, suspicion-less surveillance on creativity, we surveyed writers here in the US and around the world and found upwards of 25 percent of writers saying they were self-censoring in some way because of the knowledge that their communications, uh, their emails, their, their phone logs, their metadata was being swept up in NSA servers, that this was inhibiting who, what topics they researched, who they wanted to communicate with, what they would write about, so it, there is that evidence that this really does encroach on a zone privacy and can affect creativity and some of the other freedoms that we really treasure.
TIMM: I think that contrary to a lot of conventional wisdom that uh, younger people often have a much higher awareness of privacy online, um, than older generations do. Uh, you know, there’s a study that came out last year that showed, you know, just uh, when we’re talking about Facebook privacy settings, the younger you are, the much more, the more aware you are of them. Uh, when you look at polls about Edward Snowden, you see that uh, the younger generation uh, is much more likely to consider him a whistleblower and uh, is for a pardon uh, than older generations are. Um, that’s because you know, they’ve kind of grown up with this technology and they can make decisions for themselves about what they want to be public and what they want to be private. You know, when we talk about Facebook we often think about uh, you know, people posting on their, their timelines and, and posting pictures for everyone to see but there is a huge amount of communication that happens on social networks that people purposely uh, conduct in private settings, uh, you know, with, with Facebook’s Messenger or on WhatsApp or on Snapchat where uh, the hugely popular uh, app that actually sh—has messages disappear after people have seen them. Um, so you know, when we think about uh, young people I think it’s a uh, much more nuanced uh, view for them than I think a lot of people give them credit for. And um, I think when you look at the studies that are done of how they interact with people online, that, that kind of, you de—you see that bearing out.
HEFFNER: I think there’s a fear of the Snowden phenomenon insofar as it’s sort of leading us towards civil disobedience turning into an anarchy, right? And that is a, a fear I think that is flamed rather than extinguished because of the failure of Facebook, Google, and some of these hugely important companies that have a stake in this debate around freedom of expression. Instead of writing a letter criticizing the front-running Republican candidate, or in addition to doing that, there, there is some opportunity to import a value system so that they are a responsible owner of this new landscape just as much as the whistleblower.
Trevor, what do you think needs to be the consciousness that is exhibited by the, by the Facebooks and the social media of the world? And I relay this story to previous guests that we had invited Google News Lab to join us for a conversation on data journalism and as soon as the word democracy was articulated as part of the subject, there was a fear. There’s a fear of democracy being hijacked in some way by ideologues on the left or right and the user bases of these entities being alienated. How do you think that affects freedom of, of expression today?
TIMM: Well I think when we look at the Snowden disclosures, uh, this was a classic example of, of why the First Amendment exists, uh, that you know, in the US, newspapers like the Guardian and the Washington Post and the New York Times were free to publish uh, what was classified information, uh, that was in the public interest and the public had no idea uh, what was happening behind closed doors. Uh, and it’s actually has strengthened our democracy I think, in many ways, you know, when we talk about um, Congress passing, uh, Intelligence Reform in the wake of the Snowden disclosures, when we talk about uh, the first time that the NSA surveillance programs came up, uh, in a, in a federal court after the Snowden disclosures, uh, they were ruled unconstitutional. Um, and you know, even when we’re looking at companies like Facebook and Google, you know, what Snowden revealed was that these companies were actually uh, partners with the NSA in some of these surveillance programs. But once that information became public, uh, we’ve seen a lot more pushback from tech companies, uh, defending users’ privacy rights, uh, pushing back on over-broad legal orders, encrypting a lot of their communications, uh, so that the NSA can’t uh, secretly hack into data links overseas. Um, so you know, when we, when we talk about um, kind of leaks being um, dangerous, uh, for society they’re actually, they’re actually strengthening, um, our democracy and uh, how we see what our government does.
HEFFNER: What I think becomes increasingly obvious to whether it’s the millennial or any news consumer and citizen is that there is an intimate exposure that can be malicious but it also can be quite virtuous, noble in materializing on Facebook when you have incidents of police brutality being broadcast in real time on a Vine or a Snapchat and yes, Facebook. Young people view their expression now through probably a multilayered dimension, right? Do they see Facebook now as not a journal, a personal journal as much as sort of a, a global network which it has become in which they are part of this story of our democracy?
NOSSEL: I think they’re different uses and there are people that use it in different ways and they use different facets of the platform in different ways. They can use it for private communications but also, you know, as a means of publication, I mean we an organization, PEN America, of writers, uh, with writers as members, uh, we’ve been around for almost 100 years. You know, today it really raises the question of what is a writer? I mean if somebody is uh, you know, used to be well what about bloggers, now it’s pretty obvious they’re writers but what about somebody whose main outlet is Facebook? I mean what we do find increasingly is that around the world in repressive societies, those people are the most vulnerable because they publish instantaneously, uh, you know, they may publish a video of some action by a government official or a piece of satire and it goes viral, uh, it gets into the hands of the police or the authorities and you know, they get rounded up and brought up on charges. We, over 50 percent of the writers on our current case lists are in trouble because of some form of digital communication and in some cases you know, it’s intentional and it’s kind of a, something that they probably thought of as a publication, in other cases, you know, they may have sent it to somebody and that somebody put it on YouTube, uh, without their knowledge, you know, not necessarily maliciously but it sort of wandered into other hands and exposed them to vulnerability and I think you know, we’re, we’re still really in catch-up mode in terms of alerting people to the risks of social media, uh, to the kind of consciousness that you need to have when you do publish something. It used to be such a deliberate and elaborate process to get to publication with many steps and phases and editors and you know, now it’s instantaneous and it’s, it’s wonderful, you know, the immediacy and the power of that but it also can be dangerous.
HEFFNER: What about the safety zones that are being set up on college campuses or at least First Amendment free expression advocates, in particular conservatives who are critical of the way, and we’ve had Michael Roth here of Wesleyan University and Mitch Daniels of Purdue University who are on opposite ends of the political spectrum but they both believe that these safety zones in some respect are problematic as much as they are trying to foster a pluralistic, inclusive conversation?
NOSSEL: I think we have to be nuanced about how we talk about this. I mean the idea of a safe space, a place where you can be with other like-minded people for a discussion and dialogue, you know, that idea is as old as the Bill of Rights, it’s freedom of association. You know, if I want to have a group of people that loves miniatures and you know, uh, is gonna sit around together and talk about that, there’s nothing wrong with that, or that are ardent feminists or that you know, are uh, supporters of a political candidate and we want to meet and have a discussion and it, you know, the purpose of it is for like-minded people to get together. There’s nothing wrong with that. I think where you get into trouble is when these spaces are, one they’re kind of created and enforced by an institution, so it’s not a group of people coming together and saying this is what we want to do, who we want to be with and what we want to talk about but it’s an institution enforcing the idea that certain perspectives are allowed and other perspectives are out of bounds. I think that’s not the role of univer—the university and I certainly think the entire university or an entire residential college, if we start considering that in its entirety a safe space for certain points of view or perspectives, there’s a real risk to free expression. I think those bigger environments, you know, the openness of them, the exchange of ideas, the opportunity to meet up with and debate with people who disagree with you is essential to the college experience, so I don’t think it’s a simple either-or but I think we have uh, gotten rather vague and nebulous in our definitions and that’s where the confusion and the conflict comes in.
HEFFNER: Trevor, how would you specify in your judgment from the foundation’s perspective, hate speech that shouldn’t be tolerated in the defense of civil liberties?
TIMM: Well you know, I think when we talk about hate speech, we have to remember, uh, that hate speech is actually protected by the Constitution, even when it’s deplorable and abhorrent.
HEFFNER: But not when it incites violence?
TIMM: Well there are very specific rules when we’re talking about inciting violence and the Supreme Court, you know, we, we, you mentioned uh, fire in a crowded theater earlier.
TIMM: Um, this is a classic quote that I think is often overused and misused in contexts when we’re talking about um, freedom of expression, because it was actually uh, a Supreme Court case, um, in the early 1900s where Oliver Wendell Holmes used that phrase and what uh, they were outlawing in that specific situation was a non-violent protestor um, a socialist who was uh, protesting uh, World War One. Um, he was suggesting people uh, shouldn’t go fight in war. And they actually threw him in jail. And so what they were saying was uh, just like you can’t falsely shout fire, uh, in a crowded theater, uh, you can’t uh, you can’t issue mild protests of government. And so that case has actually been overthrown, uh, for a long time and it actually, the, the, the case that essentially overturned it was uh, talking about incitement. And there are very, very specific rules when we talk about incitement, at least in the US, you know, a lot of coun—other countries have uh, much broader rules. Um, but uh, to be considered incitement, uh, it has to um, be an imminent threat, uh, of violence. It has to happen immediately thereafter and the incitement has to be very, very specific. Um, and uh, short of that uh, there is a lot of speech that a lot of people would consider offensive, uh, and uh, but yet is, is still protected by our Constitution. Um, but then when we start talking about uh, online spaces and the fact that they are owned by large corporations like Facebook, they’re not necessarily, uh, they don’t necessarily have to uphold the strict, uh, First Amendment law that the government does. Facebook is itself a private company and has their own First Amendment rights, and they can actually make rules that are much stricter, um, and enforce their own norms. Um, and that does create a new set of problems but they are certainly different.
HEFFNER: Granted, that was an outdated overturned decision, but that language has become ingrained in not just the jurisprudential lexicon but the real-life experience of the American population because we think that words that trigger massacre by machete or other means are problematic in some way, if not illegal. What do you think ought to be “off the table” on college campuses, um, are these incidents and you can use whatever examples you want but are the incidents in Missouri at Princeton, Yale, they all seem to be different but is there any collective wisdom we can, we can take from them in what is, what is hate that cannot be justified?
NOSSEL: Sure, I mean I think we have to put this all in perspective and recognize, you know, there are lots of different students with lots of different motivations but in many cases, you know, this is really about advancing the drive for inclusion and equality, uh, and integration to the next level. And there are people, you know, my generation, older, for whom you know, the idea that certain words are out of bounds suddenly, you know, seems like an affront, uh, it seems like overreach you know, but that’s, we’ve al—those goalposts have always shifted. We’ve always evolved our language to be more inclusive, there have always been terms that you know, were uh, fine for common usage in one period then it’s, you know, over time become viewed as offensive so you know, that evolution uh, is I think ultimately a positive thing, it does have the potential to reach too far and to become uh, too uh, quick to reject alternative viewpoints, uh, you know, to overreach in terms of protecting students from ideas that are threatening or challenging and I think we have to be careful about that, you know, uh, we’ve noted here in this conversation that our uh, rules on what speech can be, uh, illegal, considered to be illegal in this country are very narrow and the United States has the most speech-protective standard in the world because of those narrow definitions and I think that’s something to hold on to, uh, but also to recognize that you know, speech can be harmful in a variety of different ways, you know, the answer very often is not banning it but it’s also not doing nothing, you know, it’s taking an extra step to foster dialogue about what is offensive, how speech makes people feel, you know, what an appropriate response is, you know, what the role of different actors in the debate may be, so it’s not a question of banning and it’s not a question of turning your back, it’s a question of kind of using these discussions whether it’s at Yale or Princeton to kind of push through to a new level hopefully of inclusivity on campus.
HEFFNER: And Trevor finally, when we think of the future of freedom of expression and freedom of the press for our democracy, um, what kind of reconciliation do you think might lead us to finding some consensus in the aftermath of the Snowden revelation? Because ultimately that’s what forges a democracy, the idea that we have this founding document and we want to interpret it in a way that is consistent with the believers in Edward Snowden as a whistleblower but also the believers of him in some respect as a traitor, and those have to be reconciled in order to have a functioning democracy, don’t they?
TIMM: Absolutely, and I think when we talk about having a fun—functioning democracy, um, the overarching lesson from the Snowden disclosures is that the American people have to understand what its govern—what its government is doing, uh, behind closed doors that potentially could affect everybody. Uh, you know, when we talk about the NSA mass surveillance program which was collecting all of the phone calls, uh, the American people had no idea that this was happening. You know, they didn’t uh, elect uh, a member of Congress to vote this into law. Uh, the, the law that they were using was completely reinterpreted to mean something that was the opposite of what it said. And you know, much more about uh, surveillance um, the Snowden disclosures I think have taught a lot of people about government transparency and being up-front with the American people. And letting the American people decide what they want. If they ultimately want more surveillance, then that is their choice. Um, and, and Edward Snowden has actually said this many times. All he wants to do is provide the American public, um, a way to make that choice and not have that choice be made for them in complete secrecy.
HEFFNER: A transparent vehicle through which that can be achieved.
HEFFNER: Trevor, Suzanne, thank you for being on The Open Mind today.
TIMM: Thank you very much.
NOSSEL: Thank you.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/openmind to view this program online or to access over 1,500 other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.