AS251: Andrew Torrez on Hate Speech

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:29 Thomas: Hello and welcome to atheistically speaking. This is episode 251 and I'm your host Thomas Smith. All right, we are back as promised with everyone's favorite legal contributor Legal correspondent Andrew Torrez always an absolute blast to talk to and this was no exception So that said let's get right over to that interview Back on the show for the third time, I think, right?

0:01:01 Andrew: Yeah, that's right.

0:01:02 Thomas: Andrew Torrez, how you doing?

0:01:04 Andrew: I'm great, Thomas. How are you?

0:01:06 Thomas: I'm doing great. We're both just in such high spirits after 20 minutes of fooling around with technical stuff. But that's, hey, that's the nature of the game, that what podcast could ever happen without 20 minutes of technical stuff? It's amazing. Well, we left people off last time on a big cliffhanger about about Scalia and the Second Amendment, and so we're not going to talk about that today.

0:01:22 Andrew: Exactly.

0:01:36 Thomas: Sorry for the fake out. I guess we'll put that off for now. What we're going to talk about today, at the encouragement of Eli Bosnick and others actually, was your opinion on the EU hate speech rules that recently were, I guess Facebook and other social media recently were sort of almost demanded by the EU that they comply with these rules. Do you want to try to set it up more, or did you want me to set up the groundwork and then go from there?

0:02:11 Andrew: Sure, I think I can set it up. And let me say in terms of the cliffhanger that Scalia on the Second Amendment is absolutely nuts. And so if you have an opinion on gun control, whenever we do part four, you're definitely going to want to tune in for that because because it's

0:02:28 Thomas: Oh, even more hard sell on the, oh, you're killing people, but good. So you've guaranteed your fourth appearance. Well, we'll have to, we will negotiate terms later. Darn it. You've twisted my, no, I'm just kidding. Okay.

0:02:30 Andrew: Absolutely crazy. So, yeah, so you and Eli had reached out to me with respect to the hashtag I stand with hate speech that was trending last week. And so I thought I would come on and talk about free speech law generally. Let me give my sort of standard disclaimer again, and let me give you sort of a two-part disclaimer here. Number one, although I'm a lawyer, anything I say in this conversation is not intended to be legal advice. And number two, I'm a U.S. lawyer. I'm admitted to practice in Maryland and the District of Columbia, and I've been admitted pro hoc in another 20 states and a half dozen appellate courts. So I practice all over the country. I feel pretty confident with my understanding of U.S. speech law. I'm not a European lawyer. So, I mean, I think we're going to talk about the sort of high level principles here. But, you know, just...

0:03:44 Thomas: You know, and it occurs to me, actually, if you don't mind, sorry to cut in. I think I would prefer to just give a very quick statement on, on what I said, because I think if I do that and then let you get more into it, that'll be better than if I let you go into the detail and then I turn around and say, oh, well, here was my uninformed opinion before hearing what you said. So I think it'll work better to do it the other way, as I think of it. So sorry for that. Let me just to give a quick summary of what our interaction was, mine and Eli's that was. I saw that this hashtag, I'm with hate speech, was trending. I didn't know what it was about. I had no idea. But I saw I saw it was trending and I was like, well, that doesn't sound good, whatever that is. But then independent of that, a listener had sent me some articles about this, these new new EU rules that would require a code of conduct for Facebook, Twitter, YouTube to remove hateful online content within 24 hours.

0:03:47 Andrew: Yeah.

0:04:44 Thomas: And furthermore, what I saw was that it would require hate speech, not just based on, you know, race, ethnicity, stuff like that, but also the little word in there, religion. And I just worried, this was my, again, it could be misinformed, I don't know, but my My tweet that I think pissed Eli off, though, I don't think it should have, was I even said this is a bad hashtag. I don't like the hashtag I am with hate speech personally because it's unnecessarily divisive. I think you're going to turn too many people off. So that's my opinion. I said I don't like that hashtag. However, reason, I think, to be concerned with the government enforcing, you know, again, it's the EU in this case. But similar, we can talk about hypothetically with the U.S. government too, enforcing rules like this, because who decides what's hateful toward religion? I mean, is scathing atheists all of a sudden going to be hateful to religion? I don't know.

I mean maybe, so that's why I wanted to say that first, because maybe with more detail you'll illuminate that for us. So that's what I said. I think Eli was a little pissed that, I don't know, that I didn't hate more on the hashtag, I guess, but that's a separate discussion. So, with that said, that was kind of my stance on it, and then I'll let you take it away.

0:06:00 Andrew: And Eli is, I think his usual course of conduct is cranked up to 10 on a regular basis. And I don't think he'll be offended by my saying that about him. He's passionate about what he believes in. So, yeah, if you're following along, if you Google European Commission Code of Conduct or Code of Conduct on Illegal Online Hate Speech, you'll get the 13 point agreement. So I think, I mean, it probably makes sense to sort of start off by talking about what the EU did and then, you know, sort of move into the philosophical considerations. And so So this agreement was executed on May 31st, so last week, and probably not by the time this airs, but on May 30th.

0:06:56 Andrew: And it was four different online providers, Facebook, Twitter, YouTube, and Microsoft. And essentially what the agreement is, it has a whole bunch of kind of introductory introductory recitals. And then there are 13 bullet points that express what the companies and the EU member nations promise to do, and this is the words of the first bullet, "counter the spread of illegal hate speech online." So I think that the first thing to point out is, is that this agreement is really intended to apply to speech that counts as hate speech under existing EU law.

0:07:47 Andrew: And I'm going to speak to what that is. That's very, very different. Well, maybe that's too many varies. It's at least very different than what counts as hate speech under US law. And the one thing that I haven't been able to find out at all is whether the agreement, which has, and I think the controversial provisions basically say that people can report hate speech and that these, what they're referred to as the IT companies in the agreement. But that Facebook, Twitter, YouTube, they need to respond within 24 hours to a complaint and remove or disable access to the content that's been flagged. What I don't know, and I looked around, you pretty significantly to try and figure this out, is you've probably seen, for example, on YouTube, certain content can be flagged on a country by country basis, right?

0:08:00 Thomas: Right. So,

0:08:49 Andrew: You'll pull up a video and it will say, so-and-so has blocked access in your country on copyright grounds or something like that. And again, that's because laws are not the same across the world. And so the first question that I would really want to know is, are these providers, particularly Microsoft, are they intending to block access for all users on their platform? Are they only going to block the access in EU nations? And I don't have a good answer to that. I mean, a lot of the articles that have been written, and I really don't recommend going onto Twitter and searching the hashtag I stand with hate speech, because that just brings out the worst in humanity.

0:09:36 Andrew: But I mean, everyone sort of seems to be assuming that they are blocking content based on these standards. And if so, for reasons that we'll get into, I mean, I think there is a reason to have some concern about that. But I don't know that that's the case.

And the second thing is, in the week since this policy was enacted, since these 13 points were agreed to by and between the companies and the EU, I can only find one case of anyone having any material removed, and that was removed for 24 hours and then put back up again. Right?

So, sort of like, again, if you want to use the YouTube analogy, um, you know, when something gets flagged for content, it gets removed, and then, um, you know, oftentimes after a, uh, complaint, you know, a counter complaint and an explanation period, it'll get put back up, and and that was a case, there was a, um, a person named Ingrid Carlqvist, that uses the, uh, the V, um, with a, uh, a far-right outfit that was called Gatestone, and this person had posted a video on their author page that said that was entitled Sweden's migrant rape epidemic pandemic, um, and I, I would defend the speech as, you know, in the same way that I would defend, you know, Donald Trump's rights to say that, you know, all Mexicans are rapists coming across the border and that's why we have to build a big wall.

Uh, nevertheless, I mean, it was, it inflammatory, it video, and it was taken down, but then put back up within 24 hours. So for who are worried that, I mean, I saw Orwellian tossed around, and this is just going to be used to censor everybody.

0:11:21 Andrew: I mean, I literally could find only one complaint under this policy, and that one complaint was redressed within 24 hours. But now, again, that's not to suggest that it's not worth taking a look at the policy and seeing if it makes sense. But certainly, you know, the first seven days of it being in action have not produced the kind of censorship that I think a lot of people were afraid of.

0:11:50 Thomas: I'm trying to think through myself if it would, don't know how convinced, how convinced are you, I guess, that you'd be able to find within a week, you know, like a reasonable number of times that things were blocked? I mean, could someone have just been disabled and then we wouldn't be able to find out about it necessarily? Or do you think that they would have made enough noise that we would, you we would be able, you or I Googling it, would be ableto find their complaint? I don't know. I wasn't sure how to phrase that question, but you know what I mean?

0:12:21 Andrew: Yeah, no, It's a good question. Let me answer it in two ways. I mean, the first is certainly it would be, it would not be typical for these companies to both remove content and then remove subsequent content complaining about the removal. Right. Like, in other words, if I post something that Facebook considers hate speech, and then they take it down, and then I make a post that says, "Gosh, I'm really annoyed with Facebook," probably I would use stronger language, but because they

0:12:55 Thomas: You use hate speech against Facebook.

0:12:56 Andrew: Yeah, Because, because they just pulled down my post and they said it was hate speech, right? Like That

0:13:02 Thomas: Well, I will counter that with, I mean are we talking, so well, this is maybe a good question that I should also ask. Ask, is it your understanding that it's just the post that will be taken down? Because you'll recall recently several atheist pages were taken down. They tend to, in my experience with Twitter and with Facebook, which is what I have the most experience with, and actually now that I think about it, I can even think of YouTube examples. They take down the entire channel. Now this is, of course, not necessarily the same as this EU, you know, commission or agreement because I'm talking about, you know, in the U.S., what the companies have done. But I can think of an example for all three of those platforms recently where, Without explanation, accept to say that you violated some sort of, or we've received complaints, your channel's been suspended.

0:13:03 Andrew: Yeah,

0:13:55 Thomas: I can Think of an example for all of that. So is it your understanding that for these accords, as it were, it's just going to be the post that's problematic, or will they disable the account?

0:14:06 Andrew: Let me answer that in two ways, so first,

0:14:09 Thomas: We're up to four ways.

0:14:10 Andrew: Right, I know it's, it's not clear that that it would just be the post. What, what the, this is bullet number, number two of the policy says that the companies will have in place rules or community guidelines clarifying that they prohibit the promotion of incitement to violence and hateful content. And then it says they'll have in case clear and effective processes to review notifications regarding illegal hate speech on their services, so that they can remove or disable access to such content. So the first part of that is certainly, taking down an entire channel or banning a user seems, seems consistent. But to go back to the second part of the answer, to go back to what I was saying previously, those cases that you and I have seen where entire YouTube channels have gone down or entire users have been banned from Twitter, it's pretty easy to start a new YouTube channel or to start a new Twitter account and say, hey, my Twitter account, PA Torres Law, was taken down so that's why I'm posting from PA TorresLaw1, right?

0:15:13 Thomas: Sure.

0:15:13 Andrew: So again, I'm not suggesting that makes the policy appropriate. I'm just saying that I think there are ways to disseminate the information. And in the same way that we know when a YouTube channel tends to be taken down, because the person behind it will take out a second YouTube channel and say, and put out a video that says, I can't believe you see this with strikes a lot too, right, like they'll say, I Can't believe like x video got a strike, or x X video was removed on copyright grounds or X channel was shut down. And the reason is because that sentence reporting on the restriction does not itself violate the policy. So you're right to say that all of the information may not be there. But given our previous use and history with these platforms, I'd be surprised if there wasn't. I mean, could you imagine if you had an, I mean you can look up the, the gate stone and if you Google this, uh, Sweden's migrant rape epidemic, please turn your safe search on, but, um, you'll find, you know, a dozen articles about it.

0:15:22 Thomas: Okay.

0:16:21 Andrew: So I would think if somebody else, you know, had their page taken down, uh. That we would know about it, but go back and to go back to the second answer, the The second answer of the first part of the answer, know sort of by contrast, know Google, when they revised their harassment policy, they just put out a study from 2014 to 2016, and over that time period, they got, I think it was a million, I don't have the exact numbers, it was on the order of a million and a a half complaints, and they responded by, you know, deleting links in 42% of the cases. So just in terms of kind of the magnitude, you divide a million and a half by 104 weeks, and that's still a pretty big number.

0:16:28 Thomas: Fair enough. Yeah.

0:17:15 Andrew: So I would think if this were being used used as frequently as the Google policy, for example, then, you know, we should have 10,000 examples by now, uh, and we don't. So, and again, that's all super preliminary, right? I mean, it doesn't, and it doesn't address the philosophical, uh, issues, which, you know, are certainly worth talking about, but I, but I, I always think, you know, as a, as a lawyer, like, you know, let's talk about practically, you know, what are we talking about here? Are we talked about one page being taken taken down? Or, you know, or are we talking about 10,000? And so far, as I can tell, we're talking about about one.

0:17:27 Thomas: Okay, yeah.

0:17:57 Thomas: Right, and then it would be, I guess, up for debate whether, you know, it could also be about potential for abuse, would be another way to to look at it. I'm not, you know, I'm not arguing either way. I am just saying one could still make the argument, yeah, sure, it might be fine for a week, you know. But there's a potential there, under the right set of circumstances, something could get taken down when it really shouldn't be, or when it's an important political statement that, you know, the government doesn't agree with, or something. So I guess that would, that should come down more to when we talk about the philosophy of it, I suppose.

0:18:32 Andrew: Yeah, absolutely. And I mean, if we want to sort of move to that, I would I would point out that this policy, I mean that to me, the biggest misunderstanding that I saw, as I went to delve into the issue here, is that this This policy statement and this agreement does not define hate speech, and it does not purport to give anybody new rights to define hate speech. What it says is that the EU definition of hate speech that these companies are going to cooperate with the European Union to to counter the spread of hate speech that is currently illegal under EU policies and guidelines online, right?

0:18:36 Thomas: Sure. Right.

0:19:19 Andrew: So, in other words, contemporary, right now, that's a loophole, and they want to fix that. And here, I mean, I think there is a legitimate issue. So let me sort of talk about the daylight between what counts as hate speech in the EU versus what counts is hate speech speech in the US. I will say, I mean, with all candor, I mean, this is where I would fall more on on your side of the line, like the US system, right? I come, you know, I live here, I practice here.

It is more the US definition of hate speech permits far more speech than is permitted in in Europe and in many European Union countries. And I think that's right, that's that's the balance that I would want to strike. But so so here we go, um, the policy references EU Framework Decision 2008/913/JHA, and that decision says it is punishable as a criminal offense to, and then there are three things, number one, engage in a public incitement to violence or hatred directed against a group of persons or a member of such a group of persons defined on the basis of race, color, descent, religion, or belief, or national or ethnic origin.

0:19:46 Thomas: Right.

0:20:40 Andrew: Number two, the above-mentioned offense when carried out by the public dissemination or distribution of tracks, pictures, or other material. And number three, and this I think is the biggest distinction, publicly condoning, denying, or grossly trivializing crimes of genocide, crimes against humanity, and war crimes, dot dot dot, when the conduct is carried out in such a manner that is likely to incite violence or hatred against such a group or a member of such a groups. And those second and third points, I think, really is where European hate speech laws deviate from US hate speech speech laws. And I would point out that in at least 11 countries, they're not all European countries, because one of them is Israel.

0:21:27 Andrew: But in at last 11 countries that I know of, it is illegal to disseminate speech that denies the history of the Holocaust, right? So Austria, Belgium, Czech Republic, France, Germany, Hungary, Israel, Lithuania, Luxembourg, Poland, and Romania. And, again, right, that's absolutely antithetical to, um, what I consider to be free speech in this country, right? Like, I mean, Holocaust denial is crazy, um, gosh, maybe I shouldn't have said it that way.

0:22:01 Thomas: Oh, a little reference to previous episodes. Yeah, no, well, I totally agree. I think it should be perfectly legal to deny the Holocaust. And you might recall, or listeners might recall Christopher Hitchens thought the same thing and defended someone who was not like a friend of his or anything, someone who he otherwise disagreed with, and of course disagreed with on this issue, but defended that person. I don't remember the person's name, but was imprisoned for Holocaust denial. And Hitch thought that that was just ridiculous. And I tend to agree. But of course, we're two Americans talking about it. I do have a lot of European listeners. I'll be curious to hear their points of view. I, I do know that they've chimed in a few times before when I've talked about free speech and have said, oh, just to let you know, you know things are a a little different over here. And so I've gotten into it a little bit, but, but yeah, I tend to fall in the same camp as you on, as regards to Holocaust denial.

0:22:02 Andrew: But yeah Right. Yes yeah yeah And and the Supreme Court, um, the 1977 case, uh, that is the Nazis versus Skokie, um, and and what happened in that case, um, if you have, you ever seen the movie The Blues, yeah, it is. The full title is National Socialist Party of America versus Village of Skokie. But in

0:23:17 Thomas: Is it really, was the case really the Nazis versus, but I was going to laugh about how there's, there's something called Nazis versus and then I might end up rooting for the Nazis. I think that's, that's a, That's got to be a first.

0:23:30 Andrew: Sure no portion of this podcast is ever recorded and taken out of context because of what you just said. But yeah, so the Skokie case, I mean, first, just as background, Skokie, Illinois is a community that is a predominantly Jewish community. I mean the overwhelming percentage of the residents in that community are Jewish. And at the time, this pleadings in the case itself, at the the time, one in six people living in Skokie, Illinois, was a Holocaust survivor or a relative of a Holocaust survivor. Okay, so could imagine, I think, really, no worse place on earth for the Nazis to march and, you know, march down the street.

0:23:48 Thomas: Yeah.

0:24:36 Andrew: And yet, I mean, this was not, It was a 6-3 decision. It was not a particularly close decision. Intriguingly enough, if you think about sort of how the I stand with hate speech has been portrayed as, oh, it's the liberals who are on the side of controlling hate speech. It was actually the more conservative members of the court 40 years ago who dissented, who were in favor of restricting the right of the Nazis to march through Skokie.

But eventually, I mean, our Supreme Court said, yeah, you know what? If the First Amendment means anything, it means that Nazis get to march down the street of a community of Holocaust survivors. Survivors and I think I mean to me it's it's part of the reason I mean anybody who goes to law school and takes a First Amendment class will learn about the Skokie case, uh, and it really illustrates sort of how far, um, our cases go, uh, to protect, uh, your right to express an opinion, um, even if, uh, the, uh, you know, however hateful that that may be to the audience. And, and so that would not fly in the European Union, I don't think. It seems pretty clearly to me to run afoul of that definition. And I think that it's worth protecting. You had mentioned Hitch, and thought he delivered a really memorable line. Have you ever heard the sort of bromide about, you know, free speech does not cover shouting fire in

0:26:05 Andrew: A crowded movie theater?

0:26:05 Thomas: Right, right. I love that talk that he gave. It's referenced a lot. Feel free to go into it.

0:26:08 Andrew: Yeah. And so you, yeah. Well, you've, I mean, you've seen it, right? He opened up a debate and he shouted fire, yeah.

0:26:14 Thomas: Yeah, I just... Oh, no, it wasn't a debate. It was just him addressing, I think, a group about it. Or Fire!

0:26:22 Andrew: Right, and then he said, look, you've, all, you've been a part of it, and, um, you can see sort of how uh empty-headed this rhetoric is. And what most people don't realize is that that, uh, fire in a crowded movie theater, um, does not come from a case in which someone actually shouted fire in a crowded movie theater. It comes from a 1919 case that has since been mostly overruled. It was called Schenck v. U.S., in which socialists were distributing pro-socialist literature during World War I. The court said, look, this is really the equivalent of boarding people up in a theater and shouting fire and watching them get trampled to death, and it doesn't count as speech because, uh, you know, it's just designed to, um, cause imminent harm, um, right. And, and obviously, I mean, I, I think it's pretty clear that, uh, that that case was, was wrongly decided, uh, and that using, you know, the, the rhetoric survives. But

0:26:39 Thomas: Right. Yeah. Yeah, how funny

0:27:21 Andrew: Yeah, yeah,

0:27:22 Thomas: Is that? That the, I, I love that about Hitch. I mean, I hadn't heard, uh, it's sort of like the stupid using 10% of your brain myth, you know? It's like, why did it take so long for somebody to point out, like, no, this is, this is absolute nonsense. Uh, and when was that case overturned, I wonder? Or, I mean maybe it's not as simple as that, legally speaking, but, oh, okay.

0:27:46 Andrew: No, it actually is. It was, it was effectively overturned, it was just disapproved 50 years later in a case called Brandenburg versus Ohio, which, yeah.

0:27:58 Thomas: Okay, Okay, so that doesn't excuse, because I'm just imagining the elementary school teacher that I had that used that, you know, that perpetuated that myth of the can't yell fire in a crowded theater. I'm thinking back to that guy. I was hoping to maybe excuse him, like, oh, maybe it wasn't overturned until after that, but no. Turns out he had no excuse to perpetuate that myth, given that it had been overturned in what? So that means 1969 or whatever? Is that what it was?

0:28:02 Andrew: Right.

0:28:28 Andrew: Yeah, 1969. And, and that really is the reason that I can go immediately to that 1969 case, is because that's really been the last word from the Supreme Court on the subject of restricting speech based on its content from a hate speech incitement to violence perspective. And that Brandenburg case was a, it wasn't the Nazis, that was the KKK in Ohio. But again, the exact same thing. And essentially, essentially, what the court said was not enough for speech to be hate speech for us to ban it. The advocacy has to fall into three categories.

0:29:17 Andrew: It has to meet all three parts of a particular test. So number one, you have to intend to incite people to violence. It has to be your specific intent to whip people up into a frenzy. Number two, it has to be likely to produce imminent lawless action. That's the phrase from the court. And then actually both parts. So the imminence is the second part of the prong, and then the likelihood that it actually will cause people to be whipped up into a frenzy is the third part of the prong. So you could imagine lots of different kinds of hate speech that trigger, you know, the first part of that, right? You might say, right, I intend to say horrible thing.

0:30:03 Andrew: I mean, as in these cases, right. I mean, it was undisputed that, you know, the Nazis marching through Skokie were saying horrible things about Jews, but their intent was not to immediately incite violence against the Jewish, you know, the Jewish residents in that community. And the fact that it was an entirely Jewish community or predominantly Jewish community, I mean, in a way sort of ironically supports that, right? Like that you are not, it would have been far more dangerous if you had a tiny minority of Jews and a huge population of anti-Semites, and then you whip them up into a frenzy and then incite them to go out and commit violence like, and that it's really that scenario, and that's the only scenario, uh, kind of broadly speaking, that that the First Amendment prohibits

0:30:49 Thomas: Hmm. Interesting. Well, One thing that occurs to me is I have seen a lot in sort of dialogues and interactions online I've had about social justice and such that I think the prevalent view among young people, I could be wrong on this, but we can talk about it just hypothetically, even if I am wrong. I think the prevalent view among young people is that just hatred is an incitement to violence. Like, I really wouldn't be surprised if, as the, you know, as the generation, I guess, like one or is it two below me, I think it's one, you more of age and that generation kind starts to take more control of things, if the paradigm could shift a little bit and the opinion would shift a little bit, and just merely any incitement of hatred is an incitment of violence by default because they think that hatred necessarily leads to violence, or at least could potentially lead to violence.

0:31:48 Thomas: I wonder if that dealt with at all in the way the case was decided?

0:31:53 Andrew: Are two things that come to mind with respect to that. The first is there is a mostly abandoned doctrine of free speech restrictions under the First Amendment called fighting words that you might have heard of, um, that, uh, that uses that exact same logic. You hear this and no rational person could do anything other than be sort of immediately moved to violence. And again, whether that is sort of the reflection of the differences in culture from 100 years ago to today, I don't know. But that area...

0:32:05 Thomas: Right.

0:32:31 Thomas: I do I do wish we could still say them's fighting words. That would be, yeah. And that was a legal defense, right? It was like, well, yeah, you punched him in the face, but them's fighting words, I mean.

0:32:32 Andrew: Right, exactly. And that's exactly what this is. It's yet again, you know, the Bugs Bunny school of jurisprudence is correct. But that's been largely abandoned. I mean, there are cases within the past 50 years that I know of.

0:32:57 Thomas: Well, I don't know that that exactly is what I meant. So maybe I, okay.

0:32:59 Andrew: No, no, no. I meant that sort of analogistically, because I'm going to draw the contrast that when you're talking about hate speech, when you'RE talking about, you standing up at a rally and screaming something out that is hatred and awful, that we do have a test that basically says position you're advocating has to be aligned with the position of the audience, right? Right. And the reason is because otherwise, right, we have something called the heckler's veto. Right. Otherwise, you could go and shut down anybody that you don't like simply by showing up at the rally and starting to get violent. We could draw, you know, maybe some examples to some Donald Trump rallies or what have you.

0:33:02 Thomas: Okay, okay, I

0:33:49 Andrew: But so the idea is to say we're inciting someone to violence, is it's just categorically not the case that if I say something hateful and horrible to you, that that's considered inciting to violence under U.S. law. It's actually the reverse, right? Right. Like the idea of inciting to violence is I am whipping up all of my fellow neo-Nazi skinheads and then we're going to go, you know, commit a violent act. And that's really the deciding one.

0:34:21 Thomas: Guess I was thinking of it more in terms of, I think that I've heard this exact argument word for word. I don't know how representative it is of, you know, 20-year-olds as a whole, but I've heard the argument that when you say, when you dehumanize people, like, for example, and again, we're always talking about the worst examples of speech, like Nazis and all that, because that's where anyone cares about it, because it's contentious. Contentious. We don't really argue about easy, you know, the weather, you know, or anything obvious. But so people who, dehumanize a group of people. So the argument I've heard is if I go and I say trans people are not human. They are sick. They shouldn't be allowed to, you now, be the other gender, whatever, all kinds of nonsense like like that. The argument is that promotes violence because when you dehumanize and encourage that sort of thing, the only logical conclusion is therefore we ought to commit violence against them.

0:34:23 Andrew: Yeah. Right.

0:35:23 Thomas: And I have seen that argument used and I don't personally agree with it, but I am just wondering if given a culture shift, that could someday be the norm, you know, to think like, Like, yeah, anytime you're promoting hatred in general, even if you're not saying, let's go kill trans people, if you are promoting hatred against trans people that's the necessary sort of conclusion of it. I wonder if that could someday be the thought.

0:35:50 Andrew: I'm familiar with that, that kind of discussion. I would say that would be a radical transformation, not only of U.S. law, but of European law, as I understand it. I mean, if we go back to the European hate speech code, right, the first prong still has that public incitement to violence or hatred directed against a group of persons with an identifiable group, right?

0:36:03 Thomas: Well, you see, but that's where I was curious, actually, and that's a chance to ask you another question that's maybe more interesting. Because I think, so I'll take your answer that you find it to be unlikely that that would be the case. But I actually, now I'm more interested by that because public incitement to violence, sure, I get that. Public incitemen to hatred. And that was what I was a little curious about as regards like scathing atheists or something like that. It just, that was an example that came to mind because I was talking to Eli. But how do you define an inciteman to hatred? I mean, because if I just say, again, another terrible example. If I say, you people are sexual deviants prone to molest people. You know, that could be, isn't that an incitement to hatred?

0:36:15 Andrew: Yeah, go ahead.

0:37:05 Thomas: I mean, aren't I inciting people to, surely people who are more prone to molest are people that the general public are going to hate. So I wonder, what does that mean? Like an incitement to hatred. Because if that sounds to me like anything you could say that's disparaging would pretty much incite other people to hate that person, right?

0:37:27 Andrew: Yeah, I think the word incitement implies that there's an act component going on here. And so, again, I can't speak to whether there is case law. I mean, the answer to the question would be, is there case law explaining what incitment to hatred means? And the reason I don't know the answer to that is because that's not a sensible question in US law, because there's no US law that prohibits inciting to hatred, right? I don't think there is a similar body in European law either, because I think the phrase, you know, to call back to episode one that we did together, I, I think that phrase is meant to be interpreted as a phrase, right? Public incitement to violence or hatred, and not, you know, public incitement to violence or public incitement to hatred, read.

0:37:35 Thomas: Hmm. Okay. Hmm. Oh, okay.

0:38:16 Andrew: I agree with you.

0:38:16 Thomas: Oh I was going all Scalia on

0:38:18 Andrew: I wasn't going to accuse you of going Scalia, but I said I didn't accuse you of that. The reason is because certainly it is capable of being read in the way that you've described it. I think the fact that it's capable of be read that way, but to the best of my knowledge, has never been implemented that way. Because remember, we're talking about these are existing. This is a 2008 decision that defines what hate speech is. And the fact that it's not being used that way suggests that the combination of that phrase means that there's got to be some sort of public act quality to it, that it is not enough. So when I think about what would public incitement to hatred be? It would be

0:38:18 Thomas: You. Is that? Uh oh. Uh oh, that's low.

0:39:08 Andrew: Incitment to violence, but the crowd is just just really, really mad, they don't actually take that next step of throwing rocks or physically committing violence. But I mean, if you've whipped up a mob, I mean that's kind of the mindset that that in my mind, right,

0:39:21 Thomas: Oh, Okay, sort of, like, assault and battery, where I remember that being weird when I had my law class, like assault is just like as you're coming at the guy or something weird like that, and then, yeah,

0:39:31 Andrew: Batteries, the actual content. Yeah. And the reason that they have those two, I mean, we're down a little bit, but it is, you know, It's directly now, and the reason is because, you know, you could, you could say the same thing with, you know, murder and attempted murder, right? Like you would, you wouldn't want to say, oh, okay, like congratulations because you missed when you tried to punch somebody, uh, now they can't have you arrested, right?

0:39:39 Thomas: Well, it's sort of analogous, though, to what you just said. Hmm. Oh, Right.

0:39:56 Andrew: Like, you, you've whipped up this mob of, you know, incompetent buffoons who are unable

0:39:56 Thomas: Yeah, yeah, And they all try, they All grab a bunch of baseball bats, and then they, they, uh, they wipe out on a, they slip on a banana peel before they're able to... I get it.

0:40:01 Andrew: Right, exactly. And I think that's what I mean, again, you know, as somebody who drafts these kinds of of things, right? You, as a lawyer, you're thinking, okay, I don't want to create like a safe haven for, you know, wandering angry racists who are trying to incite a mob. Okay, we're gonna put or hatred that but but I don't. Again.

0:40:21 Thomas: All right. Yeah.

0:40:30 Thomas: That makes sense to me. Yeah, yeah. Well, and actually what I was going to say, I think the most crucial detail that I'm very glad you illuminated for me is that this agreement is, like you said, merely enforcing what's already on on the book. So even though I think you and I both, I think we agree that we're not totally in favor of the restrictions on free speech that are in the European Union, European countries, but this particular agreement with Facebook, Twitter, Google, and YouTube, I guess you would say that that's not really the problem, right? Like it's not, if there is a problem, it would be with that initial 2008 law. Is that accurate to say anything?

0:40:31 Andrew: Yeah, yeah. Yeah. And, and I mean, I'm looking to the 2008 lobby because the 2008 decision because that's what's cited. But that history that that separate history of how Europe handles hate speech that differs from how the US handles hate speech is, in my mind, the really salient difference, right? And in particular, right, in the US, we have those protections where it's not enough to just want to incite to violence or hatred. The court has to say, you are imminently doing so and you are likely to do so. So, you you know, it really further restricts Stanley. Like, it would leave open the possibility that, you know if I have a snowball, like I publish a hate track that is, you know sort of snowballing over time, you know the way classic philosophical works have gathered strength in time, right? That might be something that you could prosecute under the EU rules and you wouldn't be able to do so. I mean, it's just crystal clear you wouldn't be able to do so under the U.S. rules. It wouldn't pass the imminence test.

0:41:33 Thomas: Mm-hmm.

0:42:20 Andrew: And to me, like, that's right. Anything where you have time to evaluate is subject to the sort of classic, you know, classical liberal response of the best way to counter this bad idea is with more speech, right? And there's time to have a discussion.

And the only time you want to pass a law and restrict somebody from saying something is if it's going to short circuit that discussion and and all of the things that we've talked about, you know, that even the fighting words, right, the the justification for the prohibition was no, no, no, there there can't be a discussion when somebody gets in your face and and them fighting words, that the only thing that happens next is somebody gets punched, and we don't want people to get punched, so therefore we're to prohibit it and and I think that's the same approach, you know, that the US has taken with with hate speech, which is, gosh, this is really awful stuff, but so long as there's time to evaluate it, uh, let's, you know, counter it with with more speech rather than, uh, but let's prohibit it in the very rare cases where it's not going to lead to a discussion, it's going to to lead to to imminent violence. Yeah.

0:43:32 Thomas: Right. So, in terms of what's actually illegal in the U.S., you know, it's things like... So, maybe I can... It sounds like I can shout fire in a crowded theater, right? But can I not go into a crowded out of theater and shout, hey, let's all kill Andrew.

0:43:49 Andrew: That exactly, yeah.

0:43:50 Thomas: Okay, okay. But I can shout, hey, you know, Andrew has some qualities that I really think we all don't like, if you know what I mean. Yes, let me tell you about Andrew and why we all should hate him. Can I do that?

0:43:50 Andrew: That's exactly right, um, yeah, well, that, right, That is, that is performing your civic duty. So, uh, but well, you know, you could imagine, right, like showing up on and think about, like, the um the Occupy Wall Street protest, for example, right, like you show up in a building and you're delivering a political speech, but, you know, it's, um, say, you know, and the person who owns this building, you know, busted the unions and took money out of each, you know, out of your paychecks, and he's right upstairs three floors up and we outnumber him 500 to one and they can't possibly stop, right, I mean, you could imagine, you know, sort of the tipping point and and it's hard to draw, you know, completely black and white line, but but you could easily imagine that tipping over into, oh, my gosh, like, you've now just, instead of delivering a political screed against capitalism, you've said, why don't the 500 of us pick up heavy objects and storm up two flights of stairs and, you know, beat this guy senseless, and right, and that's again you know, that the the law wants to protect, um, people from being beaten senseless, uh, even if they are, you know, capitalist tycoons who have busted the unions and so forth, and

0:44:09 Thomas: Okay.

0:45:18 Thomas: Yeah, makes sense. Well, on, actually on the topic of protests, uh, did you follow what happened with uh the Banana Man at Reason Rally? I know you were at Reason Rally, I

0:45:28 Andrew: I I I did not, so I really want to hear, because I I got my picture taken with the Banana Man, which, uh, was fantastic, um, uh, I I immediately emailed

0:45:36 Thomas: Thought it was so weird that he did that because a lot of atheists got their picture taken with him and and

0:45:38 Andrew: Right right what yeah I look, he is, and we're we're talking about Ray Comfort, for the like one listener viewers who who doesn't know who the Banana Man is, uh, look, he's, he has a symbiotic relationship with with the atheist community, right, like, his, he called his blood, I know it's now called like Comfort Food or whatever, but for a while it was called, like, you know, Atheists or Idiots, or something like that, and his movie that he was out there with signs is called, you know, it's called the AtheistMovie.com or something like that, so, you know, it, it, he feeds off of us, so it didn't surprise me that he's happy to, uh, you know, get get his

0:45:42 Thomas: Yeah, yeah. I honestly couldn't remember his name. I think

0:46:24 Andrew: Picture, taken, in the, right, right.

0:46:24 Thomas: It surprised me a little bit because I actually would rather just think of him as sincere. I would rather think of everybody as sincere, really. I would rather we lived in a world of sincere people, and even though it would make it true that I guess he probably hated us more, I'm more comfortable with that than the idea that it's kind of an act and he's just sort of benefiting from it. I didn't like it. It was kind of news to me to see all these, you know, because a hundred people, you know, that I know on Facebook posted pictures with him. And I thought, you know, in a weird way, he lost some of my respect. I used

0:46:36 Andrew: Right yeah no, I look, I think that's the, yeah,

0:47:07 Thomas: To respect him for being so nuts about, you Know, atheists that he was going crazy with bananas and all all that. Oh, again, I'm really, really going against the previous episodes. Anyway, go ahead.

0:47:15 Andrew: I mean that's that's yeah no, that, I mean, oh gosh, yeah, bananas, uh, that that's that's the pendulum position, right, like, that, you, he's, he always said, no, I'm not offended, I I have have great respect when people come up and try and convert me. And it's the Christians who think I'm going to hell, but don't care enough about me to try and save my soul. Like that's where I really, you know, you might've said it, he probably stole it from you. So that makes sense. So what happened?

0:47:39 Thomas: Yeah, I've said that too. Shoot, I didn't know Penn got to it first. Yeah, most likely, most like that. Oh,

0:47:49 Andrew: You said, yeah,

0:47:49 Thomas: Oh, I am surprised. So, shoot, I may not be able to give a good explanation, but I will attempt. He was going to have a counter-protest, and he wasn't allowed to, and I think it came down to to he needed some sort of permitting for it. And I know it was an interesting issue. In general, what is the law around that? I mean, you can counter protest, but is it a question of you have to get someone's permission to do it? Or maybe I have that wrong.

0:48:17 Andrew: No, uh, I am aware of this. And these fall under a restriction on free speech that is permitted in the Constitution called time place and manner restrictions, and basically it's the opposite everything we've talked about so far are content-based restrictions, right? But um, and those are generally disfavored except when um, except when, when uh, the it meets the criteria that we discussed. But um, what are generally permissible are time place in manner restrictions. So for example, there's nothing wrong with my delivering a lecture on, uh, you know, Hegelian dialectics and the demise of the capitalist system.

There is something wrong if I do it via megaphone while driving through a crowded neighborhood at three in the morning, right? So And and in the the protest and counter-protest, uh, situation it, my understanding, again, I don't know the specific DC regulation that came into came to play here, but um, you know, you're a Christian, you want to on your own attend the reason rally and argue with those crazy atheists, great. But once you hit a certain critical mass, right, you would have the situation of a group that has valid permits that is set and organizing. And on the National Wall, right?

0:49:07 Thomas: Right.

0:49:48 Thomas: Right. Yeah. I

0:49:50 Andrew: You know, content of your speech, we want to protect the content of your speech. We just want to make sure that you're not using the speech in a way that the methodology that your methodology is the wrong word, that the that the mode of delivery of the speech is, you know, itself interfering with someone else's right. So You know I

0:50:10 Thomas: Have so many. This is excellent. I've so many questions on this. How are you doing on time? He's still, oh,

0:50:15 Andrew: Actually, can we, can we pick it up? I've got, I actually have to run, but but I would love to, to pick it, it up and uh, and do a part two, and then maybe get back Awesome.

0:50:22 Thomas: Well, shoot, we've got so many pending parts. All right, you've got to run. Thanks so much for giving us another bit of your time, Andrew Torrez. There's no limit to the things I could ask you. Here, I'll do another teaser. We'll have two teasers on. I wonder why that couldn't be applied to the Westboro Baptist Church protesting funerals. I'm sure there's a good answer, because otherwise it would have been applied, but But that was the first question, and then I had more. But I'll leave that as a teaser for the next time, unless we do this Scalia thing. I don't know. The next time we talk to Andrew Torrez. Thanks so much for coming on again. I love having you on. It's an absolute pleasure.

0:51:04 Andrew: I love, I love being on. Thanks for, thanks for having me, and uh, keep up the great work. Take care, bye.

0:51:08 Thomas: All right. Thanks.