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What if you own a hotel,

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and one of the key principles
in your mission statement

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is a commitment to treat
all employees and customers equally,

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including on the basis
of gender and religion?

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And then a large group
books an event at your space,

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and when you look at the booking,
you realize it's a religious group,

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and one of their key principles
is that women should never leave the home

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and should have no opportunities for
professional development outside of it.

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What do you do?

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Do you host the event
and get criticized by some,

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or refuse and get criticized by others?

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In my work, I counsel organizations
on how to create rules

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to navigate ideological disagreement
and controversial speech,

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and I defend my clients,

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whether in court or from the government,

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when their actions are challenged.

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The structures I recommend

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recognize the real harms that can come
from certain types of speech,

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but at the same time, seek to promote
dialogue rather than shut it down.

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The reason is that we need disagreement.

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Creativity and human progress

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depend on it.

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While it may be often easier

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to speak with someone who agrees
with everything you say,

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it's more enlightening
and oftentimes more satisfying

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to speak with someone who doesn't.

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But disagreement and discord
can have real and meaningful costs.

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Disagreement, particularly
in the form of hateful speech,

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can lead to deep and lasting wounds
and sometimes result in violence.

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And in a world in which polarization
and innovation are increasing

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at seemingly exponential rates,

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the need to create structures for vigorous
but not violent disagreement

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have never been more important.

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The US Constitution's First Amendment
might seem like a good place to start

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to go to look for answers.

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You, like I, may have often
heard somebody say

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that some form of a speech restriction,
whether from an employer, a website,

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or even somebody else,

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"violates" the First Amendment.

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But in fact, the First Amendment usually
has little if any relevance at all.

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The First Amendment only applies

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when the government is seeking
to suppress the speech of its citizens.

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As a result, the First Amendment
is by design a blunt instrument.

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A narrow category of speech
can be banned based on its content.

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Almost everything else cannot.

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But the First Amendment has no relevance

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when what we're talking about
is a private entity regulating speech.

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And that's a good thing,

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because it means private entities
have at their disposal

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a broad and flexible set of tools
that don't prohibit speech,

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but do make speakers aware
of the consequences of their words.

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Here are some examples.

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When you go to university,

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it's a time for the free
and unrestricted exchange of ideas.

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But some ideas and the words
used to express them

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can cause discord,

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whether it's an intentionally inflammatory
event hosted by a student group

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or the exploration
of a controversial issue in class.

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In order to protect
both intellectual freedom

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and their most vulnerable students,

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some universities have formed teams
that bring speaker and listener together,

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free from the possibility of any sanction,

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to hear each other's viewpoints.

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Sometimes students don't want to meet,

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and that's fine.

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But in other circumstances,

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mediated exposure to an opposing view
can result in acknowledgment,

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recognition of unintended consequences

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and a broadening of perspectives.

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Here's an example.

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On a college campus, a group of students
supporting the Israelis

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and those supporting the Palestinians

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were constantly reporting each other

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for disrupting events,
tearing down posters

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and engaging in verbal confrontations.

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Recognizing that most of
what the students were reporting

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did not violate the university's
disciplinary code,

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the university invited
both groups to sit down

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in a so-called "restorative circle,"

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where they could hear
each other's viewpoints,

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free from the possibility of sanction.

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After the meeting,

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the ideological disagreements
between the groups

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remained as stark as ever,

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but the rancor between them
significantly dissipated.

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Now, obviously, this doesn't
always happen.

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But by separating reactions to speech
from the disciplinary system,

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institutions of higher education
have created a space

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for productive disagreement
and a broadening of perspectives.

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We're all biased.

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I don't mean that in a bad way.

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All of us are influenced, and rightly so,

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by our family background,
our education, our lived experience

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and a million other things.

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Organizations, too, have influences,

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most importantly, the beliefs
of their members,

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but also the laws
under which they're governed

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or the marketplace in which they compete.

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These influences can form a critical part
of a corporate identity,

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and they can be vital
for attracting and retaining talent.

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But these "biases," as I'm calling them,

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can also be a challenge,

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particularly when what we're talking about

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is drawing lines for allowing some speech
and not allowing others.

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The temptation to find speech
harmful or disruptive

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simply because we disagree with it

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is real.

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But equally real is the harm that can come
from certain types of expression.

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In this situation, third parties can help.

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Remember the hotel,

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trying to decide whether or not to allow
the religious group to host its event?

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Rather than having to make
a complex, on-the-spot decision

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about that group's identity and message,

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the hotel could instead
rely on a third party,

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say, for example,

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the Southern Poverty Law Center,

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which has a list of hate groups
in the United States,

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or indeed even its own
outside group of experts

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brought together from diverse backgrounds.

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By relying on third parties

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to draw lines outside the context
of a particular event,

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organizations can make content decisions

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without being accused of acting
in self-interest or bias.

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The line between facts
and opinions is a hazy one.

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The internet provides the opportunity
to publish almost any position

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on any topic under the sun.

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And in some ways, that's a good thing.

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It allows for the expression
of minority viewpoints

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and for holding
those in power accountable.

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But the ability to self-publish freely

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means that unverified
or even flat-out false statements

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can quickly gain circulation and currency,

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and that is very dangerous.

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The decision to take down a post
or ban a user is a tough one.

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It certainly can be appropriate at times,

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but there are other tools
available as well

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to foster productive
and yet responsible debate.

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Twitter has recently
started labeling tweets

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as misleading, deceptive
or containing unverified information.

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Rather than block access to those tweets,

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Twitter instead links to a source
that contains more information

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about the claims made.

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A good and timely example
is its coronavirus page,

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which has up-to-the-minute information
about the spread of the virus

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and what to do if you contract it.

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To me, this approach makes a ton of sense.

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Rather than shutting down dialogue,

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this brings more ideas,
facts and context to the forum.

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And, if you know that your assertions
are going to be held up

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against more authoritative sources,

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it may create incentives

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for more responsible speech
in the first place.

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Let me end with a hard truth:

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the structures I've described
can foster productive debate

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while isolating truly harmful speech.

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But inevitably, some speech
is going to fall in a grey area,

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perhaps deeply offensive

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but also with the potential
to contribute to public debate.

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In this situation,

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I think as a general matter,

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the tie should go to allowing
more rather than less speech.

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Here's why.

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For one, there's always the risk

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that an innovative
or creative idea gets squelched

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because it seems unfamiliar or dangerous.

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Almost by definition,

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innovative ideas challenge orthodoxies
about how things should be.

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So if an idea seems
offensive or dangerous,

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it could be because it is,

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or it might simply be
because we're scared of change.

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But let me suggest that even if
speech has little to no value at all,

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that deficiency should be shown
through open debate

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rather than suppression.

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To be very clear:

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false speech can lead
to devastating real-world harms,

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from the burning of women
accused of being witches in Europe

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in the 15th century

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to the lynching of African-Americans
in the American South,

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to the Rwandan Genocide.

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The idea that the remedy
for false speech is more speech

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isn't always true.

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But I do think more often than not,
more speech can help.

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A famous story from First Amendment
case law shows why.

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In 1977, a group of neo-Nazis
wanted to stage a march

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through the leafy, peaceful suburb
of Skokie, Illinois,

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home to a significant number
of Holocaust survivors.

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The City Council immediately passed
ordinances trying to block the Nazis,

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and the Nazis sued.

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The case made it all the way
up to the US Supreme Court

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and back down again.

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The courts held that the neo-Nazis
had the right to march,

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and that they could
display their swastikas

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and give their salutes while doing so.

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But when the day for the march came,

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and after all that litigation,

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just 20 neo-Nazis showed up

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in front of the Federal Building
in Chicago, Illinois,

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and they were met
by 2,000 counter-protesters

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responding to the Nazis' messages of hate

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with ones of inclusion.

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As the Chicago Tribune noted,

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the Nazi march sputtered
to an unspectacular end after 10 minutes.

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The violence in Charlottesville, Virginia,
and indeed around the world

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shows this isn't always
how these stories end.

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But to me, the Skokie story is a good one,

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one that shows that the fallacy
and moral bankruptcy of hateful speech

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can best be responded to
not through suppression

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but through the righteous power
of countervailing good and noble ideas.

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Thank you.