How to foster productive and responsible debate

What if you own a hotel,

and one of the key principles
in your mission statement

is a commitment to treat
all employees and customers equally,

including on the basis
of gender and religion?

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

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

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

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

What do you do?

Do you host the event
and get criticized by some,

or refuse and get criticized by others?

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

to navigate ideological disagreement
and controversial speech,

and I defend my clients,

whether in court or from the government,

when their actions are challenged.

The structures I recommend

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

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

The reason is that we need disagreement.

Creativity and human progress

depend on it.

While it may be often easier

to speak with someone who agrees
with everything you say,

it's more enlightening
and oftentimes more satisfying

to speak with someone who doesn't.

But disagreement and discord
can have real and meaningful costs.

Disagreement, particularly
in the form of hateful speech,

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

And in a world in which polarization
and innovation are increasing

at seemingly exponential rates,

the need to create structures for vigorous
but not violent disagreement

have never been more important.

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

to go to look for answers.

You, like I, may have often
heard somebody say

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

or even somebody else,

"violates" the First Amendment.

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

The First Amendment only applies

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

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

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

Almost everything else cannot.

But the First Amendment has no relevance

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

And that's a good thing,

because it means private entities
have at their disposal

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

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

Here are some examples.

When you go to university,

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

But some ideas and the words
used to express them

can cause discord,

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

or the exploration
of a controversial issue in class.

In order to protect
both intellectual freedom

and their most vulnerable students,

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

free from the possibility of any sanction,

to hear each other's viewpoints.

Sometimes students don't want to meet,

and that's fine.

But in other circumstances,

mediated exposure to an opposing view
can result in acknowledgment,

recognition of unintended consequences

and a broadening of perspectives.

Here's an example.

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

and those supporting the Palestinians

were constantly reporting each other

for disrupting events,
tearing down posters

and engaging in verbal confrontations.

Recognizing that most of
what the students were reporting

did not violate the university's
disciplinary code,

the university invited
both groups to sit down

in a so-called "restorative circle,"

where they could hear
each other's viewpoints,

free from the possibility of sanction.

After the meeting,

the ideological disagreements
between the groups

remained as stark as ever,

but the rancor between them
significantly dissipated.

Now, obviously, this doesn't
always happen.

But by separating reactions to speech
from the disciplinary system,

institutions of higher education
have created a space

for productive disagreement
and a broadening of perspectives.

We're all biased.

I don't mean that in a bad way.

All of us are influenced, and rightly so,

by our family background,
our education, our lived experience

and a million other things.

Organizations, too, have influences,

most importantly, the beliefs
of their members,

but also the laws
under which they're governed

or the marketplace in which they compete.

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

and they can be vital
for attracting and retaining talent.

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

can also be a challenge,

particularly when what we're talking about

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

The temptation to find speech
harmful or disruptive

simply because we disagree with it

is real.

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

In this situation, third parties can help.

Remember the hotel,

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

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

about that group's identity and message,

the hotel could instead
rely on a third party,

say, for example,

the Southern Poverty Law Center,

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

or indeed even its own
outside group of experts

brought together from diverse backgrounds.

By relying on third parties

to draw lines outside the context
of a particular event,

organizations can make content decisions

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

The line between facts
and opinions is a hazy one.

The internet provides the opportunity
to publish almost any position

on any topic under the sun.

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

It allows for the expression
of minority viewpoints

and for holding
those in power accountable.

But the ability to self-publish freely

means that unverified
or even flat-out false statements

can quickly gain circulation and currency,

and that is very dangerous.

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

It certainly can be appropriate at times,

but there are other tools
available as well

to foster productive
and yet responsible debate.

Twitter has recently
started labeling tweets

as misleading, deceptive
or containing unverified information.

Rather than block access to those tweets,

Twitter instead links to a source
that contains more information

about the claims made.

A good and timely example
is its coronavirus page,

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

and what to do if you contract it.

To me, this approach makes a ton of sense.

Rather than shutting down dialogue,

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

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

against more authoritative sources,

it may create incentives

for more responsible speech
in the first place.

Let me end with a hard truth:

the structures I've described
can foster productive debate

while isolating truly harmful speech.

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

perhaps deeply offensive

but also with the potential
to contribute to public debate.

In this situation,

I think as a general matter,

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

Here's why.

For one, there's always the risk

that an innovative
or creative idea gets squelched

because it seems unfamiliar or dangerous.

Almost by definition,

innovative ideas challenge orthodoxies
about how things should be.

So if an idea seems
offensive or dangerous,

it could be because it is,

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

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

that deficiency should be shown
through open debate

rather than suppression.

To be very clear:

false speech can lead
to devastating real-world harms,

from the burning of women
accused of being witches in Europe

in the 15th century

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

to the Rwandan Genocide.

The idea that the remedy
for false speech is more speech

isn't always true.

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

A famous story from First Amendment
case law shows why.

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

through the leafy, peaceful suburb
of Skokie, Illinois,

home to a significant number
of Holocaust survivors.

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

and the Nazis sued.

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

and back down again.

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

and that they could
display their swastikas

and give their salutes while doing so.

But when the day for the march came,

and after all that litigation,

just 20 neo-Nazis showed up

in front of the Federal Building
in Chicago, Illinois,

and they were met
by 2,000 counter-protesters

responding to the Nazis' messages of hate

with ones of inclusion.

As the Chicago Tribune noted,

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

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

shows this isn't always
how these stories end.

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

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

can best be responded to
not through suppression

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

Thank you.