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  • Transcriber: Joseph Geni Reviewer: Camille Martínez

  • 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.

Transcriber: Joseph Geni Reviewer: Camille Martínez

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How to foster productive and responsible debate | Ishan Bhabha

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    林宜悉 posted on 2020/11/20
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