Privacy & Freedom of the Press
Articles,  Blog

Privacy & Freedom of the Press

Welcome, all of you to Columbia Law School
for the 2017 Federalist Society National Student Symposium. It is an honor, truly an honor, looking out
at this room and seeing, wow, from what I can understand more than 600 people registered
for this important convening, and it’s truly an honor for Columbia to be able to host it
for the first time since 2006. So we welcome you all here, you are our honored
guests. I’m particularly pleased to welcome our distinguished
panelists this evening and presenters, especially members of the Federal Judiciary who are here
and will be helping to moderate discussions over the next two days. And I am not in charge of the introduction
of our panelists, but I am really delighted to welcome Judge Raggi, Professor Irina Manta,
Professor Richard Epstein, Professor Steve Coll, and Jameel Jaffer, who, and I’ll mention
in just a moment before I close my remarks. So many things that a dean is asked to do
when welcoming a group like this involves thanks, so I’ll offer a few thanks and then
I’ll offer a few words about the importance of the symposium tonight. The Federalist Society, the National Federalist
Society has offered stalwart support to the activities of all of the chapters of the Federalist
Society that are here tonight, indeed in order to help support this conference, were right
there behind us in supporting and helping us pull this off. Sullivan & Cromwell was a generous sponsor. The Fund for American studies was a generous
sponsor. I also want to recognize the tremendous and
tireless efforts of Columbia’s FedSoc chapter, for their organization and planning. We began a conversation more than a year ago
about hosting this symposium and they have been creative, they’ve been hard-working,
they’ve been tireless, and I think that you will all benefit from the fruits of their
hard work to bring this convening together. So I want to actually honor and thank them,
as well. The focus of this symposium, the First Amendment
in Contemporary Society, I hardly need to say that this is a particularly timely and
important issue. The topic of the First Amendment is part of
public affairs. It is an exciting and vital time in our society
right now. And issues around speech and First Amendment
are really on the top of all our minds. The University is a special place. It’s a convenor of the bar, the bench, the
government, scholars, students from across the nation, and it’s a magnet for deep engagement
around the most difficult issues of our time, and a place where we can, through our dialogue
move forward in addressing the most difficult social problems. This convening will be no exception. Having looked at the program and the topics
that this group is going to be tackling, both the people at the front of the room and all
of you collectively through your questions, comments, and engagement outside of the panels,
I am very, very excited about the force of the ideas that we’re going to be moving forward
here during the course of these couple of days that we come together. So I’m very, very honored to be part of that,
as a leader of Columbia Law School. I also want to say that Columbia is a place
that, in particular, not just the university, but is place, in particular, takes the First
Amendment and the study of the First Amendment very seriously. Our President Lee Bollinger is a leader as
a scholar of the First Amendment, and we very recently created the Knight First Amendment
Institute, which is to be led by the Director Jameel Jaffer. I mentioned that I would be coming back to,
this new project is surely going to be the beginning of a continuing engagement here
at Columbia with issues around the First Amendment. So, with that I’ll just close by once again
welcoming all of you, telling you how grateful I am that we are here together to move forward
with this important conversation. Please enjoy the two days of this conference. Thank you so much. So I’m pleased to introduce the moderator
of our first panel of the weekend, Judge Reena Raggi of the Second Circuit Court of Appeals. Judge Raggi earned her BA from Wellesley College
and her JD from Harvard Law School. Before joining the bench, Judge Raggi worked
at Cahill Gordon and served as Interim US Attorney for the eastern district of New York. In 1987 she was appointed by President Reagan
to a federal judgeship on the eastern district of New York. And in 2002 she was appointed to the Second
Circuit by President George W. Bush. So please join me in welcoming Judge Raggi. Good evening. It is my pleasure this evening to chair the
kickoff panel for this year’s symposium on the First Amendment in Contemporary Society. The particular focus of this panel will be
privacy and freedom of the press. I think I can assume that we all value privacy,
never more so than when it’s our own. Not so much when it’s other people’s privacy. There tends to be, in human nature, a curiosity,
sometimes gentle, sometimes morbid, about what goes on in the lives of others. That keen observer of human nature, Jane Austen,
wrote about this when she said, “For what do we live “but to make sport of our neighbors
“and for them to laugh at us in their turn.” Well, now we come to the other side of our
panel discussion tonight, not privacy, but the press. As all, you law students know, for the framers,
a free press was so integral to a free society, that the First Amendment famously pronounces
that Congress shall make no law abridging the freedom of the press. And yet, there’s always some disquiet. We hear that “The press is overstepping in
every direction “the obvious bounds of propriety and decency. “Gossip is no longer the resource of the idle
“and of the vicious, but has become a trade “which is pursued with industry, as well as
effrontery.” That quote is not from this afternoon’s White
House press release. It’s from the seminal 1890 Warren-Brandeis
article on the right to privacy. Proof I suppose, that the more things change,
the more they remain the same. So, it’s worth considering what constitutes
a reasonable expectation of privacy. The right to be left alone, as Warren and
Brandeis put it, in a world that these two men could never have imagined. One where card keys record our every entry
and departure from certain places. Electronic devices track our every internet
search and cellular communication. Our financial and medical records are almost
singularly electronic and almost everyone we encounter on the street or in the subways
or in any public place has the ability, often surreptitiously, to record our images, words,
or actions and transmit them around the world. It’s worth considering, too, what constitutes
the press when a blogger in his pajamas may be reporting or commenting on the same subjects
as the New York Times. To explore these privacy and press challenges,
we have an outstanding panel, indeed. Professor Richard A. Epstein, the Lawrence
A. Tisch Professor of Law and of the New York University School of Law writes and teaches
extensively on a range of legal subjects from administrative law to anti-trust, Constitutional
law to corporations, criminal law, environmental law, health law, labor law, Roman law. His prolific scholarship is just his wide
ranges– reging with his newest book being the Classic Liberal Constitution, the Uncertain
Quest for Limited Government, Professor Epstein, we’re also glad to have you join us tonight
on this panel. Professor Irina D. Manta is a professor of
law at the Maurice Deane School of Law at Hofstra University and the founding director
of Hofstra Center for Intellectual Property Law. She teaches and writes extensively on intellectual
property subjects, often examining the intersection between that area of law and social science. She is the author with colleagues of a casebook
on The Criminal Law of Intellectual Property and Information, Professor, welcome. Our next two panelists need no introduction
at Columbia. Jameel Jaffer, as you’ve already heard, is
the director of the Knight First Amendment Institute here at Columbia, having previously
served as the Deputy Legal Director of the American Civil Liberties Union. He created the ACLU’s project on speech, privacy,
and technology, and directed its litigation regarding the NCA’s surveillance programs
disclosed by Edward Snowden. He has argued cases at all level of the federal
court system, including the Supreme Court. Professor, thank you for joining us. And finally, Steve Coll is the Dean and Henry
R. Luce Professor of Journalism at Columbia’s Graduate School of Journalism, a staff writer
and reporter, a foreign correspondence senior editor, managing editor of the Washington
Post, a writer now for the New Yorker, Dean Coll is the recipient of two Pulitzer Prizes,
among a host of journalism awards and honors. We’re so glad we have you tonight, Dean, to
keep our feet on the ground. So how are we going to proceed? Each panelist is going to speak for about
10 or 15 minutes on a particular area of tonight’s topic. I expect that will trigger further thoughts,
even challenges among them that we’ll pursue for a bit. And then we’ll try to open the floor for some
questions by all of you. So I’m going to start by asking Professor
Epstein to share his thoughts on the topic and the extent to which changing times, technologies
require the rethinking of legal principles. Thank you very much for having me here. And let me first begin by defining the term
contemporary in a way which fits my intellectual predilection as somebody whose major academic
interest is often the Roman law. When I came to Columbia College in 1960, I
took a course, one of the great courses at the college had to offer in contemporary civilization,
and I think we started with Plato’s Minos, or something of that particular sort. And the basic conceit behind that particular
course in a contemporary civilization is that great thoughts are always contemporary and
that what you really have to do to understand modern times is to understand how it was that
the ancients perceived their particular problems and then ask whether or not some changes in
social circumstances would lead us, as Raggi said, to some reconsideration of what’s going
on. The judge unfortunately stole my thunder by
quoting extensively from a passage in Warren and Brandeis on the right to privacy, but
let me see if I can elaborate a little bit more on why this article, which is universally
lauded as one of the great achievements of western civilization is in fact nothing more
than intellectual mess. Got your tongue, huh? The point about this article is it does what
I like to call timeless history. It begins with a statement, the protection
of person and property has been something which we’ve always cared about from the beginning
of time to the present. And then it announces in 1890, as you could’ve
announced in 1790 or 1990 or 2016 the vast change in social, economic, and political
circumstances always require us to rethink what is going on, after which was it does
is then start to tell you something about the evolution of the law. It talks about the rise of trespass, the rise
of assault, the rise of defamation, and then it starts to indicate that maybe we really
have to think about the rise of privacy in connection with the freedom of the press. It is doing what I like to call sort of timeless
history. There’s not a single date there as to which
particular document began or document developed when or why. Everything is done in this grand, magisterial
fashion, as if if you don’t specify anything, you cannot be wrong because you’re only speaking
in universal truths. But if you then tried to figure out exactly
what these period arguments are and how they developed, it’s a much more difficult task
to do. And so what I’m gonna do is to go back to
my good Roman origins, as it were, medieval training, and my early American training,
and try to figure out, if you didn’t know anything about the right to privacy as Brandeis
and Warren wanted to put it, what would be the way in which you would start to think
about the kinds of protections that individuals would have. And then once you understand what the protections
that individuals have with respect to privacy, pretty much everything that is going to be
left over will in fact be protected under the freedom of action of which the freedom
of speech is, of course, one particular part. And when they start talking about, correctly,
the universal protection of property, of certain kinds of individuals, what they mean is that
all sorts of individuals have some kind of perimeter or rights about them which are the
people are not allowed to enter. This is self-consciously a kind of libertarian
notion in which the argument is that a major duty of all individuals vis a vis other individuals
is to abstain from the use and the threat of force and to substain from misrepresentations
either to somebody, which would be common law fraud, or about somebody, which would
turn out to be the law of defamation. And the law of defamation is much older than
the law of privacy, precisely because the concern of the ability of one individual to
track from another person so that others will not associate or do business with them was
very well understood in an age in which false statements about another individual could
lead to their political demise or their execution or their murder. So defamation is well understood in very early
times as a very serious offense, and so to be tantamount to murder. Well, in this particular situation, we don’t
have a conception of privacy, except the extent that we have this perimeter around it. But then there is the other question about
what happens if you have information about yourself and you want to share it with other
individuals? Well, essentially the correct response to
this particular situation is that if I was to share with the judge some personal tidbit
about myself and I told her to keep it in confidence, this would be a contractual obligation
on her part to do so. And unless there was some very powerful justification,
she would be engaged in some violation of this particular arrangement if she leaked
the information to anybody else in this or in any other room. And so what happens is you then start to create
these confidential arrangements, and it’s important to understand just how enormously
valuable they are, because essentially from its gains from trade in the world of information. So the information you can share with your
doctor in effect can allow for effective treatment. The information that you share with one of
your subcontractors allows that party to engage in the use of trade secrets for their mutual
advantage of the two parties. And virtually every time you see this, you’re
fine. So the question you then have to ask is if
in fact you’ve got these two conceptions of privacy there, and then you play the same
residual game, everything that’s not in those two particular boxes turns out to be fair
game. What happens is you slightly rephrase the
First Amendment to put back the words that Judge Raggi quite cleverly left out. It doesn’t say Congress shall make no law
respecting the freedom of the press, it’s the freedom of speech or the press. And what you then start to do is to ask, well
now how do we define the freedom of speech? And the kind of simple-minded answer that
you give is that to the extent that there is no particular wrong as a common law nature,
with respect to what you’re doing, you’re allowed more or less to say everything that
you want. And so, what this then does is it gets us
into sort of a complicated question about how good were our friends Warren and Brandeis
when they decided that the right of privacy had to go beyond the parameters that they
stated? And when I said the thing was something of
an intellectual mess, not only do I think they garbled up the history, but it turns
out if you actually go and cheat the subsequent development of the law in this particular
area, oh what do you come up with? It’s essentially the entire edifice that Warren
and Brandeis put together about gossip and about small talk and about pettiness, turns
out to have gone the way of the Boston Brahmin. It is no longer accepted as a dominant code
of speech, because it has, at least in modern Constitutional terms, been swallowed by what
we would call, and what certain deans might love, known as the newsworthiness privilege,
which is defined very broadly and very subjectively so that any time you find a tidbit of gossip
about somebody else, which is in fact going to be of interest to some kind of a third
party, this no longer turns out to be idle gossip. This turns out to be news which will allow
you to shape and form public policy at the highest kind of level. So what happens is you then have to ask yourself
the following question, is the newsworthiness privilege so strong that essentially what
it does is to get rid of all the other kinds of protections within the traditional framework? And this, in fact, is a very important First
Amendment issue and I think for the most part, basically whenever the press says that we
are entitled to do something, which falls within the two prohibitions that I’ve mentioned
on the breach of confidentiality and to the law of defamation, almost invariably it is
the press which is in fact overstepping its boundary lines and something ought to be done
to constrain them. And so to give you one illustration, when
you state the New York Times against Sullivan there’s no question if you look at the particular
facts of that particular case, having $500,000 of damages against the New York Times, but
what it didn’t say about Bull Connor or about Mr. Sullivan is a bit of an excess and there
are thousands of ways within the law of defamation that one ought to be prepared to protect the
press against that, the most obvious being general damages were wildly out of proportion
to harm, and it wasn’t clear that this was of and concerning the plaintiff. But when you then start to introduce the actual
malice defense, requiring not the common law rule of strict liability subjected to privilege,
but in fact a different kind of rule which says you may defame somebody so long if there
is a public figure, you do so without malice or recklessness of some sort or another, to
my mind that turns out to be a mistake. Ironically when Judge Taft on the Sixth Circuit
long before he went on the Supreme Court said that the appropriate accommodation was on
false statements of fact, of the strict liability rule, on statements of opinion they’re absolutely
protected, how do we know which is which? Well, it’s gonna be an opinion if you give
the baseline of facts from which others can make a judgment for or against, I always thought
that was, in fact, a better accommodation on the relationship of freedom of speech and
the press, so the law of defamation that the Supreme Court started to use. And similarly when it comes to the question
of what one is entitled to do with information that was then confidentiality, it seems to
me that the correct response is going to be two-fold. One, if it turns out that you have an individual
who receives something in confidence and they decide to leak it to the press, that this
is in fact a very serious breach of confidence. And in my particular view, it is subject to
an injunction not commonly accepted today on the grounds that if you’re not supposed
to do something, the best remedy that you can possibly have is to try to stuff the genie
back into the bottle. Generally speaking, that’s going to be of
limited use, but nonetheless in some cases, it may turn out to be valuable, and there
is a vast difference in my mind between the censorship of government among popular position,
as opposed to a rule which requires somebody who’s received something, and under a matter
of trust has a private right to ask them to control that trust. The modern view is a kind of game of cat and
mouse is you can sue the party who leaked the information, but you can’t put it back
into the bottle and sue the person who published it. And if the intermediate turns out to be of
limited means, financially or beyond the jurisdiction otherwise, then in effect what happens is
you’re out of luck. It seems to me under the model that I’ve put
forward, this is in fact a mistake. And similarly if somebody decides to eavesdrop,
it’s not only an invasion of privacy, but if they publish the information which they’re
not supposed to have, it’s exactly another way of compounding the particular wrong. So just to finish up in about one minute,
I guess is what I have, what happens here is if you start looking at these kinds of
arrangements, and then ask the very simple proposition, what is it about the change in
circumstances in modern society that upsets the kinds of relationships that I think follow
from this sort of timeless application of basic commonwealth principles, I’m very hard-pressed
to find anything of a substance of nature. I think it is clear the velocity of harm that
could be committed by the rapid transmission of information is greater now than it ever
was before. I don’t think that that changes the basic
framework. I do think, ironically, it makes the case
for injunctive relief in many cases stronger than it might have been in 1790, given the
size of the harm. It may in fact change the rules with respect
to the measure of damages given the scope of the particular differences. But by and large, these are incremental changes
that apply in every particular area. So I conclude on the note that I began. If you really like contemporary civilization
the way it was taught long ago at Columbia College, what you tend to do is resist the
temptation for novelty and support what I called in a paper I wrote some years ago The
Static Conception of the Common Law on the grounds that it’s as a first approximation
or more appropriate for what you want to do than a lot of the modern razzamatazz that
passes for great scholarship on the part of academics and occasionally present company
excluded, judges, thank you. Thank you, Professor. Now that we’ve gotten the big picture view
about some of these topics, we’re going to consider the tension between the regulatory
approach and the more flexible common law type of approach to resolving the societal
problems that we confronted. For that, we’re going to turn now to Professor
Manta. Thank you so much, and I want to thank the
Federalist Society and everybody at Columbia Law School for having me. It’s a great honor and I also feel like things
are coming full circle, because I was actually here in 2006 as a 3L attending, so it’s very
nice to be back in this capacity. I want to start out by talking about a framework
that I think will help us address some of these questions of whether we need new regulations
as some have proposed to deal with the rapidly accelerating world of spreading news. And that framework deals with the issue of
incommensurability. So we have different values, we have privacy,
and in some context we have national security and free speech, and at the end of the day,
those things are just words. And they’re apples and oranges. It’s very hard to have a conversation with
somebody about hey you want some more national security or do you want some more privacy? Especially in our value pluralistic society,
which you need no further evidence than the most recent election to recognize just how
pluralistic, it becomes very difficult to engage in dialogue. So let’s say you’re talking to somebody who
disagrees with you on these kinds of values and how much we should care about each. And you’re talking and talking and talking
over maybe even years, and you iron out the logical inconsistencies in each other’s arguments,
and at the end of the day you discover that you just have different moral assumptions,
and there are different values that you think should be front and center. And at that point, you can’t really talk anymore. You’re done. So what I propose in my framework, and I talk
more about this in a paper called Choosing Privacy, you can check it out on SSRN if you
want the details of all this, is that we should actually value, we should pick the value of
choice, of individual choice as the central one to measure. And that when we engage in cost-benefit analysis,
when we look at new regulations or existing regulations, that is what we should choose. Well, alright, why choice? It is essentially the most agnostic of all
values. It is the one that, yes, also relies on some
assumptions, but on ultimately the fewest moral assumptions, and that allows people
to sort of live and let live and coexist as best as possible. If we agree with that framework, we can now
take that and look at how that plays out and how that has played out historically in the
context of privacy versus other forms of speech. And it turns out that even though the world
has changed, and the new technologies have changed the landscape and kind of the bad
things that you might be able to do to somebody by spreading negative information about them,
it’s really been more of an up and down over the years than sort of a steady decline of
privacy. So if you think about the good old days when
everybody was living in the village and they couldn’t really move anywhere, they were sort
of stuck there, if something bad happened, if a person did something bad, they didn’t
have the choice to say, “Oh, I want the right to be forgotten.” Like we have in Europe now where you can ask
Google at some point to delete things about you. No, people remembered and they remembered
things for a really long time. And the right to privacy did not mean that
you had the right to be liked by everybody. And so we have to be careful to draw a distinction
there. And it’s only with modern urbanization that
things became more anonymous and that the landscape of choice changed. So there were certain choices that you had
in the village, or you could choose to engage in bad behavior, but then other people also
could choose to ostracize you as a result of your behavior. In the big city, that’s not so simple anymore. Now people might engage in some negative behaviors
that can stay hidden. They have greater privacy, but that means
other people have fewer choices. So when engaging them, engage with these people,
they don’t have information about them and might be misled about certain things. Now how does this play out in the context
of news gathering sites, news producing sites like Gawker, and I also want to mention information
gathering sites where the production of the news is really done by individuals and a site
is only taking the content but not adding its own writing or anything like that. The big case that has come up in the news
production business has been the one of the Hulk Hogan sex tape. Many of you may have heard about this case
where Gawker publicized and excerpted a 30-second excerpt from about a half hour sex tape where
Hulk Hogan was engaging in an extramarital affair with his best friend’s wife. This was allegedly done with the best friend’s
consent, and that’s also the person that did the filming, and then this was disclosed. Now this is one case where the newsworthiness
doctrine had to be applied, and the trial court ended up deciding that indeed Hulk Hogan
had been harmed, that this was not newsworthy, and awarded $140 million. Many experts and scholars think this actually
would not have actually held up on appeal, but we’re not gonna find out because, as with
so many things, the case is settled, and for a much lesser amount, but it’s still a lot
of money, and this really ended up tanking Gawker. So when we think about these kind of sites,
and again, what choices do people have and the choices that they have in producing news
and receiving that kind of news, the law that we currently have was already enough, even
though again it’s questionable if it was applied correctly, but it was already enough to tank
that site. So now imagine additional regulations and
what kind of impact they would have. So this is an example of a case that frankly
I think could have gone either way under the newsworthiness doctrine. On the one hand you can imagine a scenario
in which Hulk Hogan has sex with his wife at home, and that would clearly not be newsworthy. Or you can imagine a scenario where Hulk Hogan
has sex on Times Square with a prostitute, and there are images of that and that is fairly
clearly newsworthy. And this case lives somewhere in the middle
between those two, and reasonable minds might differ on whether that’s newsworthy or not. How might that be newsworthy beyond sort of
rubbernecking? Well, some people look up to Hulk Hogan and
their children look up to Hulk Hogan, and this is information, this might seem strange
to you, but if you grew up in the ’80s and ’90s, it wouldn’t seem
as strange. And so this is information that to some people
is actually valuable and is newsworthy. And it’s not so clear that we need additional,
again it’s not a right to not be decide, and so it’s not so clear additional regulations
would help here. And what would a regulation even look like? We could have a regulation that says, if you’re
a news site, you can never disclose sexually explicit materials. But as I said, this would come at a loss to
choice in the way that I just explained. And to take a more extreme case, you could
imagine, let’s say, a very conservative politician that has been speaking out against homosexual
rights getting caught having sex, having homosexual sex at a public airport, right, and that there’s
a sex tape of that, and that would clearly be newsworthy. Now do we wanna say that this kind of material
should be excluded altogether? So I think that we are trying to do is superimpose
rules where really only standards work. The cases are messy because they have to be
messy. The newsworthiness doctrine is messy and I’m
sure frustrating to many students because it really is the kind of situation where it
depends. And where there are a lot of costs eventually
on both sides, depending on how we rule. I wanna say a couple of words, also about
sites that aggregate information as opposed to producing it themselves. There you might think that the case should
be much clearer there, so you have websites like, right, where people can
say things including defamatory things about what their ex did to them. And they did horrible things and they may
have cheated and all that stuff. You might say, well this is horrible as far
as privacy is concerned, right? Like somebody might have a hard time defending
himself, et cetera, but we do have the ability to have people go to court against the original
person that made the statement. So we do have laws that address that and try
to provide incentives against it. And we have to think about, alright, what
does the world look like on the other side, right? So imagine, again, urban centers. People are dealing with people they don’t
necessarily know. We live in the age of Tinder. And so in that context, this might give some
people the ability to choose to not engage with certain kinds of individuals. So you wanna make regulations where aggregators
are punished more harshly, and just again, not just producers of the news, but aggregators
of information, there is also going to be a loss of choice. So, there are different ways that one might
come out on where there are likely to be more choices or what the quality of the choices
might be that we have on any one side. But I do want to emphasize that this is about
more than just scandal. This is about more than just people being
curious about the lives of others and wanting to be interested in that way. And so the way that I come out on this question
of regulations is that instead of trying to have any regulations, we should stick with
the common law as we’ve had so far and the framework we’ve had so far because it allows
us much more flexibility in dealing with these matters. So with that, I’m gonna let the next speaker
go, thank you. I have to say that having a little difficulty
conceiving of the framers, like Madison and Hamilton, discussing whether or not sex tapes
should be covered by the First Amendment. Can’t quite get that picture. But I am sure they were very familiar with
the term vulgar. Mr. Jaffer, you’ve considered the expanding
role of government surveillance, which as I suggest in my remarks goes hand-in-hand
with expanding private surveillance, too, and how the courts have tried to delineate,
enforce, limit all of this. So could you please share with us some of
your thoughts about that? Sure, first I was one of those people who
looked up to Hulk Hogan. Thanks for the invitation to speak. I’m gonna get a little more detailed about
national security surveillance, in particular. I wanna make three points. I just don’t have a sense of how controversial
these points are. Maybe they’re not controversial at all, but
they are, or maybe they are, we’ll find out. One is just that the government’s surveillance
authority, its surveillance authority has expanded dramatically over the last 20 years. The second point is that collectively, we
have only started to grapple with the implications of that surveillance for the freedoms of speech
and association in the press. And the third is that the courts, which you
might have expected to play a role, a significant role in setting out the proper scope and limits
of government surveillance authority, have not played that role. So let me make those three points, or just
talk a little about about those three points, and then I’ll end with a few quick observations
about the surveillance debate that we’re likely to have over the next 10 months, because of
the Foreign Intelligence Surveillance Amendments Act of 2008 is scheduled to sunset at the
end of this year. So first, just some important milestones about
relating to national security surveillance over the last 17 years. The first, the Patriot Act of 2001, passed
right in the weeks after the 9/11 attacks. One of the things that the Patriot Act did
was remove the individualized suspicion requirement from National Security Letter Authority. So national security letters, as you may or
may not know are instruments that executive branch agencies can use to demand the disclosure
of certain kinds of information, financial information, credit information, and any information
relating to internet activity, as well. And it used to be that there was an individualized
suspicion requirement which limited the opportunities for use of the authority. But Congress removed that requirement to replace
it with a relevance requirement, which meant that the FBI, for example, could use this
power to get information about anyone, so long as they believe that the information
was relevant to an ongoing investigation. And unsurprisingly, that had a pretty dramatic
effect on the frequency with which the FBI used that power. In the years before 9/11, they would serve
a handful of these national security letters every year. In recent years, it’s been tens of thousands
every year. In 2013, for example, it served, the FBI served
more than 14,000 national security letters for information about US persons, meaning
US citizens or residents, and tens of thousands more for people who were not US persons. So that’s a pretty, to me that seems like
a very large number. The theory of that surveillance, and this
is something that the Justice Department has said in Congressional testimony, is that you
can’t connect the dots so much you first collect the dots, which has a certain logic to it. But also has, I think, fairly obvious implications
for individual rights. It was on the basis of those same amendments,
those 2001 amendments, that the National Security Agency launched the call records program that
Edward Snowden disclosed in 2013. And as you all know, that program involved
the NSA keeping track, making a record, of every phone call made, or virtually every
phone call made on a domestic telephone network. Who picked up the phone, who’d they call,
how long they spoke for, when they spoke to them, all of that was recorded in a government
database, and various federal agencies could query the database initially without the involvement
of the judiciary. In 2005, the New York Times exposed the warrantless
wiretapping program that the Bush Administration had authorized. That program had involved the monitoring of
one end of domestic phone calls, one end international, one end domestic, where one party to the phone
call was suspected to be a foreign agent or a terrorist. And that program was regarded initially, I
think, as a scandal. But in 2008, Congress passed a law, called
the FISA Amendments Act, the same one I referenced earlier, which essentially ratified what the
Bush Administration had been doing, and in fact expanded the government’s authority,
the authority of the National Security Agency, in particular, to engage in surveillance of
international, again one end domestic communications. One of the things we learned from the Snowden
disclosures was those authorities that Congress granted in 2008 has been implemented in a
very broad way, perhaps unsurprisingly. I think it is unsurprising that when national
security agencies are given this kind of power, they feel the obligation to implement the
authorities in a broad way, because if there’s a terrorist attack and somebody says, “Why
didn’t you use all the authority we gave you?” Whatever their reasons are, even if they’re
good reasons, are gonna sound like not very good reasons at that particular moment. So the instinct, which is an understandable
one, is to use the power they’ve been granted. And the Snowden disclosures, I think, make
very clear that they’ve used at least the power that they were granted. The call records program, which I mentioned,
is one example. Under the FISA Amendments Act, the NSA has
said that it targeted 94,000 people in 2015. There’s a program called Upstream, which is
a subject of litigation now in various courts around the country. Upstream is a program under which the NSA
taps international telecommunications cables and scans the content of emails and other
electronic communications for keywords. So this is surveillance that implicates anybody
who communicates on those cables, and all of us communicate on those cables. It’s not a program that is limited, whose
effects are limited to targets, let alone targets with respect to whom the NSA or the
FBI has probable cause. I think that it’s mass surveillance under
any reasonable definition of that term. But whether you agree with that characterization
of it or not, I think it’s difficult to disagree with the proposition that the government surveillance
authority has expanded quite dramatically over the last 20 or so years. Now I think it’s difficult to assess the privacy
implications of that kind of surveillance, but it’s even more difficult to assess the
implications of that surveillance wit the freedoms of speech and association of the
press. I think that the implications, though, are
likely to be significant, even if they’re subtle or gradual. And that’s because a person who believes that
the government is listening to their phone calls is likely to communicate very differently,
or if the person believes that somebody is monitoring their activity on the internet,
they’re going to behave differently on the internet. I think some of you know somebody stood up
here at the beginning of this session and said, “You guys should know that your mics
are “connected to the live stream.” And I think that kind of comment has a chilling
effect. It’s intended sometimes to have a chilling
effect on your willingness to say certain things. Now, if the only chilling effect is on people’s
willingness to conspire to carry out terrorist attacks, then that would be one thing. But I think it would be naive to think that
the chilling effects are so limited. There are many things that people might worry
would be misconstrued by government agents listening in on their phone calls or reading
their emails. There are many things that people might find
embarrassing, that they won’t communicate if they know those things are being recorded. I think that, again, it’s difficult to measure
all of this. But to me it seems like common sense that
people are going to act differently if they believe, and believe justifiably, that government
agents are in some sense monitoring their communications. Maybe more consequential than the fact that
everything is collective, or seemingly everything is collective is that nothing is deleted. You know, it’s one thing to have to worry
that anything you do online will be tracked. It’s another thing to have to worry, as well,
that 20 years from now or 30 years from now, somebody is going to dig up from an old email
or an old communication of some kind something that can be used against you in who knows
what way. But I think it’s pretty clear now that in
some sense, every error you make, every decision you make, is going to stay with you. And I think we’re only beginning to think
about or consider how that is going to affect our behavior, our interactions with one another,
and our interactions with the government. There is some evidence, growing evidence that
government surveillance and surveillance more generally is having a chilling effect on some
forms of speech. There was a recent study that the Pan American
Center did, the writers’ organization found that one in six writers had curbed their content
out of fear of surveillance. The writers who responded to the survey were
not only, this is a quote, “Not only overwhelmingly worried “about government surveillance, but
engaging “in self-censorship as a result.” There’s another study published earlier this
year in the Berkeley Technology Law Journal, which found that Wikimedia pages that included
terms associated with national security were visited 20% less often in the months after
the first Snowden disclosures than the months before. The study’s author write that his findings
were consistent with quote, “a sharp immediate chilling effect, “and possibly with a lasting
impact on total page views.” There was also a study that, I wasn’t involved
in the study, but it was the ACLU and Human Rights Watch. The interviewers talked to journalists and
editors at various media organizations about the impact of government surveillance on their
reporting. And the journalists reported that government
surveillance and the related crackdown on unregulated contact between officials of the
press had combined to quote, “constrict the flow of information “concerning government
activity.” I think that Steve will probably talk more
about this in a few minutes. So I don’t claim that all that establishes
that there is a very significant chilling effect. I do think that there’s some evidence of it,
and I think it’s consistent with common sense that there will be that kind of chilling effect. That chilling effect affects important individual
rights, and because it does, one might expect that the courts would play a significant role
in considering the proper limits of the surveillance. I don’t think that they have played the role
that one would have expected them to play. And there are a few reasons for that, which
I will get to in one minute. I’m probably running out of time, right? But I wanna draw a distinction, quickly, between
two different kinds of cases. There are law enforcement cases, and I think
that the Supreme Court has tackled very important questions relating to the right to privacy,
in particular, and new technology. One case is of course the Jones case, in which
the court held that the installation of a GPS device on somebody’s car and the tracking
of that person’s location over a period of a month violated the Fourth Amendment where
it was carried out without a valid warrant. The other case, more recent, is the Riley
case in which the court held that the search incident to arrest doctrine doesn’t extend
to cell phones. So I think those are very important rulings
that relate to the, again, proper scope of government surveillance. But they don’t involve national security surveillance. National security surveillance, I think, has
been largely beyond the reach of at least the ordinary courts. And that’s for a few different reasons. One is secrecy. National security letters, for example, as
I mentioned, tens of thousands of them issued every year, each one of them comes accompanied
with a gag order that prevents the person who receives it from talking about it, from
even disclosing the fact that they received the letter. And that makes it difficult to seek legal
advice, it makes it difficult to sue. Secrecy surrounding the use of these kinds
of surveillance authorities also makes it difficult for plaintiffs to establish standing. I was involved in a case, and it went to the
Supreme Court in 2012, called Clapper v. Amnesty. We represented plaintiffs who, the plaintiffs
were challenging the constitutionality of the FISA Amendments Act of 2008. Their argument was that their communications
fell within the scope of the law and that the law was likely to be used to monitor their
communications. And the court said, five to four, that they
hadn’t established standing because they hadn’t established a certainty that their communications
would be monitored. You know, whatever you think of that decision,
I think one result is that very few plaintiffs are going to have the ability to challenge
the constitutionality of government surveillance because very few people are going to be in
a position of being able to show that their communications were, as a matter of certainty,
intercepted under these national security authorities. You know, the related reason why these programs
have been kept from the courts is that there is a kind of incentive structure under which
the intermediaries who hold this information, so a lot of this information is held by AT&T
or Verizon or the technology companies. They don’t always have an interest in protecting
the rights of or certainly going to court to protect the rights of their users, especially
when the users don’t know that their privacy or their rights, more generally, are implicated,
because of the secrecy surrounding the surveillance, right. So when a national security letter is served
on AT&T, for example, the subject of the national security letter doesn’t know about the national
security letter, and so they can’t go to court to challenge it. AT&T may not see an interest in challenging
the constitutionality of the demand, especially because AT&T is a heavily regulated company. It has an interest in staying on the good
side of the regulators. So those incentives don’t really create an
environment in which litigation naturally occurs. There is, and maybe this is sort of the final
point I’ll make, there is a court, of course, that does review the lawfulness of this national
security surveillance. It’s the Foreign Intelligence Surveillance
Court. That’s a court that meets in secret, generally
lets only the government appear before it, and doesn’t ordinarily publish its decisions. Now, it has existed in that way since 1978,
but it’s important to recognize that its role in that was very different from the role it
played in 1978. In 1978 was the court was doing was considering
applications for surveillance of individuals, and it would consider whether the government
had met its probable cause burden. So it was analogous to what courts do in ordinary
criminal cases. More recently, since 2008, the court, the
FISA court, has been reviewing the validity of broad programs of surveillance, like the
call records program I mentioned earlier, or the Upstream program, not considering the
legitimacy of any specific target, but at a very broad level considering the lawfulness
of these programs. And I think that the argument for secrecy
there is much weaker than it is in the context of a specific defendant where, to disclose
the existence of the case, is to tip off somebody who was planning, perhaps, a terrorist attack. So, let me just say, finally, that I think
there are a few reasons to think that the surveillance debate we are going to have over
the next 10 months may be different than the ones we’ve had over the last 20 years. One reason has to do with transparency. Since the Snowden disclosures, the government
has become much more transparent about national security surveillance. Initially it did this because Snowden had
disclosed some information, and in order to respond to Snowden’s disclosures, the government
felt that other information would have to be released. But I think that has created a kind of muscle
memory, and now the National Security Agency is accustomed to releasing information in
a way that it certainly wasn’t five years ago. Now, we have a new administration, perhaps
that will change, but I think that the agency, the NSA, in particular, has different habits
now than it did five years ago. A second reason why this debate may be different
is that the courts are engaged in a slightly different way now than they were five years
ago, and that is almost entirely because of the Snowden disclosures. The Snowden disclosures forced, again, the
government to release certain information, and once that information was released, plaintiffs
were able to go into court to challenge these national security policies in a way that they
weren’t able to when all of this was secret. And those cases may ultimately influence the
Congressional debate. And then finally, I think that it’s hard to,
it’s worth asking to what extent the debates we had over the last 20 years, or since 9/11,
were affected by the trust that large numbers of Americans had in the government. And I certainly think over the last eight
years, large numbers of Americans were willing to invest powers in the presidency, because
they trusted the President. Now those powers have outlasted the president
who those Americans trusted. We’ll see whether Americans are willing to
extend the same deference to this administration as they were to the last administration. And we’ll see whether the courts are willing
to extend the same deference to this administration as they were to the last administration. But that, too, may have a significant impact
on the shape of the surveillance debate we’re about to have, thank you. Thank you. Dean Coll, can you tell us how you view some
of these privacy press concerns from the perspective of the newsroom? Thank you, thank you it’s an honor to be here. I do think my remarks constitute a kind of
annex to the panel, not, I don’t speak the same vernacular. I’m a working reporter as well as the Dean
of Journalism School. As I was listening, I sort of thought from
your perspective my remarks might be like someone coming up last and speaking to you
in French. My goal is to give you a feel for what these
issues are like in a working newsroom, a professional newsroom where I’ve spent most of my life. We take a lot of advice from lawyers. One of the first lessons you teach any reporter
is you should know when you need to call a lawyer. That’s a good way to stay employed. And a lot of newsrooms’ engagement with privacy,
per se, as I understand it, has been pretty stable during my working life. So that involves issues like how you deal
with reporting on minors, how you think about your role as a reporter in a public space,
what constitutes trespassing for you as a journalist, how do you recognize when you’re
in danger of trespassing. And then more broadly in the Sullivan regime,
the distinction between private and public figures, how that implicates your published
work and the decision-making that you and your editors will go through as you get ready
to publish. For us, a trial like Hulk Hogan, is one of
those cases where we count on people like Professor Manta to articulate why that is
a newsworthy decision. We would prefer to be in the court around
cases, obviously, that have a more direct implicit tie to the public interest, even
if that’s not really what the law is set up to distinguish around. So we’re much more interested in trying to
implicitly defend our position under the First Amendment and our specific privileges under
state law, and our involving often diminishing privileges as professionals under the First
Amendment by staying close to matters that most would recognize as touching on the public
interest. So I think all of that regime to use has felt
pretty stable. But there’s a couple of things that have really
changed in the last five or 10 years. And they’ve changed the experience of working
reporters. They’ve changed the issues that we’re anxious
about. And they may, some of them clearly touch on
the law. But others touch really more on professional
practice, ethical norms, and debates within journalism that are actually quite active
now. We had a conference today at the school that
was all about covering this administration with lots of reporters and editors in conversation
over the full day. And some of the issues I’m gonna mention now,
like the big data leaks and hacks, were very much a part of that conversation. And its very early stages in the search for
new professional norms. In fact one of the panels was about someone
proposing a new norm for how you interrogate massive data dumps of unknown provenance and
decide whether or not to make journalistic use out of them. I don’t think it was a persuasive offer, but
it got the conversation going, and it signals that there’s a new set of questions that journalists
are reckoning with. So, I remember when the first WikiLeaks big
dump of US information came out, that was maybe, what, Jameel, 2008, 2009? I remember the state department cables ran
through early 2009, so not too long after that. And Bill Keller, who had been the editor of
the New York Times wrote a column or said something in public around the idea that,
“Well, I don’t think it’s “gonna happen very often, so as an ethical problem, “that’s probably
a one-off. “I mean who’s gonna be able to really walk
out “with this kind of thumb drive full “of massive data information?” So journalists, we have a poor record of forecasting,
I think we said again and again. But coming to terms with these big data technology-enabled
thumb drive-enabled disclosures has really been a very slowly recognized problem in journalism
for decision-makers. I think initially there was a kind of sense,
well we can take shelter in jurisprudence that protects the use of these materials,
no matter where they came from, and let’s just review them the way we review any document
to determine whether or not there are privacy concerns that need to be shielded and determine
whether they’re matters of public interest that can be reported upon. The documents themselves may be only the beginning
of the reporting process, just a trigger to go out into the world and figure out things
that you wouldn’t otherwise have had stimulation to report on, or they may be disclosures in
and of themselves that are clearly in the public interest and we can protect privacy
while we go through our filtering decision-making in the newsroom. So that kind of prevailed through the first
set of disclosures, which involve often government materials, certainly in the case of the first
WikiLeaks, relatively low levels of classification, comparatively low levels of sensitivity compared
to the Snowden disclosures. Then you have the Snowden episode, which raised
the challenge of journalism. He said that had decided to use collaboration
with journalists because he didn’t want himself to make the decisions about what matters were
in the public interest, what were too sensitive to publish, and so he decided to ask the reporters
like Bart Gellman to go through that process. That created a whole nother set of anxieties
and discussions about how to manage these kinds of disclosures, especially since Mr.
Snowden was a fugitive from the United States at the time, and still is. So, then you get the Sony hack. And I think that was about the first time,
at least in my experience in professional newsrooms that I’ve heard editors and reporters
say, “Wait a second, this is a departure. “We don’t really know where it came from.” Unnamed government officials quoting intelligence
assessments say that it came from North Korea, that North Korea was angry about a film. The disclosures in the emails don’t pertain
to governmental decision-making by and large. They pertain to the decision-making of filmmakers,
a lot of gossip about who was borrowing whose private jet, and enormous unfiltered amounts
of private medical information, private correspondence about family matters. And while editors went through that material
and decided that there were stories in the public interest about cultural kind of control
and decision-making and how Hollywood really works and who has power, and gender, and various
other subjects, it was an uncomfortable exercise that started this conversation. And then comes 2016 when about halfway through
the disclosure of these DNC and other hacked emails comes the assessment that this is actually
an active intelligence operation by the Russian government. So now the question of provenance enters into
this discourse. And it’s really only after the election that
journalists have really started to wrestle with what are the departures from past ethical
norms that should be considered, or that may be required to address decision-making in
circumstance like this. And I won’t detain you with all of the yes
buts that go into this, but just even in the realm of you’re only responsible for your
own decisions, irregardless of whether the material is out there or can get out there
by other means, even in just that narrow realm, which doesn’t necessarily change what the
public would have access to, this conversation is very immature. And it’s all over the map, and it’s very interesting
to be around, actually. One of the disclosures in the DNC emails,
for example, involved the private medical condition of an individual employee who had
wrestled with deep depression and attempted suicide. Now, someone may have put that into the public
domain. But as a reporter who’s making calls and working
on this material, I mean, how do you have an ethical approach to separating out and
defining privacy around that kind of data. The same thing is true in the Sony emails. You know, by and large there weren’t catastrophic
decisions made. Whoever decided to dump this into the public
realm is responsible for that decision, but it’s not a frontier that reporters and editors
are used to wrestling with in real time, especially with the speed of publishing in the digital
age. So I’ll just read you something that I wrote
down from this proffer today at our conference about what is the, so what’s the new professional
norm? So this professor at the University of Kansas
did a lot of reporting and talking to other journalists about this and said, “It is morally
just to publish “stolen information if the material is “in the public interest and truthful,
“not available any other way, “and the benefit of publishing it outweighs the harm.” Alright, so that’s the kind of level of beginning
that you can hear in newsrooms around the country. And I don’t think it was considered persuasive,
but as I say, it’s the conversation that you wouldn’t have heard a year ago at all. But the second point I wanted to make about
the error of big data leaks is the one that Jameel touched on and mentioned, which is
reporting in the age of surveillance, pervasive surveillance. There’s two elements to this that I just thought
I’d mention because they’re very alive in the work of professional reporters, my own
and others. One is the practical source management obligations
that reporters manage when they enter into confidentiality agreements with sources. We all saw the story the other day when Sean
Spicer called the staff into the press room and asked them to dump their phones. I don’t know whether he pressed on their signal
apps to see whether there were conversations that were still there. But the combination of encryption and surveillance
has really scrambled just hygiene questions for professional reporters. I mean, it used to be that it was fairly clear
in a newsroom how a professional reporter should manage confidential relationships and
promises that they’ve made to protect sources. It was one of the things that the lawyers
would come down and brief on from time to time because, for example, they would say
if you go in front of a judge and assert a state law privilege to protect your confidential
source, and the judge discovers that you went to the water cooler and gossiped with your
friends or went out to a bar and talked about who your great source was, the judge is likely
to say that doesn’t constitute professionalism, you’ve lost your privilege through that kind
of sloppiness. So the lawyers were always telling us if you
want to defend your privilege or assert one, you better have strong hygiene practices. And so that became part of the norms of the
newsroom. If you had a confidential source realize that
the relationship was making its way into the paper, you would have a very careful cone
around that disclosure. It might only be one or two people in the
newsroom who would know the details. And there would be lots of record management
and phone call management, metadata management around maintaining that relationship as successfully
as possible. And you have two obligations. One is to the advice that you better defend
your privilege and the other is to your source, which ought to be your deepest concern. So, what constitutes hygiene now in the age
of pervasive surveillance? There have been, during the Obama Administration,
with its much noted surge of prosecutions of government sources of journalist leakers,
whistleblowers, a number of those cases were made off of surveillance data without even
touching subpoenas to journalists, one of them involving a former CIA officer named
John Kiriakou. Essentially we don’t know all the details
and the Reporters Committee has just tried to obtain more records about this. But from the circumstantial evidence and the
history of the case, it looks like the Justice Department or the FBI initiated an intelligence
investigation at Guantanamo, fearful that there had been a breach of security among
prisoners at the facility. In the course of that investigation, they
collected a lot of email. Eventually they decided that their fears were
unwarranted and that the material that had triggered the intelligence investigation had
an innocent explanation. But while they collected all of the email
associated with the intelligence investigation, they discovered correspondence between the
officer and journalists about unrelated matters. And then by some mechanism of the Patriot
Act, that I don’t fully understand and that isn’t always very transparent, they converted
that email evidence into criminal evidence and prosecuted the leaker, without even subpoenaing
any of the reporters who had been in contact with him. So as a reporter, if you’re trying to protect
a source of that character, you have to be aware that all of your email correspondence,
all of your metadata is potentially putting your, potentially breaching your pledge of
confidentiality, and you have a duty of hygiene and best practice that you now have to rethink. So, for the first time in my professional
life, you have people coming into newsrooms training reporters on digital security. It’s a very difficult thing to teach and assess
in the context of journalism practice, ’cause you’re moving fast, you’re constantly communicating,
you’re on deadline. It’s the best training that I’ve seen basically
starts with a threat assessment. What are you worried about, what are you vulnerable
for? Are you trying to maintain a confidential
source relationship? Alright, well then let’s talk about how to
do that. Are you traveling overseas to a country with
centralized surveillance that’s basically going to eat your laptop and pull up everything
in it out, including all of the records you may have for contacts and confidential sources? Then you have to behave in a different way. I mean, I’ve basically traveled to sensitive
countries now with a clean computer. It’s expensive, but it’s the best advice I
have, which is just to leave my stuff at home. So, it’s a whole new set of practices that
involve the kind of core obligations of journalism. Then, the final thing I would say, maybe more
touches on where you live, which is in jurisprudence of these leak cases. During the Obama Administration, there was
one case involving a Fox News reporter, and another case involving the Associated Press
where memoranda, not I guess in the end court filings, but memoranda generated around subpoenas
by the holder Justice Department. I came as close as I’ve ever seen in my working
life to criminalizing the receipt of classified information by a journalist. When the administration departed from 25 years
of Attorney General guidelines about subpoena notification in the AP case, that created
an uproar and the Attorney General tried to reset his commitments to these guidelines
and did so by the end of his administration. But the kind of arguments and the proposition
of criminalizing the receiving side of journalist encounters with government sources is now,
I think, in motion. And I’m expecting that during this administration,
that there will be prosecutions of this kind, in one setting or another. I wouldn’t be, at this point remotely surprised. Then we’ll turn to Jameel and others to get
us out of jail. But that to me is the final consequence of
where this surveillance day ends up. It’s really located in national security reporting,
primarily. But I think it is something entirely new in
my 35-plus years of professional experience. So I’ll leave it there, thank you. Thank you. Since we started late, my understanding is
that we do have time to go over a little bit, and the discussion prompted at least two questions
in my mind that neatly each implicates at least two of our panelists. So let me start with one for Professor Manta
and Dean Coll. If I understood you correctly, Professor Manta,
you think that when there are questions that implicate claimed invasions of privacy, countered
by claims of freedom of the press because it’s a matter of public interest, that the
question of whether something is indeed of public interest ought to develop in the common
law tradition, that it ought to be by consent. Did I understand you correctly? Yes, so I just wanna make sure I understood that. The question I want to ask both you and Dean
Coll is that suggests that then the decision would be made after the fact after the action
was taken. And I wonder whether the press really feels
comfortable operating that way with its decisions then submitted after the fact to a fact finder
as to whether this was indeed a matter of public interest, or whether, when we’re talking
about a constitutional right, you need some understanding of what can be done in advance. You have proposed the idea, Professor, so
maybe you can tell us how you see this working out. And then Dean, if you can comment on it. Thank you, so yeah, this is why I touched
very briefly on the issue of rules versus standards because that is the eternal problem
that we have in these kinds of situations. I think that pretty much whatever is either
going to be fairly extreme, and it’s going to have to exclude large matters or be overinclusive
in other ways because we could also go the other way. Or it will ultimately devolve into the same
problems that we’re already dealing with. So if the regulation tries to be nuance, then
it will require nuance in interpretation, then we’re back to the same difficulties that
we’re already facing in common law. And I think what’s going to end up happening
and what has been happening is that reporters and others can confirm or deny this, look
at alright, what is the law on the books, what is the common law or other laws, and
then they think of a little bit of a buffer zone around that and they try to figure out
just how far can we push this. I mean, we’re maybe we’re going to try to
be just a little bit more prudent than how far we think we can actually go. So wherever the law is going to end up being,
as a journalist one would still have to be, and as an intermediary and whatnot, one would
still have to concerned as to what the precise interpretation is going to be. And so we have to be aware of that, that when
we support or don’t support the way that a court comes out, that we are aware that the
journalists are going to pull back from that a little bit, and that news entities, again
we saw this in the Gawker example, are going to have to be aware of the costs of defending
lawsuits, even when it’s lawsuits that maybe are not really going to be winning ones. So I think that’s going to create all kinds
of boundaries around that. To the extent I understood Professor Manta’s
framework when she was speaking, I found it quite a comfortable one and I thought it is
the way the law operates in newsrooms now. The common law framework does seem inevitable,
even when you’re talking about something that’s on the books like a state shield law that
inevitably it becomes subject of circumstance and interpretation. You end up getting best judgment advice. And the effect is what you say. Generally, when you come up to the threshold
of a risky decision, everybody’s in the room. If it’s a healthy organization, the editor
makes the final decision. And I would say, in general, unless it is
an urgent matter of public interest or something deep at the heart of the mission, the decision
will be just 7/8 of what it is that it looks like you could defend. And that’s okay. I mean, 99% of the times, we have a robust
press in this country. I mean, people are not cowering. The problem is somewhat of a loss of professional
confidence, professional resources. But where core values are at issue, where
you feel that the reporting is at the heart of constitutional design, this is our function,
then you see it again and again. News organizations are willing to go all in
around that decision. So I find that the flexibility of what I understand
you to be defending, proposing, appropriate for the actual circumstances of this kind
of decision-making, ’cause there just are not any bright lines around most of the significant
dilemmas. I disagree on just about everything that’s
being said on this. But let me explain why I do. If you recall, I said essentially obligations
of confidentiality, if you have something that you’re not allowed to use, you don’t
use it. And that applies to the press like it does
to everybody else. So to me, all this wonderful stuff about judgment
and discretion on how you talk about it is perfectly appropriate if you find information
in the public domain about somebody. The famous case of Cox v. Cohn is an illustration
of that, in which there is now public record of somebody that was a rape victim and you
can decide in good journalistic sense whether or not to keep it down. And everything that the dean said I think
is going to be appropriate in this case. I think somebody tried to shut him down from
publishing it, under the current laws you can’t do that. And I think that’s probably the correct answer. On the other hand, if you know the information
is stolen or if you’re stealing it yourself, I think jail is too kind. Somebody like Snowden, I mean the idea that
this man, as a low-level of employee can determine national policy as to what is or is not released,
and then can justify himself by turning it over to a bunch of rogue reporters to decide
which in the public interest is or is not there, is utterly and completely unacceptable. The rule is, if the press gets stuff which
it knows is stolen, it doesn’t read it. It essentially returns them. Now this, of course, has one very serious
downside, and one has to talk about the institutional issue, which is, just as I don’t trust you,
I’m not really keen on trusting the government, because there is a huge risk of overclassification
of the information that ought to go out by these people. So what happens is, there’s been too little
talk here of institutions and too much talk about entitlement. Now I think the correct situation is somebody
like Snowden wants to do this, he can write the following editorial, “In my work, it seems
to me that government surveillance “is more extensive than it ought to be.” And then somebody can have a Congressional
committee or perhaps some standing body which can decide A, is this true, and B, how you
work to reform this. And C, you can actually demand under some
circumstances the declassification of doctrines that are already classified. But the thought that you’re going to delegate
those decisions dealing with national security, the life, and death of other individuals to
journalists seems to me to be wrong. So you ask me what the legal rule is, if you
know it’s stolen, you can’t use it, you can’t receive it, you can’t do anything with it. It is, in fact, the correct rule. And at that particular poiundnt, the riposte is
having turned all this stuff back and not released it, and not use it and not cooperated
with it, then you have to have the public inquire as to whether or not declassification
is appropriate. I think if you’re going to try and have these
delegates expose judgments on these things, it’s an open invitation for disaster. I once wrote a book called Simple Rules for
a Complex World and this is a case in which those seem to me appropriate, and perfectly
consistent with the common law tradition, utterly inconsistent with the constitutional
tradition, so much worse for the constitutional tradition. Well, my next question is to you, Mr. Jaffers,
so let me give you an opportunity to speak to my question, as well as that. One of the points you made in speaking was
that it had perhaps been the case, you hypothesized, that over the last eight years, courts may
have trusted the executive more than they will, you were projecting in the next eight
years. And I was wondering whether you are putting
that forward as just a fact of human nature or whether you think that in fact should inform
judicial decision-making. Because of course, when judges make a decision
about how the executive acted in one circumstance, its ruling is going to affect future executives
making decisions, so I wasn’t quite sure how you intended that. So you can perhaps answer that and anything
else you wanna comment on. Sure, so you know, whenever I would argue
on of these national security cases challenging the scope of the government’s authority, one
of my strategies, and this was, you know, a common strategy amongst civil liberties
lawyers and human rights lawyers, was to spin out the ways in which the authority could
be abused. Sometimes that worked and sometimes it didn’t. I think that judges do consider the possibility
of abuse in the future. I think that the possibility of abuse in the
future can sometimes seem remote or speculative in a way. I’m not sure how many people expected the
developments that have taken place over the last few months, and those developments, I
think, have changed the way that people see, a lot of people see executive power. When we argued the drone cases, the targeted
killing cases, the main argument we made was that you may think that this guy who’s been
targeted by the government right now is a bad guy, but you don’t know who the next administration
is going to target. I think that the specifics of the case before
the court had so much weight that in my humble opinion, the courts didn’t always put sufficient
or give sufficient consideration to the possibility that that power would be used in different
ways in the future. That may just be a fact of human nature. People deal with the concrete facts that are
before them, and considerations of abuse 10 or 20 years from now, those will always seem
remote. And people will trust that judges at that
point will act differently. So maybe it’s inevitable. But I think it is a fact that the courts were
highly influenced by the specifics of the cases before them, and whether that’s a good
thing or not. So just– Well, judges are always deciding the cases
before them. That’s right, but they’re deciding the case
before them, but they’re deciding, in deciding the case before them, they are often sketching
out the authority of the government or weighing in on the authority of the government. Mr. Epstein, you wanted to comment on this
one, too. It’s no surprise that, look– I still want to respond to your other point. Okay, well that’s true. I’ll respond to this one and then you should
go after the other one, and go after. I’m all in favor of it. Look, I think as a matter of jurisprudence,
it’s extraordinarily dangerous to say that the rules that I apply to one administration
are different from those that are applied to another. I am in the rare position of having very little
respect for the current or the past administration. But that doesn’t seem to me to matter one
way or another. And in fact, one of the reasons why the rule
that I mentioned, if you get stolen information you return it and you don’t use it, is it’s
invariant to administrations, that it’s much more easy to administer. The other point on the drones, let me explain
I think much more concretely. There were two major issues on this question,
one of which I think was a loser, the other was a winner. The loser was well, you can’t bomb citizens
when they’re overseas engaged in acts of treason against the United States. Of course, you have to give them a trial,
to which I think the right answer is we’ve got you, guy. You come out and submit to the jurisdiction,
or we will treat you as though you are in fact somebody who is an enemy of the state
to be treated like any enemy combatant. And I think that’s the powerful argument. But the other one on these administrations
were costly. They used to say we had surgical precision. And what they did was they had some guy who
was a known terrorist sitting at table with eight people. And their calculation was if eight people
sitting at the table with one terrorist, they’re all terrorists. And it turns out they weren’t. And so at that point, the serious overbreadth
problem with respect to the use of drones became much more important. And as that information became much more public,
the support for the program, it seemed to be collapsed. And what you had to do was again try to narrow
its scope, because the excess problem is something which you always have to face. It’s a political judgment, I think to some
extent. But boy oh boy if you’re being 10 to one on
the wrong side, and you could wait a day or so to do something else, and there’s no imminent
catastrophe, the administration will lose support and that’s what happened. Now you, sir. I just wanna make one point. I feel like I’m about to be struck by lightning
for saying this, but I think I disagree with Richard. On the point of the stolen property, actually
let’s go there because Richard and I, we both love property law. When we’re talking about the government and
Edward Snowden stealing the information, well that was sort of some of it, at least, and
we have to differentiate between the different types of pieces of information that Snowden
released. There are different judgments one can make
about them. But some of those pieces, arguably, were stolen
property in the first place. Whether one agrees with that or not, as far
as the things are concerned that defies the court blessed, fine. But the government hacked Google. They hacked Google and they took information
that was stolen information. But you’re not suggesting that the thief who
steals from the thief is. She is and that’s frightening. No, in many contexts we treat stolen property
differently, right, and then unlawful property differently. And so, maybe I would like the truth to be
just a little less harsh on Snowden on that point. But I think I’m not going to go anywhere here. But we don’t have much time, so I don’t want
us to just evolve into a Snowden case. No, I promised Mr. Jaffer that he could respond
to– I think I just have a much more mundane question
about your proposal. So, you know, your proposal, if your rule
had been in place, there are so many things we wouldn’t have known over the last 20 years,
right. We wouldn’t have known about Abu Ghraib and
we wouldn’t have known about the rendition program. If the Washington Post had said, “This is
stolen information “these people are giving to us, we’re not gonna publish it,” then the
courts wouldn’t have had the opportunity to weigh on the constitutionality of the call
records program which they found unlawful. Well, the question is, do you really think
that a program that comprehensive, you’re dealing with only stolen information? I don’t believe that you have that problem
because one of the other questions you have to ask is what you could cover by independent
information. Let me give you an illustration. Nick Louis of the New York Times at one time
did a work for the Constitution Commission on unlawful detention, and there was a condition
of which I was a member looking at this stuff. This guy essentially did a much better job
with no inside information than did the Feinstein Committee with all the inside information
that it had. And if you’ll look at the two reports, you
can see which of those two turns out to be the better document. So I think, in effect, the press in many of
these cases can go around it. I also think, and this is extremely important,
the other half of my proposal is that once you decide that people like Snowden, of all
of them, cannot release the information, you then have to develop internal institutions
which will essentially check and vet the information. This is very similar to the fact that when
you keep enemy combatants, habeas corpus is not an adequate remedy, ’cause it’s once and
for all thing. You have to have internal institutional arrangements
to update the investigations that you’re doing, and then do it through channels. But the idea that Snowden is the man to make
these decisions, how many people have been murdered in consequence of it, I think it’s
a very high price to pay. Well, I think we’re coming close to the end
of our time, but I did say that we would take a few questions. Is that okay, do we have time, sir? My name is Joe Lenny. Nice and loud if you– You gotta get the green light on. Push the button with your tongue. Just, you know, speak up loud. [Joe] Alright, can you all hear me? Alright, so way back at the beginning of this
panel, Dr. Epstein, you had mentioned about a reasonable expectation of privacy. I was thinking about the legality of recording
conversations and how some states you don’t need consent of an opposing party to record
those conversations. If a federal privacy law were passed by Congress
that would nullify any of this ability to record conversations, for instance, if, said
even with consent you’re not allowed to record conversation, would this override any state
laws? Given federalism, yeah, but do you think some
states– Mentioned the supremacy clause, go ahead. I mean, the supremacy clause is a nightmare
issue, and I would think on this question it would. But I think the first you’d want to do is
to do this as a matter of contract law. And this is the way that I think it would
be structured. A, if I enter into a conversation with you,
the general presumption is that neither of us is recording it. And then B, if one of the parties wants to
record it, then it discloses it to the other so that it can take the like privilege. The last thing you want is this to be asymmetrical,
where I can record it, use it selectively, or destroy it if I don’t like it, and leave
you helpless. And so if you did that kind of a routine,
I think it’s a better solution than any public censor. But in the federal courts, the rule is that
the consent of one party is enough to make the recording legal. Well, we have to… We have to revisit that, well then, not tonight,
though. [Man] One, two, can you hear me, sorry? Alright, I’ll say it loud. Alright, so we have what I consider to be
the thin-skinned media having a complete meltdown about President Trump right now and not calling
on CNN– Don’t sugarcoat it, tell us how you really
feel. Well I mean, I’ve not been known to do that,
which is why I love Professor Epstein. But, so you have, I’ve heard, and I trust
in the past eight years, and then suddenly in the last four months, you know, we’re supposed
to, the media is having a meltdown. Is President Trump violating his oath of office
and the Constitution by not calling on or getting a seat to the New York Times, Washington
Post, and CNN? Or is he trying to undelicately, surgically
deal with the terrible fake news? Because the media is acting like their entire
popularity’s only been going down since September the 6th. I’m gonna treat that as an observation, not
a question. [Man] Is there an issue with the law? But I think that our timing is coming to a
close. There are two points, though, that I do wanna
make about privacy. And I trust the panel won’t think I overstate
this. First of all, in dealing with national security
issues, there are a host of issues that Mr. Jaffer touched on only briefly, but I just
wanna comment on one about secret courts and secret warrants. You should be mindful that most warrants issued
in this country are issued by courts in camera, without both sides there. Now, how they are litigated after the fact,
or what disclosure obligations have to be made to the parties affected may differ very
much from nation security warrants. But you should not think that the only warrants
that issue without an adversarial proceeding are national security warrants. Most warrants issue that way. The other thing I wanted to observe is that
the Supreme Court’s privacy jurisprudence in the criminal area, criminal law enforcement
area, bears your attention because they have not yet come up with an explanation in cases
like Jones and other cases for exactly why they are reaching the conclusion that it’s
unreasonable. And why I say this is because a cynic might
view it as the problem is that it can be done too effectively now through modern technology
because it was always the understanding that if you put a police officer in an unmarked
car and he traveled around all day with someone you could surveil them. There was no need for a warrant or anything
to do that. But you can’t put the GPS tracking device
on. And it sometimes might seem that that’s because
it’s gonna be, you know, there’s no chance of losing the guy. The police office might lose the guy. So I don’t think the Fourth Amendment jurisprudence
can be reduced simply too well, you’ve gotta give them a sporting chance. You have the trespass issue. So I think there’s more to come in this whole
area of criminal protections, which have a privacy implication, as well as the other
areas. I wanna thank everybody on the panel. I want to thank all of you, and of course
our hosts. Thank you. Hi, everyone. Before the reception, we have an award to
present. The Columbia Law School chapter of the Federalist
Society is honored to present Judge Richard Sullivan with our Columbia Law Alexander Hamilton
Award this year. Judge Sullivan joins former recipients of
the award Judge Michael McAsey and Chief Judge Preska as an individual who has provided support
and/or engagement with Columbia Law School, and the Federalist Society Chapter here this
year, in addition to teaching as an adjunct professor here at Columbia. He has also participated in a number of our
Federalist Society events, including the panel tomorrow. And we are extremely grateful for his invaluable
contribution to our community. So thank you so much, Judge Sullivan. Here you go, thank you. Well thank you. What I’ve learned from the events of the last
week is that one should always wait a few moments before you accept an award. So, they said I could have microphone for
a few minutes, and so this is the only way you can silence Richard Epstein, so I’m gonna
take advantage. I will say this is a great honor. I teach here, so that’s part of the honor. I also, I will tell you I came to my first
student symposium sponsored by the Federalist Society 30 years ago. I think you were there, actually, you spoke. 30 years ago, after my first year in law school. And so this brings back a lot of memories. I will say this is a great event. It’s great to see so many people here. The panels are just stocked with talents,
and so I’m excited to see these panels, as I’m sure you are. One of the things I have noticed over the
years at Federalist Society events is that they tend to feature appellate types and professor
types. The district courts are not terribly represented
at these things, and so I’ve often wondered why. I was at an event recently, and a judge who
was on a court of appeals explained to the audience that we were having this conversation
with. He said, “Well, you’re more of a retail job,”
which is what he said. And I thought that was an interesting comment. And I don’t think that he was suggesting that
I am any sort of the Walmart of judging. I think what he meant, I mean I think he would
acknowledge that district courts do, of course, decide important issues of law. And in fact, we do get the first crack at
all the really interesting legal issues. But I think he’s right that we rarely get
the last word. And our primary function really is to interact
with the public and the people we serve through the courts. And if that’s retail, then I’m okay with it. The fact is that we really do deal with litigants. We deal with the parties and the lawyers,
and hearings and conferences and arguments. We pour water for witnesses as we listen to
them testify. In criminal matters, we sentence an individual,
look him in the eye and explain it to him and to his family and to the victims and their
families why this sentence that might involve years or even decades is just and appropriate
and right under the law. That’s difficult at times, but it’s noble
and it’s inspiring, and so I have to say it’s a good job. And one of the other things we do in interacting
with the public is that we preside over jury selection. And it’s important to remember that the jury,
they’re our partners in the law. They’re our partners in the judicial branch. Judges are, in many ways, immune from the
public political process, once we’re appointed and confirmed. But the jury is there, the ultimate check
on judicial abuse and executive abuse, and that is the most democratic of institutions. And so, we get to ask jurors questions to
make sure that they’re free from bias and fair and impartial. And also we ask questions to determine whether
or how the lawyers ought to exercise peremptory challenges. And so we ask questions like what are you
reading, what is your primary news source? What do you do for a living? What do you do in your spare time? What do you watch on TV? And one question that I ask frequently is
tell me someone you admire, which is a very interesting question. It provides some insights as to who this person
is. I don’t know whether it helps you pick a good
jury or not, but it’s an interesting question. And you get all manner of answers to it. And at the end of a case, I invariably go
back and talk to the jurors, to thank them for their service, ’cause it really is service,
and once in a while they’ll as me, “Well Judge, how would you “have answered that question? “What would your response be, who do you admire?” And I invariably say Hulk Hogan. No, no I don’t, no I don’t. I don’t. I say Alexander Hamilton. And typically, no it’s the truth, I say Alexander
Hamilton. Typically a juror will say, “I have the soundtrack.” And the reality is, if you don’t know it,
if you’re living under a rock, Hamilton is a star these days, he’s on Broadway. I have not seen it. I am a federal judge, I cannot afford the
ticket price. But my fascination with Hamilton goes way
back. You see, I grew up on Long Island in a suburban
town that was built after the Second World War in the building boom of that era. And it was farmland that had been plowed over
and they built a lot of houses that looked just like the ones next to them. No, I was on the north shore, actually, in
Glen Head. And it’s not a fancy neighborhood, but the
streets had very grand names, and they were named after Presidents. And so there’s Washington Avenue, and next
to that is Lincoln, and Garfield, and on the other side it’s McKinley and Roosevelt. It’s crossed, intersected by Harding and Coolidge. It wasn’t until I got to college that I realized
this guy must be a Republican and that Roosevelt was not FDR, I think it was Teddy. But at the top of this neighborhood was a
little circle with whatever was leftover. And that was my block, and that was Hamilton
Square. So I always had a real sense of connection
to Hamilton. And then I went to college at William & Mary
in Virginia, which is, that’s not Hamilton country. That’s Jefferson’s alma mater, of course. But it didn’t prevent me from continuing to
be a Hamiltonian. And I came back here and for the last 30 years,
I have lived within a stone’s throw of Hamilton’s grave. If you haven’t been, you should check it out. It’s in Trinity Churchyard downtown on the
site that was originally King’s College, and then Columbia University before they moved
uptown. And so I pass it now every day on my way to
the courthouse. It is now, actually it is a tourist trap. It’s like Jim Morrison’s grave in Paris, now. You get a lot of people going, which is, hey,
not a bad place to go. But so I think of Hamilton often, and I think
about his connection to this world. And so I ask myself, why do I admire Hamilton? And I guess there’s a couple of reasons. I admire Hamilton because he’s an immigrant,
first of all. Now that’s a charged term these days. But whatever you think of illegal immigration,
whatever you think of immigration policy, it’s undeniable that immigrants, like Hamilton
and so many after him, have built this country. And so I pass that gravesite and I think of
him, and I think of my grandparents from Ireland in the ’20s and my father-in-law from Cuba
in the ’60s. And I think these folks came here with nothing,
literally nothing except their ambition, their talent, and their determination to make it
here. And I think, well gosh, that’s a legacy that’s
worth tapping into. And one of the great things about being a
retail judge is you get to swear in new citizens. If you haven’t experienced that, you really
should. It is, Judge Raggi was a district court judge
for 17 years, I think, right? And she could tell you that there’s nothing
quite like it, swearing in 150 or 60 new citizens from 40 or 50 countries and have them take
the oath, pledge allegiance to the flag, and come and shake your hand as they get their
certificate of citizenship, many with tears in their eyes. And I think of Hamilton, ’cause he was one
of those immigrants. I like Hamilton ’cause he’s a New Yorker. I mean, he is. I mean, New York was a town, basically, at
that point, a few thousand people, really. But even then, it was a place of creativity
and energy and commerce, which it is today, too. And I walk by that gravesite, I think to myself,
what would he make of this city. He’s now in the heart of the financial district. What would he make of this? And I think most of the framers, including
the Virginia crowd, would be appalled. I think they’d run back to Monticello and
hide. I think Hamilton would be intrigued. I think he’d be amazed at the energy, the
chaos, and just the size of it all. And I admire that, too, so I like that about
Hamilton. I like that Hamilton was a lawyer. Not a thinker writing about Rousseau and Montesquieu
while stroking his chin. He was a practicing lawyer with clients and
cases, who stood up on his feet and argued. And I think that shows in the Federalist Papers
and it shows in the concept of a government that he helped create and institute. So I like that about him, too. And I like his choice of heroes. I think if you asked Hamilton the way I ask
my jurors, “Who do you admire? “Who’s your hero?” And I think without hesitation he would say
George Washington. A person who was, in many ways, just so much
grander than anybody else of that era. And a person who was able to tap into Hamilton’s
genius and to harness it for this new nation. When I walk past that gravesite, I then get
to the courthouse and right next to my courthouse is the state courthouse. It’s the Law & Order courthouse, you’ve all
seen it, I’m sure. But over the top, over the entrance, there’s
a quote. And many of you know it, anybody know it? This is what the quote is. It’s a quote from Washington. “The true administration of justice “is the
firmest pillar of good governments.” Now that’s taken from a letter, actually it’s
a misquote. It’s really “To do with the administration
of justice,” not “The true,” but I don’t think it changes the meaning. But that’s from a letter that Washington wrote
to the first Attorney General of the United States, Edmund Randolph, a fellow Virginian,
a guy who went to William & Mary. Washington was talking about the need to appoint
men, and then it was only men, a certain kind of man, to the federal bench. You remember that the Articles of Confederation
did not have federal courts. And so that was one of the great failures
in the view of the folks who framed the Constitution. And so federal courts were recognized as important. And Washington recognized that, as well. He recognized that for many people, their
interaction with their government would be through the courts more than the executive
or the legislative branches. And it was vitally important that these courts
be worthy of this mission. I think Washington would be very impressed
with my colleagues on the bench, men and women today, who serve in the federal judiciary,
none more than Reena Raggi, who I admire more than anybody, really, sorry a blush. It’s easier. No, it’s the truth. She also grades my work, ’cause… But you know, I think it is true. I think judges are important to the true administration
of justice, but I don’t think they are the only folks who are important, and I don’t
think they are the most important. I think law clerks are important. Many of you are gonna be law clerks, and you’re
gonna be part of this process. If the public knew what responsibilities you
would have, they might be shocked. But I think they’d also be impressed. And it’s one of the great things about our
branch is we don’t really have this entrenched bureaucracy. We have law clerks who come in for a short
period of time, who give it their best, they’ve got energy and vigor, and they then leave. And that’s a good thing. There’s a new infusion of talents every year
or two, and that’s a good thing. Jurors are part of the true administration
of justice. I believe that the older I get. I see that they are wise, they know what they
are doing, and they are, as I said, the most democratic of institutions. But I think the greatest pillar for the true
administration of justice is lawyers. I really believe that. Everybody in this room either has or will
eventually get sworn into the bar of your state and your federal bench. And when you do, you will take an oath. You’ll take an oath to swear, which you will
swear to uphold and defend, to support and defend the Constitution of the United States. Now think about that. I mean, teachers, architects, accountants,
bankers, they do very important work. But none of them really take an oath like
that, to support and defend the Constitution. That’s your job. It will be your job to make sure that the
Constitutional values and rights and principles are preserved. It’ll be your job to make sure the courts
that you are admitted to are better than you found them. That’s an enormous responsibility. And it’s one that I think lawyers do take
seriously. And there’s no organization that takes it
more seriously than the Federalist Society, I really mean that. For 35 years or so, they are committed to
making sure that there is debate and discussion about the First Amendment and about so many
other rights and legal issues. I don’t think that there’s an orthodoxy here. I think that there is, other than a conviction,
that getting the best and the smartest and most articulate people on any issue on the
same stage to give their best and strongest arguments will elevate the thinking and the
results of legal discussion and debate. I think that is really admirable. I think your being here today demonstrates
that. And it’s your job, then, to then continue
now, when you go back home in the communities where you work, and your schools, and in your
cities. So this is a great honor. It’s one that I will certainly cherish forever. But I’m mostly really looking forward to being
with you this weekend. So thanks for being here. Thank you to the folks at Columbia for this
lovely gift and for sponsoring this great event. I hope I’ll see you at the law library where
we’re headed next. I will leave it open to these guys to tell
you where to go. Thanks so much.

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