SoundAffect: Stewart Harris on free speech, hate speech and protected speech

Constitutional law scholar and radio show host Stewart Harris considers the First Amendment protection of speech and expression, and how they play out on college campuses.


  • Megan Hayes: Constitutional law professor and radio show host Stewart Harris is a former environmental civil rights and First Amendment attorney who has advised the Army Corps of Engineers on civil works projects throughout the continental United States, including drafting congressional testimony for the Assistant Secretary of the Army for Civil Works. In private practice, he concentrated on environmental civil rights and First Amendment law, notably obtaining a half-million dollars for a public official who had been libeled by a newspaper. Harris is a law professor in the Duncan School of Law at Lincoln Memorial University in Harrogate, Tennessee. He graduated from Princeton University in 1983 and has taught law at institutions throughout the Southeast since 1999. He also hosts a nationally syndicated public radio show, one I thoroughly enjoy listening to, called “Your Weekly Constitutional,” which is produced by WETS, a National Public Radio station in the Tri-Cities, Tennessee, Virginia region. Harris is on our campus as part of a weeklong series of events devoted to discussing the First Amendment and, in particular, matters of free speech and expression on our college campus. We would like to keep this discussion going beyond this week, and so we've asked him to join us in the podcast studio to think through some questions submitted by our students, faculty and staff. Stuart Harris, welcome to Appalachian State University and welcome to SoundAffect.

    Stewart Harris: Megan, it is an honor, and especially an honor, to meet a loyal listener.

    Megan Hayes: Excellent. Well, I enjoy the show very much. And it's a real treat to have you here. Last night you hosted a panel discussion. We had faculty, students, student development professionals … we had legal experts, and they were all debating some really interesting questions, that are relevant to our campus, and I believe they're also relevant to college campuses across the United States. So, I wanted to continue that discussion now if we could, or began it, for those who weren't there last night. And one of the things I wanted to do is just start with the basics, which we did cover last night, but I think it's great to kind of set the tone. So, what rights are afforded Americans under the First Amendment, and also, what rights are restricted? And if you could talk a little bit about what the historical and legal basis is for those restrictions.

    Stewart Harris: Sure. The First Amendment is deceptively short. It's 45 words and it reads — I hope I get this right — “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or infringing freedom of speech or of the press or the right of the people to peaceably assemble and petition their government for a redress of grievances. Now, there are five different depending on how you count them up, freedoms that are in there, and as you can tell, they are five of the most cherished freedoms we have. I mean, religion is probably one of the most important things to people, whether they are religious or not. I mean people who are atheist or agnostic also hold their beliefs very strongly, frequently. Freedom of speech, freedom of the press are essential to the functioning of our governmental system, and they're also very much a part of our personal autonomy and people rightly get upset when anyone tries to tell them what they can or cannot say. And then assembly, of course. Assembly is one of the ways that we get together and protest the government, or protest other things, or simply express our opinion about something. And then, of course, being able to go to our government and say, “Hey, this is a problem,” through a petition or some other means is one of the most important rights that we have as Americans. So, that's why the First Amendment is identified by many people as being the single most important part of the Constitution of the United States.

    Megan Hayes: I would just like to take a moment because people are not in the studio and could not see that you recited the entire First Amendment without looking at anything. That's pretty impressive.

    Stewart Harris: I probably made a mistake or two along the way in terms of the words, but I think we did identify the the five freedoms that are there. And, as I said, it's a very short amendment, so you don't have to go on at great length in order to say something very important.

    Megan Hayes: So, one of the things that you hear people say all the time is, “Oh, you can't yell fire in a crowded movie theater.” So, there are some restrictions on that speech. Can you talk a little bit about that and what kind of the basis is for restricting those?

    Stewart Harris: Sure. If we want to focus on freedom of speech, I'll first acknowledge that the Supreme Court opinions in this area are very, they're very complicated. It's often considered to be one of the most difficult parts of constitutional law in addition to one of the most fascinating. One way to look at freedom of speech is to start out from the absolute that the text of the amendment actually suggests: Congress shall make no law infringing freedom of speech or of the press. Now, some people simply say, “No law means no law,” and we call them First Amendment absolutists. But most of us, including the Supreme Court, would make certain exceptions. For example, secret codes, classified information. We are restricted by our government from revealing such things. And, repeatedly the Supreme Court has said there is a national security exception to the First Amendment, that's very important. Another area that's highly relevant in this whole debate of speech on campus is something called a “true threat.” If I actually threaten to harm you, a reasonable person would see that as me actually on the verge of smacking you, or doing something bad to you. That's something that the state can also prohibit and punish. And finally, incitement to violence. If I were to turn to a third party and say, “There's Megan. Go get her and hit her over the head,” and if that person was right there and had something to hit you over the head with and there was a likelihood of imminent harm, that's something that also could be punished. So, you see there are, we've identified already three exceptions to it and there are others as well.

    Megan Hayes: Is the right to freedom of speech, does it differ on a college campus than it does elsewhere?

    Stewart Harris: Not really. All of the Constitution, all of the amendments, all of the individual rights identified in the Constitution limit what the government can do. That's something that's extremely important. You remember that controversy we had over “Duck Dynasty” a few years ago? When a fellow said some pretty unpleasant things and the network fired him from the show. Well, fans of the show immediately said, “Freedom of speech. That's unconstitutional.” Well, no, it wasn't it. I think it was the Discovery Channel. That's a private entity and they can hire and fire people pretty much as they please. And they can fire them for saying things that they don't like. But if it's the government — and remember we're at Appalachian State University, so it's part of the government — well then, the First Amendment does apply, and so if Appalachian State tries to regulate speech on campus, well then there's going to be an issue, and we're going to have to evaluate whether that's something it can or cannot do.

    Megan Hayes: That's a really good segue to what I was going to ask next, which you may have already answered, but one of the questions I think that comes up a lot and we see this where college campuses, you know, we're in academia, we look to other colleges — what are they doing? — we have private colleges that'll come out, with somewhat restrictive … at least practices if not policies. And so we look to those, and as a public entity we say, “This probably isn't something we can do as a public institution.” Can you talk a little bit about the differences between the private colleges and public colleges and what, what regulates them?

    Stewart Harris: Sure. There are both similarities and differences. Private, of course means nongovernmental. And so, strictly speaking, the Constitution does not restrict the ability of a private college to regulate speech on its campus. On the other hand, there are some federal statutes typically having to do with the availability of student loans, et cetera, that effectively forced colleges to respect free speech to a similar degree on their campuses as state universities have to do. Probably the biggest exception to that is religious institutions. So, for example, if you have a Catholic university that does not want anyone on its faculty who is a supporter of a choice of abortion rights, then in all likelihood that Catholic university is going to be able to discharge a professor who proposes those sorts of things. And the professor might say, “Hey, that's my free speech right.” But the Catholic university will say, “No, this is our free exercise of religion, and that's going to trump whatever free speech rights you have, and by the way, we're a private entity, we’re the Catholic Church and so the Constitution doesn't apply here anyway.”

    Megan Hayes: So, we're going to file this under one of those things I should remember from my high school civics class, but —

    Stewart Harris: We all should have paid more attention, shouldn't we?

    Megan Hayes: Well, and I will say it's been a while. Can you change an amendment to the Constitution and what does it take to do that? You talked about interpretation of amendments, but are they malleable?

    Stewart Harris: Well, absolutely. The Constitution contains an article, Article V, which mandates several different methods by which the Constitution can be changed. The one that's always been used for every one of the 27 times the Constitution’s been amended, has been a two-stage process. The first stage has been in Congress, where two-thirds of each house of Congress have to agree upon a proposed amendment. Once that is achieved, and that's a very difficult thing to do … can you imagine trying to get this current congress, two-thirds of them to agree on anything? … then that proposed amendment is sent out to the state. Now, three-quarters of the states must now ratify this and it's the state legislatures in each case. And that's another enormous bar, which is often failed, people fail to achieve. In fact, one of the more recent examples is back in the 1970s when something called the Equal Rights Amendment was approved by the requisite two-thirds of majority in both houses of Congress, but failed to ever get the required three-quarters states ratification.

    Megan Hayes: So, there is a lot of discussion on our campus, and quite frankly, campuses across the country, about hate speech, and one of our students, in a question, defined hate speech as “offensive language or anything negative toward another person to demean them or dehumanize them.” Is hate speech defined under the law?

    Stewart Harris: No, it is not. There is no definition of hate speech. And, moreover, the Supreme Court has repeatedly held that things that many of us would probably consider hate speech is actually protected by the United States Constitution. A recent case is the case of Snyder versus Phelps, or Phelps versus Snyder, I forget which it was, where a very hateful group that calls itself the Westboro Baptist Church, which is known for having signs with very offensive language on them, like “God hates fags,” things of that sort, that group has a crazy theory that God is punishing America for its support of gay rights and it's punishing us in a very specific way by God is killing our soldiers who are overseas. And following this twisted logic, these people show up at the funerals of American service members With their hate-filled speeches, including some like “Your son or daughter is burning in hell.” Can you imagine if you lost a son or a daughter and some hateful person showed up and was saying things of that sort? I mean, they're obviously doing it for publicity. Mr. Snyder, the father of an American serviceman who was being so treated, or I should say his funeral was being so treated, actually sued Phelps, the Reverend Phelps, the head of the Westboro Baptist Church, on the basis of an, I think it was intentional infliction of emotional distress. He won his case. The father did, at the trial level, but it was reversed, went all the way to the Supreme Court, which upheld the reversal and, get this, the grieving father of the American serviceman had to pay more than $40,000 in legal fees to these hateful people because the Supreme Court said this was such a clear principle of American law that hateful speech like this was protected.

    Megan Hayes: Wow.

    Stewart Harris: Yes, wow, indeed. I mean, it's often said that the First Amendment … it's not necessary to protect popular speech. “Hi Megan. How are you?” No one's going to object to that, right? It's hateful speech, or I should say, offensive speech, or unpopular speech that requires First Amendment protection, and that brings us by, back to the definition that one of your students offered for hate speech — anything that's offensive? How do you define that? What offends me might not offend you and vice versa. Anything that demeans another person? Well, you've now just outlawed about 90 percent of current political rhetoric, right? Anything that targets a person because of his or her identity, well, now we're actually getting closer to something that I think we can discuss. Of all the things that the First Amendment currently protects that I think one could make an argument should be somehow restricted, or the Constitution should allow restrictions, are speech that is directed at a person because of who that person is. So, if I were to attack you because — I don't know your religion, but let's just say you're Jewish, anti-Semitism is in the air these days — if I were to attack you because you're white, if I were to attack you because you are a woman, now, arguably, you have no control over any of that. I mean, you were born Jewish, you’re born white, you're born a woman, and I'm attacking your position and the body politic as a member of society on that basis. That, I think, is probably the closest anyone's ever come to a workable definition of hate speech. Could we outlaw or should we be able to outlaw that type of speech? There's an ongoing debate over that right now, and though I tend to be very much close to the free speech absolutist position and I quail at any restrictions by the government on speech, I understand we're seeing the rise, especially of right wing hate groups right now, and we're seeing a resurgence in anti-Semitism fueled by the internet. It's very frightening what's going on about it. It's not just here, it's all over the world. I never thought we'd have another decade like the 1930. I thought we learned our lessons. I thought we'd beaten the Nazis, but the Nazis never really left, did they? And so, I think it's, I've not changed my position yet on hate speech, but I'm willing to listen and have people convince me that maybe there's something we could be able to do about it if we define it narrowly enough.

    Megan Hayes: Right. Well, and I think that leads into this next question, which several members of our campus community asked, and I'm consolidating those questions because there were several along these lines, about asking what is that line between free speech and creating a safe learning environment? And so, when we talk about words and what makes us feel safe, or what makes us feel unsafe, do words actually make us unsafe?

    Stewart Harris: I will quibble with the choice of the word “safe” because I personally don't think that making people feel safe is part of the mission of a university. Please let me explain. I prefer the word “inclusion.” I believe everybody, every student, every member of the faculty, and to a great extent, every member of the public should feel welcome at a university. But the reason I don't use the word “safe” is because once they get there, I want to challenge them. I want to challenge them with ideas that are maybe completely diametrically opposed to theirs and ideas that might make them feel extremely uncomfortable. I want to do it in a civil environment, and I don't want to attack anybody individually, but I want to talk about things that are near and dear to people's hearts and challenge assumptions that they've probably had, in many cases, since childhood. So, I don't like the idea of a safe space. I like the idea of an inclusive, respectful space, a civil space, in which we can have this sort of discourse that the university arguably exists for.

    Megan Hayes: Yeah, because, you know, you went to law school. When I think of sort of that, Hollywood perspective of law school, it's this very Socratic, you know, combative professor–student environment, where, you know, you're being challenged and possibly even made to feel extremely uncomfortable, maybe feel belittled. And so, that's really interesting to me, because you may walk out of there feeling emotionally beat up, maybe not because of who you are, but because you are being challenged to learn in a different way. So, I'm interested in that line between people walking out of a classroom feeling degraded because of who they are that they can't change, or feeling really challenged and maybe emotionally feeling very upset because they were forced to think or to learn or to question in a way that they aren't used to.

    Stewart Harris: Yes. As a professor, I actually don't use what would be called a strict Socratic method that frequently because I find that it is too intimidating. There's a power imbalance in that room, right? And I'm on the powerful side of that balance. And so, I try never to do anything that's going to make an individual personally uncomfortable. In fact, maybe I'm too much of a softie sometimes. Maybe I don't go far enough in challenging people. But my general rule is that I will challenge your ideas. I will challenge your position, but I will not challenge you. I will not say that because you are a woman you shouldn't be here, or that's just something a dumb woman would say, which has happened in some law schools, especially if you go back a few decades. But I might challenge it if you take a certain position on abortion, for example, which is a very constitutional subject. I might say, “Well, why is that? What evidence do you have for that? Isn't that inconsistent with this position here? Or how do you reconcile that?” And sometimes students will get very flustered when all of a sudden they're forced to defend and think through their positions and maybe they recognize that there's some inconsistency in their thinking. Now, I try never to push people to the point of tears and different students have different pressure points. I'm sorry to say that probably on one or two occasions in the past 20 years that people have left my classroom in tears. I have to tell this story. There was this one very nice young woman who was in a moot court, which is a simulated appellate argument, and the poor woman got up there and she got her first question during the year appellate argument — it might been I who posed the question — and she simply stared. So, I followed up and I made the question easier and easier and easier. I was practically saying, “Well, what did you have for breakfast today?” just to get her talking, and she just stared. And so, eventually we just moved on, and I don't think she uttered another word during the argument. It was, oh, it was terrible. And my understanding was that she left the room and threw up in a wastebasket. I know it was just a terrible time for her, but, but you see that, that wasn't attacking her, it was putting her in a simulated environment that she needs to be trained for, and sometimes students just don't handle it well, especially maybe the first time. So, I don't try to do that. I try to avoid it.

    Megan Hayes: That's funny you say that, because I remember now one of the first presentations that our class undertook in graduate school. The very first person stood up, opened her mouth and just passed out cold on the floor, and luckily we had a couple physicians in the room and she was revived pretty quickly, and she, to her credit, got up and did her presentation after that.

    Stewart Harris: Now that's impressive.

    Megan Hayes: I think it was that same thing, or just all of a sudden it's that "oh no" moment.

    Stewart Harris: It happens to all of us and unfortunately, or fortunately, depending on your perspective, the law is a very combative profession, especially if you're going to go into any form of litigation. And we can't graduate snowflakes. We can't graduate people who can't go out and immediately stand up to a judge or stand up to opposing counsel. To some extent, you're training warriors, and warriors have to be tough.

    Megan Hayes: Yeah. Because, you know, one of the things that I hear faculty and administrators say is, “It is our responsibility to prepare students for the next step.”

    Stewart Harris: Right.

    Megan Hayes: And when they leave here, if they have not been challenged and they, they haven't failed, and they haven't had those, some of those experiences that are quite tough emotionally, they're not going to make it, you know, in the professional environment.

    Stewart Harris: They will not. I have two ... I'm very proud of them, two very high-achieving young men as sons, and I would always challenge them at home. They'd come home and spout off with something, and I would do the same thing with them that I would do with my … “What do you mean?” And sometimes they’d get mad, and sometimes they'd yell at me, and sometimes they'd cry, but by golly, by the time they left home, they were ready for that sort of challenge. And I think we do a disservice to our children or to our students if we don't challenge them. So that's, that's where I try to draw the line. I, I sometimes even have statements in my syllabi to this effect, you know, this is going to be challenging. We're going to talk about some difficult subjects, but we're going to try to do it in an environment of civility and mutual respect.

    Megan Hayes: So there are statistics that show that, with the exception of military and religious institutions, college campuses are typically liberal environments, and students here on our campus, and I believe on other campuses as well, … there are conservative students who may feel that they can't be outspoken about their beliefs or their opinions because they're concerned that their professors will take, you know, a more liberal viewpoint, and that student might, maybe not be, but feel ridiculed or uncomfortable in the classroom. So, I'm interested in, again, that responsibility of the professor. Do you feel like the professor has a responsibility to foster a wide range of viewpoints? Because that kind of goes in with this concept of how do we challenge people to stand up and think through their belief systems.

    Stewart Harris: Absolutely. I think professors have a responsibility to encourage a variety of viewpoints. The caveat is that you have to be willing to defend it. OK. Don't just state, “This is my opinion, and I'm not going to change it.” Well, then, why are you here? You just want the degree so you can march off and get a job? Well, that's not what we're in the business of doing. We're not degree mills. We are places that where we want to teach you something. So, you can be as conservative or liberal in my classes as you want to be, the particular method that I will use — I think there are basically two approaches. One of them is to very explicitly state who you are, you know — I'm a conservative law professor, but I will respect liberal perspectives if they're defended or, or the converse. That's one approach. Some of my colleagues will use that. I prefer the other approach, which is when students ask me my opinions, I say, “I'm not here to indoctrinate you. I'm not here to give you my opinions. I'm here to teach you, and I will challenge whatever position you take on something, whether I personally agree with it or disagree with it.” Now, it's not like I hide who I am. If students want to come back to my office and asked me specifically, I'll be happy to discuss things with them, but I simply try to be as objective as I can in class and try not to present one side or the other of any particular issue, but to, to challenge the students to think. And I will specifically say, I will say, “I like it when students disagree with me. I encourage you to disagree with me. Just be ready for me to argue with you.”

    Megan Hayes: Right. Which leads to ...

    Stewart Harris: Oh, and one more thing. It won't hurt your grade.

    Megan Hayes: Right.

    Stewart Harris: In fact, it will enhance your grade if you can tell me I'm wrong on something and make me think about it. In fact, I sometimes will have a … well, I always have a, an idea of what I want in terms of an answer to an essay question. I mean, I have an idea of what the right answer is, but just recently, I was grading some exams and a person came in and argued a very different outcome, had very good arguments. That person got full credit. OK. That's not how I would have come out on it, but the person made a very good argument for his or her position. That's what I'm looking for.

    Megan Hayes: Yeah. That's our dream, right, for, for students to do.

    Stewart Harris: Exactly right. You don't have to agree with me. You just have to think and you have to defend your position.

    Megan Hayes: Yeah. So, when professors do take a stand on an issue, and I think this leads into the discussion about academic freedom, and I'm, I'm really interested in that intersection between academic freedom and free speech. I don't think most college students know what academic freedom is or even that it's a thing. So, can you talk a little bit about that, and how that impacts a professor's mindset walking into a classroom and teaching in a classroom?

    Stewart Harris: Academic freedom goes to the very mission of the university. The mission of the university is twofold. First, the acquisition of knowledge, and secondly, the dissemination of knowledge.

    Megan Hayes: And when you say university, you mean academia?

    Stewart Harris: Academia broadly — colleges, universities, higher education. Professors have two jobs: go out and figure out something new about history, or something new about science, or something new about mathematics, perhaps publish that in a paper or a book, and then use that expertise that you gained to turn around and teach that subject to your students. Now, in both of those realms, whether I'm publishing an academic paper or whether I'm teaching students, I have to have complete freedom to pursue whatever truth is according to my lights, and if that leads me down a path that a student, or my colleagues, or my boss, or if I'm at a state university, the state legislature doesn't like, then I have to still have that freedom. I cannot be threatened with the loss of my livelihood, because professors, unless they happen to be independently wealthy, are just like the rest of us, and we have to make a living. We have to provide for our families. If you had threatened — well, look back to the Middle Ages. If we didn't have academic freedom, to some extent, we would all still believe that the sun revolves around the earth. I mean, every great idea is opposed by somebody because it offends somebody or it threatened someone else's livelihood, or some other institution’s legitimacy. And we've seen that when those ideas are suppressed then human progress is delayed, if not completely stopped in that area. That's what academic freedom is. So, it exists both outside the classroom and inside the classroom, and it's specifically protected at many universities by an institution called tenure. Tenure’s gotten a bad rap in the last few years because it's considered to be simply a job guarantee that induces professors to goof off, and let's be honest, that does happen. I've, I've met a number of my colleagues over the years who basically just retire on the job at that point. That's not good. But far, many far more of them use that freedom in the way that I've just described and they feel much more free after they've gotten tenure to engage in free inquiry and free teaching.

    Megan Hayes: And that tenure process, which again, I'm not sure students really understand what that means because they go into class and they, you know, they're taught by the instructor at the front of the room. That person — I mean, I teach a class, I'm not a professor, I do not have a Ph.D. I'm an adjunct instructor. They'll call me professor out of, you know, respect, and I always correct them because I'm very cognizant of the fact that I am not. But that tenure process is also something that's very rigorous and involves a lot of challenge on the professor level as well.

    Stewart Harris: Typically, as was discussed last night, it's about a six-year process. And if you're hired as an associate, or excuse me, as an assistant professor on something called the tenure track, and even though your contract is initially renewed only on a typical year-to-year basis, the expectation and the hope is that you will satisfy the requirements of tenure, which typically involve publishing a certain number of peer-reviewed articles that your colleagues are impressed by and also doing a reasonable job in the classroom and serving on committees to a satisfactory extent. So that’s a probationary period. As was pointed out last night, theoretically, academic freedom protects you at that stage, but when you're on a year-to-year contract, how protected do you feel? Once you get over that hump and you actually have tenure, then you really sort of can blossom. I think most people feel as if they've got a lot more freedom once they've got that protection, down the road. So tenure is extremely important. You've touched upon something, however, that is a real issue in academia right now, and that is that the tenure track is disappearing, and more and more institutions are moving toward adjunct models, or contract professors, or visiting professors who rotate in and rotate out, and those people don't have nearly the job protection that tenured professors do. They don't have the benefits. They typically don't have the salaries that professors do. So, in other words, we're going to a gig economy in academia and we're losing a lot of what tenure was designed to protect, and we're also simply not valuing our teachers and our people, and so I'm hopeful that that trend will not continue indefinitely.

    Megan Hayes: Are we also losing the space in which academicians can challenge one another in terms of, you know, you put forth an idea, an idea that may be a great idea, but I don't agree with that idea?

    Stewart Harris: Absolutely. If two tenured professors are arguing over something, they can just let loose. OK, but if I'm a brand new assistant professor at the university and here's a full professor with tenure, and here she is disagreeing with me, just how forceful am I going to be in my disagreement? In fact, maybe I've even chosen topics to research and write about that I think will please that professor because he or she is going to be voting on me in a few years, and I've seen this happen. I've seen this dynamic. In fact, it's sometimes cringeworthy if you go to an academic conference and you see a junior professor get up there. They're just positively obsequious to the people around them. That's not good for academic freedom. It's not good for the pursuit of knowledge. It's not good for the intellectual climate at a university. Similarly, it's not good if anyone in a classroom where there's a professor, the student feels constrained by some outside reason for not expressing himself or herself honestly. One thing that my university does, and I'll, I'll risk criticizing my own institution is that, for the convenience of the students, we record our classes. Now, primarily you're hearing the professor and seeing the professor on these video recordings and I understand that can be very useful for students who have to miss a class or something. I suspect, however, that they retard classroom discussion. Many of my law students want to be judges, or want to be politicians down the road. So, are they really going to honestly debate something that they think might harm them down the way? Probably not. I mean, if they're smart, they'll keep their mouth shut. And so, what's happened to the classroom?

    Megan Hayes: Yeah, I mean, and I would imagine that extends beyond the classroom, too, because we're such a recording-happy society in general.

    Stewart Harris: It's terrible.

    Megan Hayes: I mean, I think about the things I did when I was 19 —

    Stewart Harris: Thank God there were no iPhones.

    Megan Hayes: Right?

    Stewart Harris: What really frightens me is that there were cameras and that if any of those pictures actually makes its way online, OK, I'm sunk. All of us do stupid things when we're kids. We all do stupid things. We say stupid things. But I've emphasized to my children, as I'm sure everybody has who has kids, and I emphasize to my students, you know, when you step out your door, anything … you got to just assume someone's recording you and it could come back to bite you. And that's why I'm so concerned about having these recording devices in our pockets all the time. I do it myself. I've got my iPhone right here, but I mean, there's malware out there that can turn your phone on even when you don't know about it, and that includes the camera. You got to be really careful about these things.

    Megan Hayes: So, is that a restriction on First Amendment rights?

    Stewart Harris: Is that a restriction? It's certainly something that, that tends to suppress, or as we like to say, chill free speech, but again, as long as the government's not involved, then there's not a First Amendment issue. And think about this also, we are voluntarily giving up enormous amounts of our privacy by posting stuff on Facebook that arguably shouldn't be there, by taking pictures of ourselves and perhaps of our children that really are more personal or private. Certainly people who engage and take selfies of intimate acts are taking an enormous risk. In fact, this has given rise to an entire First Amendment issue, the issue of revenge pornography. Have you heard of that? I have a colleague, Mary Ann Franks down at University of Miami — very impressive woman, former Rhodes Scholar, and a practitioner of Krav Maga, the martial art that the Israeli army does. I mean, she's kind of scary. She is a, she's a scholar of, of revenge pornography. And the typical scenario is that couple gets together, typically the man asks the woman for some racy pictures … let's say she voluntarily gives them to her, gives them to him, but for his use only, and then they break up and the next thing you know, the pictures are all over the internet and the woman's life is ruined. I mean, some women have committed suicide over this, and it can go the opposite way as well. And some men are in dire straits because of this. But that person has, to some extent, exposed himself or herself to that potential. I'm not excusing the behavior of the other party, I'm simply saying that all of us need to be very careful about such things.

    Megan Hayes: Right? Yeah. You know I have two girls, and I talk to them about, you know, the difference between protecting yourself and assuming responsibility for what happens to you. And so I use the “cross the street.” I'm like, you know, you cross the street, look both ways. If you walk in front of a car and it hits you, it's not your fault because it's, you know, they shouldn't hit you. That said, you need to look both ways before you cross the street.

    Stewart Harris: Between you and a car, I know who's going to come out second best. Right?

    Megan Hayes: Yeah. So, you know, I ask a lot of guests on this podcast a variation of this next question. And it's really because I'm very interested in how change takes place in government and in large social structures. And college campuses have been places where student activism has historically taken the form of marches and protests, certainly today is no exception. At these events, typically, demands are made, and then it's always like, then what? Right? So, I wonder what happens next, in your experience or in your knowledge, that really makes a difference. How does change actually take place after that initial external agitation? Which, I think is, in some cases, important to raise awareness about an issue.

    Stewart Harris: It's called the ballot box. I know that there are many of my colleagues and many of my friends who are cynical about government, and they'll say it doesn't matter. You know, it's the same old thing. There's no difference between the democrats and the republicans. I beg to differ. There are stark differences between our two major parties in this country and there are also significant third parties out there. We have a representative form of government, and I recommend to people that they use it. As you say, demonstrations can be extremely important. They're one of the things that are specifically protected in the First Amendment. And I encourage people to do it peacefully, to assemble and to petition their government for redress of grievances. I think that the women's marches that happened right after the election of our current president were very effective in mobilizing lots and lots of women and gotten, getting many of them to vote democratic, but that it was only relevant, it was only ultimately relevant in the 2018 elections when the women who were energized by those movements actually showed up at the ballot box and voted. And now we see change happening, don't we? OK, that, and it also happens on the right. There was the tea party movement and those people had their demonstrations and then they showed up and voted. So, demonstrations are important in a variety of ways, but ultimately they will fizzle. One example, and I'm sure there were many good people in this movement, but I, I have to criticize it. The Occupy movement. It had no leader and had no spokesman, or women. It had no platform other than a general outrage at the powers that be, you know, corporate America is evil. You know, the people don't have enough power. This, that, the other thing. OK, fine. Without a coherent message, without some sort of organization, what happens? People get out, they express their outrage and then they go home. OK. Well, thank you very much for your time.

    Megan Hayes: Yeah. Thank you. So, I have heard scholars argue that the way today's students will interact socially, the way that they will vote, the way they'll make key life decisions for the rest of their lives is being formed right now by the social environment that they're in. Which I think is safe to say is not characterized by an over willingness to compromise. At least I think it's safe to say our government structures are having a hard time finding common ground on which they can stand and compromise. And so, given this environment, that's the context for tomorrow's leaders, formative learning experiences, what's your advice for today's college student?

    Stewart Harris: To have an open mind. To realize that, as well intentioned as your parents and your church and the Boy Scouts or the Girl Scouts, all the institutions that influenced you as a child, as well intentioned as they all might have been, they typically come from a certain perspective that tends to be more or less the same and reinforces the same values and beliefs — whatever those beliefs are. You’re going to come to college and you're going to meet people who have had different parents, and different institutions that influence them, and have different perspectives on things. Talk to them, listen to them, don't reject them out of hand, don't marginalize them. Listen to people and ask yourself, is this something that I want to consider thinking about? Is this something that maybe this person is right on and I'm wrong on? I remember I went into college back in the fall of 1979 with some very definite beliefs about a number of political issues, for example. Four years later, a lot of that had changed. Well, I think that's a good thing. Apparently I was paying attention a little bit in college. I mean, why are you going to college if you're simply going to emerge the same person you were when you started?

    Megan Hayes: Yeah. It's funny because I, I think in some cases that could be an argument for people not to go to college.

    Stewart Harris: If you're not going to take advantage of it than go out and get a job. I mean, I mean, why are you here, just to party? I mean, that's an argument. I mean, college is fun. I mean, if somebody else is paying for it, especially, but other than the fun argument, I mean,  you're supposed to be here to learn. And you'll learn a lot from your classmates. You learn a lot from speakers who come to campus with whom you disagree. And you learn it in casual conversations, and then of course you also learn it in the classroom. I remember a number of classes I took that made me challenge the beliefs that I had entered college with and made me really think about things. So, it's all good.

    Megan Hayes: Well, Stewart Harris, thank you so much for your time today.

    Stewart Harris: It's my great pleasure, Megan. This has been a very interesting conversation.

    Megan Hayes: It has been, and I think that this is a discussion that, certainly, the topic is going to last for quite some time. I hope that this discussion itself will be an important part of that for our community because your perspective as both a practicing attorney and a professor in academia is a really valuable one for us to consider and to be able to look to as we sort through a very interesting time in the history of our nation and also in academia. So, thank you very much.

    Stewart Harris: Thank you.

    Megan Hayes: A little bit before you go. Your radio show is also available on podcast as well. So, you want to tell us how to find that?

    Stewart Harris: Oh, yes. Thanks for letting me plug it. It's called “Your Weekly Constitutional.” Just Google it and you'll come up, one of the first things you'll come up with is our podcast site, and you'll see that we're underwritten by James Madison's Montpelier, his historic home, and we have over 300 hourlong episodes on the podcast site available also through Spotify and iTunes as well. And they range from current issues, the president's tweeting, for example, was a recent episode, to historical issues spanning the entire 231-year history of the Constitution, and it's all conversational, and it's all designed for everyone — not just for judges and lawyers and academics.

    Megan Hayes: Excellent. Thank you so much.

    Stewart Harris: Thank you.