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tv   Key Capitol Hill Hearings  CSPAN  May 7, 2016 4:00am-6:01am EDT

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is given the opportunity to apply the second amendment to the states via the privileges immunities clause where the legislative history of that was quite clear that was one of the core things they intended. or to accept the existing precedent of the court this substantive due process process he criticizes. leaving justice thomas alone on that. so i think there's a lot of fruit for further inquiry that we can gain by looking at those areas. they don't often agreed but got there by different routes and telling and worth our inquiry. >> thank you so much. and thank you all for your brilliant and moving statements anecdotes and your own mag nam anymorety. i'm going to start off on some questions before we open up to the audience. famous commnt tator, not an ally, said just after d.c.
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versus heller was decided, we are all originalists now. now, professor mitchell op pined on some of these issues and heller established an individual right to bear arms under the second amendment but it's remarkable also because both the scalia majority and justice stevens' dissent went to the public meaning of the the second amendment. will it endure? and that is among his greatsest legacies. so if we could have as short an answer as complex topic as that can generate. >> sure, even nonoriginalists ments ling to make argue when it serves their purses. there's a opinion that marshall wrote dissenting from a supreme court ruling that upheld a jury of fewer than 12 persons. he argued on originalist evidence that the right of jury trial required 12 persons because that was the original
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means. so it's nothing new to see him in dissent in heller trying to make originalist argue ymingts. so everyone is an originalist to this extents. everyone thinks it's counts for something. i'm not aware of anyone either in the judiciary or legal academy who thinks original meaning of a text is absolutely entitled to no weight at all. at the same time, i don't think there's anyone who is an originalist in the opposite direction meaning it's everything and nothing else can be considered. so it's hard to answer your question. everyone thinks original meaning is something that's considered in interpreting a text. but at the same time, even the most dog matic originalists have acknowledged that sometimes you do have to reach not originalist results because you have well established precedence on the books. no one should think the supreme court should declare paper
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money illegal. >> thank you. professor. let me add real quick to that because i do think there's more to this. i suspect had it not been for justice scalia on the court and the transformation of our understanding of the importance of originalism we would have seen an entirely different opinion in he willer. it would have balanced the public's interest and the threat of guns and we would have had all this these brees from both sides about what the risks were, was it more beneficial to have gun control or less beneficial. and that would have been the end of the matter. maybe there would have been some glancing nod of the text of the original meaning but it would not have been whole sale front to back end of both of the opinions grappling with that question. which because of scalia has now become much more dispositive than itr -- well, not ever.
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but than it had been for 50 years. >> go ahead. >> i do think also that optimistic that justice scalia has had an influence in causing the court to move more toward originalism. i think that if probably one can be cynical and say yes justices will do what they want. but i'm optimistic in looking forward to see what happens going forward. just as an example. crawford was a case which upheld an originalist meaning of the confrontation clause. what does it mean to be confronted by the witnesses against you under the sixth amendment? does that mean that it's ok to introduce out-of-court statements as long as they omply with some well established hear say exceptions there you have an array of
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justices joining in true overagenalist fashion went back history. ed the we had a couple of cases where the court went the other way on child witnesses who were meant to be protected by not having them have to sit in the courtroom and see the person that they were accusing of the crime. they could testify by video or behind a screen. and the court upheld those procedures over justice scleenia's originalist dissent. so for me it was good to see crawford come around where you had at least a significant majority of including some of the justices adopting a different view. i think also one thing i want to clear up. after one of the negative articles written about justice scalia following his death was one written by jeff in the new yorker some of you may have seen it. it was a pretty negative article. he was a college class malte of mine and good friend.
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i was disappoint ds because it was not really intellectually honest with regard to what he described as justice scalia's originalism, which he described as originalist in the sense that we have to decide what the framers subjectively thought when they wrote the relevant provisions of the constitution, which other panelists can speak to this but i don't think that is at all what his originalism is. it has to do with the words that were written, the text of the provision. looking at crawford is a good example. in what those words would have meant to jurists and members of the public and lawyers in the day and time that they were written. it's very different from saying ok what did alexander hamilton think hevs doing in writing these words? and of course jeff then says, well, he therefore dismiss it is exercise because how could these people have thought about things that were new? like imaging technology that
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gets used to invade the interior of a house and figure out what's going on in there. where the justice led a the ty of the court in originalist result which was that the fourth amendment protects homes, people in their homes, and that means homes the privacy of the home even if new technology that the framers never would have known even existed can be used to figure out from the sidewalk what might be going on inside the home. that's just a couple -- and i'm -- in light of those opinions where you see not only justice skwleia but multiple members of the court going along with this, i'm optimistic that there's going to be a legacy there even on the constitutional side. >> just real quick, an academic perspective. i agree that there's always been the idea that you could
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use originalist arguments if they happen to get you where you wanted to be. but i think what's different post scalia is that it is at least incredible and recognizes a plausible position to hold that originalism and textualism should be decisive in the sense that it should lead you to results even when you don't want to get to those particular results on policy grounds. and that kind of view of originalism, at least when i was in law scool, that kind of -- you espouse of that kind of view people look at you like you had three heads or worse. and now i wouldn't say -- i mean, i think it's a great overstatement to say we are all originalists now if you mean it in the sense that we think originalism should be decisive at least in the absence, some other thing that recognizes as
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counterveiling. i don't think we are but some of us are. and we can be. even within law schools, even within the law school professorship. and the reason that it's the -- when i told my panchts i was going to go be a legal academic they thought that was a bad idea. they said well you're not going to be able to survive there the e you don't have value that is they have and they're not going to accept you. but that hasn't been true. the originalists have a seat at the table, as one of my colleagues said. it's not the case that originalists dominate. but it's also not the case that we are driven underground. and i think that to a very large extent that is a legacy of justice scalia because justice scalia made it impossible to say that iginalism was of marginal or unimportant thing to consider. and so that is the way i see it
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playing into his legacy playing into sort of the academic conversation, which i think then plays over to some extent in the broader legal culture as a whole. >> thank you all. i'm very pleased that ms. miles mentioned the maryland versus craig originalist dissent of justice scalia. and he cared very much about words. modestty e millty and led him to decide case after case for flag desiccators. i think he said in a different public gathering that if i were king i would punish them but i'm not king. for criminal defendants, there's the right to confrontation in crawford, ohio versus clark. where decided the reliability test the common law test as that flabby test. for the criminal defendants who have been unlawfuly searched,
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for administrative agencies even though he was one of the earliest editors of regulation magazine and for a lady who ied to poison her hub band's paramour and was federally prosecuted. so how did they inform the greatness and legacy? >> well, i could speak to the flag burning cases since they were decided at least the second one was decided my term. it was the state case that came up the term before i was clerking, the 88 term. then the following year congress had passed a statute essentially trying to fix the problem that the court had created in texas versus johnson. at the time johnson was decided 48 out of a states prohibited the burning of the united states flag as a means of protest. that was essentially what all the stats tutes said. and the court in opinion by
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justice brennan -- justice scalia didn't write opinions in either texas v. johnson or ikeman the one that came up my erm but he joined the opinion, quite expansive. -- what e scalia brennan had done was an understanding of the first amendment that went back largely through court precedent. i wouldn't call it an original opinion by justice brennan but nonetheless it applied the historical meaning of the first amendment as the court had expounded it beginning with various dissents in first amendment cases and leading up to the court's adoption of his view that if the words or expressions are made in protest, that's at the core of what is protected by the first amendment.
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so actually the logic of texas v. johnson wasn't that complicated. it was really the setting that was hard for some of the justices and members of the public that can't we even protect the united states flag? but the fact is the statute was written to prohibit the conduct only when it was as a form of protest and not otherwise since burning of the flag is is the way you're supposed to dispose of the flag. so it was really frankly an easy case for justice scalia under the first amendment precedence. he did say famously that if it to me, i would put in jail every sandal wearing, scruffy bearded weirdo who burns the flag. but, he said, i am not king. he said it's perfectly fine for the state to the prohibit me from putting my hand out the window while driving a car but what the state can't do is prohibit me from putting my fist out the window when i
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drive a car. he said it would have been perfectly fine if the state or congress prohibited flag urning altogether but that's not what they did, either in the texas case or subsequently in the case involving the united states. and all the dissents, interestingly, in the case, were all about patriotism and chief justice rehnquist included several long poems, patriotic poems and songs and that was really the gist of the dissent, there should be an exception to the first amendment for the american flag but justice scalia, no matter his feelings about scruffy bearded weirdoes, he was not willing to create an exception to the first amendment. >> i'd like to thank you for that question because i think there's something of an emerging narrative about justice scalia that, while he talked big about originalism, he decided cases according to the way he wanted them to come out and originalism was a screen.
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you'll find that in some public commentary and also in some more serious academic writing and i think it's important to push back against that narrative because i just don't think it's right, as the cases that were listed off indicate and i'd like to add one case to your list, one of my favorite of his dissents which is hamdi versus rumsfeld where the interested party was an accused terrorist and the court held that he could be -- that he could be detained without trial subject to minimal procedural protections and justice scalia dissented and said either he had to be tried for treason or he couldn't be held. it's a great dissent. he referred in that case to the courts, quote, mr. fix-it mentality and that, quote, the court's taken a mission to make everything come out right, initial caps, everything come
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out right. so he rejected that idea even though it led him to the conclusion that this terrorist should be -- excuse me -- accused terrorist, should be set free or tried for treason but not detained in the way the court and executive branch wanted to and i'm sure it wasn't because he had sympathy for terrorists. so i think it's an important to see what he was doing here. the one part of the question i'd push back a little bit on is not how far i would go endorsing his personal humility and modesty. i don't think that was the determinant thing. but what really made the difference to him was the idea of the rule of law. that's what mattered to him. that's what he saw himself as a servant of and the idea and therefore that links up exactly with what he criticized the court in hamdi. it's not the court's mission to make everything come out right
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but the court's mission to apply the law. >> i want to pick up on that theme a little bit because one of the criticisms of originalism as an enterprise is that it's unknowable, how can we put ourselves back in 17 91 and figure out what they intended, the scarecrow version of originalism or what the original public meaning was as we're 200 years later. and since it's so indeterminate, that means it's a facade for achieving the agenda i want and i think these cases are pretty dispositive proof that for scalia originalism wasn't a tool to get him where he wanted because it often took him to places he didn't want to go. the notion that there were criminals with lighter sentences or convictions overturned altogether is not what you would expect from a
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conservative jurist on the court like scalia yet that's what blakely and crawford lead him to, that we can't use police investigative techniques that would have been completely unknown to the founders if they intrude on your house, even in virtual ways rather than physical ways, the kylo case. so i think that's dispositive proof that he was not use originalism as a tool to advance my agenda but use originalism as the end of our inquiry to see what the rule of law requires of us as judges whose job is to interpret, not to remake the law. >> it's also really hard to see how originalism can support the results of the flag burning case. the text says speech, not expression. the original meaning was far more narrow than justice brennan's opinion. >> the fact that he may not have been perfect on his
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understanding of originalism on any different case doesn't mean -- if he was going to use it for a tool, he would have come out on the other direction on that. >> it does rebut that point but it's odd for me to see the flag burning case -- producing the results in that case and the court's opinion was not originalist in the way it reasons through the issues. >> thank you for the discourse. e were impressed, the personal humility helped him put the rule of law ahead of his own private agenda. we appreciated that. justice scalia's morrison dissent had the brilliant quote, this wolf comes as a wolf and it has often been regarded as among his finest hours on the court. why did he care so much for structural matters that
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undergird our constitution? >> i guess i'm a separation power scholar so maybe i should answer that question. i think that part of it is the rule of law in that the framers wrote the constitution with particular attention to separation of powers and federalism which they regarded as the fundamental protections of liberty. the original constitution idn't have a bill of rights, had minimal protection for individual rights in its text but as federalists argued during the radification debates, the reason they saw the separation of powers of federalism as sufficient protection for liberty that they didn't need a bill of rights. ultimately that argument was rejected by the adoption of the bill of rights but that didn't take away from the proposition that separation of powers and
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federalism are themselves protections for individuals and so that was fundamental to the framers as they wrote the constitution and justice scalia, seeing himself as the enforcer of the rule of law, enforcer of the constitution, thought it was essential for him to adopt that view and take it seriously because that's what the constitution says notwithstanding the fact that the court had been very loose in its interpretation of separation of power and federalism in the 50 plus years before scalia came to the court and i think that's what morrison symbolized although i have to say that i think morrison is not an example of scalia struggling with the rule of law against where he'd like to come out. i think he completely bought into the framer's proposition that separation of power was protection of liberty so i think that made morrison an easy case for him. ms. myles: i would add, also, it's not surprising that he was passionate about separation of
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powers given his views on the limitations of the judiciary. everything about his jurisprudence consistently says the role of the judge should be a very limited one. put it another way, the judge doesn't exercise legislative power or executive power and when it does so, it's acting illegitimately and also diminishing the rights of the people tone act their own laws so it's in that way diminishing the freedom of the people that is preserved by the separation of powers. he also parenthetically worked in the executive branch, and had strong views from that experience of the importance of a singular executive and of executive power so he came to the court with very fully ormed views on the executive power, as well as legislative and judicial. >> one of the things that most of the commentary about justice scalia's passing has not
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focused on is was he himself changing his views in anything and the idea that flows out of the separation of powers in morrison also contributed early on to justice scalia's full embrace of chevron deference to executive agencies and i think that kind of goes up out of his disregard for the activism of the warren court in the 1960's and early 1970's when he comes of age. the court kind of answering every question and he said if we defer to the executive agencies we're at least deferring to a political branch that however imperfectly owes its direction to an elected federal, the president. and in recent years, though, he came to the realization that that itself was a pretty dramatic violation of separation of powers because we were allowing unelected executive agencies to write massive amount of law when law
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making powers vested in congress and accountability for the law making power and costs that go along with it are supposed to be vested in congress so he started in recent years even backing away from some of the deference doctrines that he himself authored once he came to the realization that they themselves might be violating the core separation of powers principle now that he had time to reflect and see its operation more fully and i think that was a very significant aspect of justice scalia's intellectual journey on the court that he would be willing to reverse course on something he authored if he saw it bucked up against the understanding of the constitution, ultimately. ms. myles: i'd have to disagree with one aspect of what professor eastman said. i don't think justice scalia was ever a big fan of chevron. i think he grudgingly accept it. he didn't author it, for sure, and i think he and justice stevens often had disagreements because i think justice stevens
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did see it as an open-ended deference to the executive branch and embraced the idea that this meant that the executive was going to be writing law. i think justice scalia always bristled at that. i think he felt bound by the precedent and maybe it was the only solution. certainly it wasn't going to be a solution for the judges to make up law but i know that he and justice stevens had a distinct difference of opinion on what chevron has step one and step two. step one says, is the statute ambiguous and step two says, if it's ambiguous, the executive interpretation can fill in the blanks as long as that's something we can infer congress meant to law the executive to do and justice scalia always said that between him and justice stevens, the difference that was he would almost never find the statue ambiguous because he would say you look at the statue, interpret the words, apply traditional doctrines of statutory interpretation and i, justice
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scalia doing those things, believe the court can come up with the correct interpretation, only rarely would i be deferring whereas justice stevens was quick to find ambiguity and quick to defer. >> i don't disagree with that. the additional deference doctrine he did author, what we call our deference, is the one he was backing away from toward the end of his term on the court. mr. dasgupta: justice scalia went from fainthearted, calling himself a fainthearted originalist to calling himself a stout hearted originalist. if words and an instrument have meaning, he contended those meanings should to be honored. substituting new meanings, judges substituting new meanings or diluting the meanings already extant made the judge into an extra judicial creature. other than the fact that this might generate normatively disagreeable results at times rom various political circles,
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why does the justice's philosophy provoke such reaction in some quarters? >> let me take up the fainthearted originalism point first. the constitution gives congress the power to create an army and navy. it doesn't say air force and nobody would say therefore there's not the authority to create an air force and if that means you're a faint heart the originalist, so be it. i think that part of it was the response to the kind of more silly charges of what originalism mean. the more difficult one for him was an eighth amendment case where something that would have been perfectly acceptable as a punishment in 1791 when we adopt the eighth amendment, capital punishment for horse thieving, for example, would be completely unacceptable and i think he would have no problem saying it violates the eighth amendment to do so today and that's why he claimed it made him a fainthearted originalist but i think those are marginal
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cases and don't go to the heart of what the true originalism enterprise is and i think that's why he first responded the way he did and came back and said i'm a stout hearted originalist. >> a difference between using originalism to strike down legislation and more as a shield to uphold it. when he's talking about fainthearted originalism. there are two ways to describe it. one could be the example in the eighth amendment where the court would strike down a policy that legislature as enacted. the other way is to think of it as giving way to stare decisis. there were a lot of non-originalist precedents that justice scalia seemed to adhere to. one was the size and scope of the commerce power, the other is one person, one vote. he hasn't argued for overruling that. incorporation of the bill of rights, far from clear that
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incorporation was the original meaning of the 14th amendment so there are examples like that where he has gone along with precedent in the name of stare decisis without arguing that every single precedent should be overruled so in that sense i think he is a fainthearted originalist and not stout hearted. ms. myles: i can say one thing about that. he had a reason for doing that and that was he didn't want to be -- i think he wanted to be able to have an influence on the way the legal scholars, udges and the public, american public thought about the constitution and incorporation is a great example because the text of the constitution couldn't be clearer that the first amendment does not apply to the states. congress shall pass no law. not the states shall pass no law and the idea that somehow was incorporated through the 14th amendment to the states following the civil war is not very historically -- it's not
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supported, really, as an historical matter. but he was not willing to go back that far and turn back the clock, partly because it would -- it would make -- it would render him incapable of contributing to the debate about what the first amendment should mean, since most cases that come up, come up from states, and in every such case, he would have to say, not applicable. of course there would still be federal cases but i would wager that the number of first amendment cases that come up in the states is greater than the number that comes in the federal government. >> with me on my i.r.s. litigation but i'm nothing else. >> i just have to quickly note that i don't think it's true that the incorporation doesn't have any historical basis. i think incorporation, through the substantive due process clause, doesn't have historical
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basis or textual basis. he went along with that but christen was making a broader point that i had to push back on a little bit. i wanted to take up the question you asked us directly about and also push book that. you asked us, other than the facts that this might generate normatively disagreeable results, why does the justice's philosophy generate disagreement? my answer is -- it's exactly because it generates disagreeable results that eople don't like it. and more than that, it would take away from the justices and it would take away from elite lawyers and it would take away from us as academics and law students, the ability to argue policy, which is what, after all, we love to do, and we arbor in our mind the idea
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that we could persuade a justice or five justices to adopt the policy that we think would be best and isn't that -- isn't that a feeling of power? you might not be able to but there's a chance you could. and that's why i think it's so -- the non-originalism, living constitutionalism, whatever you call it, is so appealing because -- it's a feeling of power and that's exactly why people hate originalism. mr. dasgupta: thank you so much. almost a herculean task for each of you. justice scalia liked to say, i don't attack people, i attack ideas and some very good people have very bad ideas so if you could each share a thought about his personal decency and relationship with his
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colleagues or with his clerks, his larger family, that would be wonderful. ms. myles: i can start. justice scalia did have an amazing ability to appreciate in other people their best qualities. and he loved the other justices on the court. and, you know, i had the good fortune of clerking the last year justice brennan was on the court and justice marshall was also still on the court then. what people often talk about how justice scalia's relationship with justice ginsburg and that is a famous relationship and quite a remarkable one that was formed when the two of them were judges together on the d.c. circuit. they got to be friends and spent every new year's together and they loved opera and loved to go together and he was thrilled when she was appointed to the court because now one of his best friends would be his colleague. they also famously were able to
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disagree on substantive matters pretty well without getting personally annoyed with each other. they actually loved that sparring. but also, you know, justice brennan and justice scalia got along famously. i just remember seeing them come out of conference and just walk down the hall with their arms around each other, both of them rather on the short side. both about the same height and they'd be roaring with laughter over something that occurred in conference and justice stevens, likewise, i saw justice stevens at justice scalia's funeral recently and we talked a bit about how justice scalia and justice stevens were both passionate about administrative law and he said to me, you know, there wasn't very much that he wasn't passionate about and the two of them loved sparring over administrative law issues because no one else on the court cared. but the two of them, also sat next to each other on the bench
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because they were two apart the entire time they were there together so they always sat next to each other the way the court configures the seats on the bench. it's by seniority. and so oftentimes we would see them disappear because the chairs would swing back so the two of their heads would disappear from view and then you would hear this raucous aughter coming from behind the bench where they were sharing anecdotes or jokes about what was going on in court but i would also say that justice scalia had an amazing admiration for justice marshall. he would always come back and say that justice marshall was the only justice on the court that really had criminal justice experience, that had seen the unfairness that occurred within the criminal justice system. i don't know the extent to which that at all influenced justice scalia -- some of the outcomes in the criminal justice area. as mentioned before, he used
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textualism and originalism to enforce a lot of criminal justice rights that had been diluted. i don't know if justice marshall influenced him on that but he definitely influenced im on justice marshall's own experiences and finally i'll just say justice thomas and he - maybe john can speak to this more -- but justice thomas did a reading at justice scalia's funeral and also gave a beautiful tribute at the memorial service the following week, saying the two of them came from different places. he said, i came from an uneducated family, he came from a family of educators, but we met and we walked together for 25 years and he just had the whole room in tears with his recollection and the feeling of loss that you had about the loss that he was experiencing and felt he would experience going forward without his brother on the bench.
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so those are just some examples. mr. dasgupta: thank you, ms. myles. >> he was liked and respected by his colleagues. it was very evident but also emarkable when you think about how the supreme court got along in previous decades and iterations. chief justice rehnquist told me when he clerked in the 1950's, there were horrible animosities on the court, justices that didn't speak to each other. if you read "the brethren," he talks about how the court was in the 1970's and problems people had can collegiality so it was remarkable during his tenure on the court relations not just with justice scalia and colleagues but relations with members across the court were pretty good despite disagreements over legal issues. >> i don't have much to add to that. i disagree -- agree with it all and you've got my anecdote
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already and it shows the side of him that was important to see but i would add that this is another narrative that's pushed about the justice by some of his detractors, that he was mean, that he was tough, he was a bully, that he went after people in a mean way and so forth and you know like a lot of narratives, there are grains of truth in that in the sense that he was tough on arguments, not on people, but on arguments that he didn't accept and he wrote some tough things in his opinions but his ability to get along with people that he didn't agree with, i think is what is very remarkable and something that we should remember in these days where it seems like it's increasingly hard to get along with people that we don't agree with so he should be a model to us in his friendship with justice ginsberg and justice kagan in particular should be a model
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going forward. >> he was human and his ability to do that wasn't perfect. that sometimes took a while. after planned parenthood versus casey and the lack of logical reasoning in that opinion, holding a grudge is too long a word but three years later when i was on the court, we wrote the court skit at the end of the year that still reflected some of the tension that still lingered over that case. but he liked you to push back when he was sparring with you and i'll close with this anecdote. t's a tradition at the court that the justices would take the clerks from other chambers out for lunch at some point or what have you and he would always take the clerks to a.v.'s pizza and when he took the thomas clerks out my year, we went there and he would famously order pizza with anchovies and demand that everybody eat it and i wouldn't eat it and he said, eastman, real men would eat anchovies on the pizza and i said no a real man will say no if he doesn't like it even to a supreme court justice and he said,
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touche. and i think that's how he liked to live and why people thought highly of him and his collegiality. mr. dasgupta: thank you, all. now we have time for perhaps one or two questions if some interested members of our audience would volunteer. audience: i wanted to know what the justice's opinion was about the u.s.' leadership in international justice and specifically rule of law institutional like the international criminal court and whether he believed that this somehow infringed on our own constitutional framework. >> i think he saw the american
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constitution and the way that our founders did and the way many of our leading -- leaders over the years did which was a beacon on the hill that other eople should follow because it was so well designed and right but the notion that we would interpret provisions of our constitution by what some other court and the european human -- whatever -- it was bizarre to him and it really undermined any notion of sovereignty so he was probably one of the most vocal opponents of this notion f looking to other courts' decisions to infuse meaning back into our constitution. it was contrary, i think, to everything he understood, what the rule of law and originalism project that he was engaged in meant. >> i agree with that. but i think at the same time it's important to see the justice as having a real internationalist bent. he traveled widely. he talked to people around the world about legal issues and he was very interested in international matters but i think he wanted at the same
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time to be -- to be sure coming out of his rule of law orientation that embraces of internationalism by the united states were consistent with the constitution, so i think you have cases which you might perceive as being anti-internationalist, such as zien versus texas and shansheargo versus oregon. i don't think they were anti-internationalist in that sense. i think they were protective of u.s. constitution and u.s. sovereignty to engage with international institutions, they were not hostile to international institutions so i think he was something of a middle ground on that. he didn't fully embrace it because he understood there were constitutional restrictions on what we could do but he was also sensitive to international concerns in other areas. he was a leader on the court in thinking that other courts --
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sorry -- other country's interpretations of treaties should inform us as to what the treaty meant. now, as john says, he didn't carry that over to the constitution because the other courts that were interpreting their constitutional provisions were not interpreting our constitutional provisions so it doesn't make sense to rely there but in areas where there was a shared interpretive enterprise, where there is a common treaty, he was one of the leaders on the court saying we ought to take into account what other countries are doing. he was in his own since. >> we have time for one last question. i saw that hand go up first. >> how does justice scalia pro
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religious decision, with his decision in smith and oregon. >> that decision came down my erm. smith versus employment decision. what smith did most controversially is held where you have a generally applicable riminal law, that is in that case of law prohibiting the listing peyote as a controlled substance without an exception for religious use, there is not a need for the court to create a religious exception. that was essentially the
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holding of smith. it was perceived as being contrary to at least some precedents where it seemed as though there was an exception that administrative agency oling out unemployment benefits would have to take into account whether the person was fired or otherwise was not performing their duties because of a religious obligation. we grew up thinking that was an exception. the court held otherwise with smith. hat was a very controversial decision. i remember the petition for rehearing. you are quite right, you can say, how was that protecting religion? peyote, who really smokes that anyway? it is a small minority of people. the logic would allow a state
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to prohibit say drinking alcohol, as at least one state said that. kansas, is that still a dry state? with no exception for, to pick a topic near justice scalia's heart, the catholic mass where you are celebrating with wine. they would say, that is not ok and under smith, that would be fine. the protection against that lies in the political process. in the legislative process. with no exception for, to pick a topic near justice scalia's heart, the catholic mass where you are celebrating with wine. they would say, that is not ok and under smith, that would be fine. the protection against that lies in the political process. in the legislative process. he says this in smith. subsequently, the congress passed a law called the religious freedom restoration act that attempted to revive the doctrine. the court struck it down. in that case, justice scalia took on the historical
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case. ultimately saying the protection is with the people. the people are the ones that are making religious exemptions to otherwise generally applicable criminal laws. i don't see it as contrary to any personal belief of justice scalia. he was fully aware when smith came down its logic would apply to core, could be used to prohibit core religious activities. you name it, it could be the subject. i don't to get filing it, i don't to get was contrary to a iew he had otherwise expressed hat there needed -- if there was a law that was directed to religious activity such as no
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wine should be used in religious ceremonies, that would be prohibited. >> i've got a distinctly different view. y litigation head is the claremont institute, probably the leading proponent that the natural rights foundation and the declaration of independence has to inform our understanding of the constitution. this is one of those cases where the tension comes out most forcefully. think when you peel the onion layers away, it disagrees with other principles that justice scalia argued. he was a strong proponent that political process was sufficient to protect the federalism provisions.
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he opposed that. here in smith, he adopted political process accommodation. if you want an accommodation against the law, your remedy is through the political process. that turns the notion of the bill of rights upside down. they are there precisely to protect individuals, particularly minority individual groups against the majority harry and political process. if the only people that can get accommodation are those with support of the majority, it is no longer do any right. that closing paragraph, it eems that as the cost of democracy. i think it is a just law. it will be interesting to see, now that justice scalia is not there, whether there will be an attempt to revisit that question in a way that was not
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going to happen when he was there. >> my view is different than my fellow panelists. i think that although i was skeptical of the smith case when it came down, on further reflection, the historical case for the opposing side is somewhat a week. you can make big picture arguments. it is hard to identify of practice which granted these kinds of exemptions. there were some evidence for it. it is not overwhelming. if you have a view, which i think justice scalia did, notwithstanding his view of the importance of enforcing the constitution, that the courts should not enter mean --
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intervene unless it was confident it had the history behind it, there is a strong ambiguity. the opinion rest on that. the case for the other side is not proven. but this is on your list of cases where he comes out differently from where you think he would tend to come out. i think surely, of course he knew the applications of this. that gave him some positive it i wasn't there at the time but i have heard discussions of the case later. i think he did have some pause but he nonetheless thought that is where the constitution led us and therefore that is where he had to go. n this point, i will relate an anecdote. we were doing a panel.
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when someone asked him about the smith case, what would happen if congress passed a law that prohibited consumption of alcohol and didn't have an exception for catholic mass? scalia said, according to what i heard, they would burn in hell but it would still be constitutional. it is one of the hardest questions in constitutional law because the text does not give a clear answer whether the freedom of religious practice requires exemptions. it creates absolute language. congress shall make no law.
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there is no exception for compelling interests or anything like that. i can understand what justice scalia was comfortable with, the formalistic approach. it is a text phrased in bsolute terms. it is a way of being respectful to the fact that it is phased as a command rather than a balancing -- but it raises difficult questions. what about anti-discrimination laws and so forth? >> this concludes not just our event but the chapter, until all, 2016. thank you all for your generosity and support.
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please join me in thanking our panelists. [captioning performed by national captioning institute] [captions copyright national able satellite corp. 2016]
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>> hofse only person who thought this was possible essentially. the government didn't think this was going to happen. the company certainly didn't think it was going to happen. certainly the american people had no expectation that this was going to happen.
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so that idea that hoe was a little crazy, you had to be a little crazy to take this on. and he was the right kind of crazy. >> madam secretary, we proudly give 72 of our delegate votes to the next president of the united states. >> now a discussion about how
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icice recruits on line and how to interrupt their internet propaganda. the caucus advisory committee hosted this panel of national security and technology experts. this is an hour and 10 minutes. >> we would like to thank the cochairs. and senator john tune and patrick leahy for hosting us here today. we have the caucus host events every few weeks on salient topics to the internet and policy, and we invite you to come out. so today we have several excellent panelists with us today.
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and ve emle, rash add, seamus. my name is miranda. i'm a fellow at the internet law and policy foundry and we're a fellow at the congressional internet caucus in the past. so let's get staed. i will give a brief overview of the issue and then jump into it and get into what's the real issue here with extremists on line, what role did platforms like twitter, facebook, google play in this, and how -- what is the right way to be approaching the issue of dealing with extremist content on line and recruitment for terrorist groups abroad? so as you may have seen going
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on, we have the social media platforms like twitter and facebook have generally, especially in their early years, been quite in favor of leaving their platforms as places for free expression. they've been adamant supporters of that. but gradually, especially over the past few years, we've seen that being taken advantage of y groups like al-shabab in somalia, like al qaeda, and then we have the islamic state beginning to use the platforms even more actively than that, really bringing it to a totally different level. the platforms are facing pressure on multiple sides on government from governments here, to governments abroad to their users to do something more to take the content out of people's social scenes. it's not something you want to see every day but also it's not something that we want -- not something we want spreading around because it is generally
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effective in recruiting people to go abroad and join these causes. so why don't we turn to seamus. when did this start? how are the platforms being used? what are the groups doing? >> i think it started when the internet started. so in the early ages when we looked at terrorist groups on line it was on the password protector for yusms. then as the internet shifted over to more open platforms so did recruitment. so you look at the number of individuals arrested it's 895 individuals since march 2014 the average age is 26. so they're going on line where their demographic is sorks that tends to be twitter. we've seen a shift moving back over to telegram and other platforms but they clearly use the on line environment in a way that is conducive for them to recruit. think of it in three ways.
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grooming. so over the summer at george washington we did a 6-month study of isis recruits on line mostly focusing ong americans but also english language speakers. of tho you see them grooming on line. so we watch a young woman from the midwest who had questions about her faith and isis recruiter realized she was naive and was answering the questions in a very inknock yuss way. so a few weeks later he would lowly introduce the isis doctrine. then an individual from chicago, when he gets picked up him and his underaged siblings, 17-year-old and 16-year-old planning to go to join isis. when they arrested him they went through his stuff and realized he received four numbers to call through the contacts he made in twitter.
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it lowers the bar for an individual to meet a recruiter on line. then lastly is what the f.b.i. says the devil on the shoulder. now, putting all that in context you have to realize that the numbers pail in comparison to any other form of conversation on line. you're talking about 44,000 twitter accounts for isis supporters. the english language seen as anywhere between 1,000 and 3,000 accounts on line. some of them bots and some not but they're clearly using online environment. the last thing is it's not like twitter went away from we wouldn't have recruits joining. so the fact that there's a physical space there's this so-called califate that is a driver. twitter, tell gram places like that helps facilitate that recruitment. but they're not -- the reason why people decide to become radicalized and join groups like this. it allows for in the u.s. the people arrested communities
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don't radicalize in america. individuals do. we don't have these pockets like you had have in some european countries. here, if you're trying to find hat on line. >> tell us about how the department of justice is approaching and working to mbat >> it's a threat we take seriously. the first job is to protect the american people from attacks. what we're seeing isil do on line is use very sophisticated techniques. he tked about some of the approaches that they've used. they've also done something different that think previous groups in that they have adopted crowds sources model through which they encourage anyone, anywhere to go out and commit attacks against innocent people. so part of the challenge we face is we've got to be successful 100% of the time.
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isil is overwhelmingly rejected. they're recruitinging millions of people around the world. they reach out to an audience of 1.6 billion muslims and others. even if they are successful in the miniscule number of those cases you still have a problem of 20,000 foreign fighters. you still have a problem of isis getting followers all around the worl. they're very adept at using very techniques targeting audiences. what they've tried to do is reach out to disaffect ds youth and offer a sense of purpose, a sense of belonging. they use a combination of strength and warmth that they try to lure recruits with, a sense of camaraderie. and as twisted as it sounds they claim to be building something. so we've all seen the atrocity that is they've broadcast around the world. but they've also put out positive messaging. i've mentioned the themes of
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camaraderie and strength and warnltsdz. and they claim to be building something and they're calling people to build something. which is in their conception the califate. so one of the realization that is we have as government is that there are multiple audiences and we have to be smart about using 2 right messagers to reach the ride oughtions. so government isn't always going to be the right medgejer to reach the audiences. roughly speaking taking a look at the audience you have a class that are potentially thinking about joining isil in the short term. the immediate influners. then cult rar influencers. then a mass audience or general public. so government may be more effective in the prevention
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space and reaching out to people who haven't already bought into aspects of the propaganda or the ideology. but you really need specific audiences to reach, for example, the specific classes. who are they going to listen to? it's a question we think about. perhaps they will only listen to other extremists. and maybe those are extremists that are not violent but people that are extreme in their views that can persuade them to come back. that's not a role for the government to play. who is the best audience to reach out to cultural influencers? so what we've tried to do in government is where possible message ourselves as audiences we think we can reach. and some of the common themes we have used are to highlight isil's atrocities for muslim communities who they're killing in big numbers, amplifying the stories of people who have defected. high lighting their battlefield losses.
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they actually have territory which they can point to and say come and help us establish. so we point to the losses that they're taking particularly in iraq, in syria. and we've also tried to expose the living conditions. and defectors have done some of that under isil territories. and perhaps most importantly we think it's important to work not just government but with partners to dissemnailt positive messages. that make clear what the rest of us stand for. what the rest of the muslim communities stand for and to high light positive alternatives. so if someone says i really have a problem what's happening in syria under the bash ar regime and i want to do something about it we've got to find other paths for people to take that are constructive rather than destructive. >> so it sounds like we have the dual use of the internet both as a platform for recruitment but also for engagement on the other side. and we also see that the platforms are torn between taking down violent content and
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threatening content. and on one hand leaving it up for intelligence purposes and on the other hand trying to minimize what they're taking down. so that they don't have to be the ones judging what is appropriate content and what is not. can you tell us about the response we've seen from the companies and some of the concerns they might be considering when they're asked to comment on how to approach this issue? >> obviously over the past year-and-a-half -- can you hear me now? clearly over the past year-and-a-half we have seen a huge amount of scrutiny on major internet companies, the big social media platforms, about how are they responding to the existence of so-called extremist content on line. and it might help to describe just a little bit sort of the legal framework around speech on line. what is it that enabled the kind of exchange of
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information, expression of opinions that we all enjoyed. in the u.s. we've got both the strong protections of the first amendment for speech where we have very high standards for what is speech that the government can actually say is unlawful. kind of relevant issues in that context are is a comment a direct incitement to imminent lawless action or violence? is it a true threat of violence or intended violence against another individual? but we don't generally have broad prohibitions against hate speech. and there's certainly no kind of definition of extremist content as unlawful speech. so already we're sort of in an environment where what exactly are we talking about? what sort of speech and content are we talking about is unclear. what we've seen a lot of the
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companies do is in trying to apply their terms of service, which are kind of variable across platforms as ways to remove content that gets reported to them. so internet companies, hosts of our speech on line are generally protected from any legal liability for speech that they are not themselves the author of. this is section 230 of the communications act that ensures that if i, for example, tweet something defam tri, he can sue me of course because i'm the one who said the comment but he can't go and sue twitter about it. and this law has been incredibly important to the amazing innovation we've seen with the scombret and with online platforms and also to supporting speech on line. all of us depend on a number of different intermediaries being willing to host and trans mitt
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our speech. if you're isp or your social media provider could face legal liability for your speech, it would be very unlikely to be willing to let you to speak. so but also in that law companies are protected from liability for their decisions to remove the speech. this is where we see companies developing terms of service where they set out the standards for what kind of speech they'll accept on their platforms and what they will say is kind of a violation of their rules or standards. and so a lot of the platforms have rules about hate speech even though this is very often speech that's totally protected under the law in the u.s. they may still say that they don't want to host speech that is den grating other particular group or class. most of them have standards against direct threats or threats of violence. i believe facebook has a standard against dangerous organizations in particular.
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by which they tend to mean terrorist organizations or organized crime. so we've seen kind of a range of different kinds of terms grow up on different platforms over the years and companies then in response to kind of user flags about speech that appears to violate their terms will take a look at content and see does this seem to go too far? does this step over the line of what they've already described to be acceptable or not acceptable on their platforms. mention about the opportunity of the internet as a platform to spread various different types of speech, positive speech. to keep track of what's going on and sort of the desire to control this dangerous speech, the hate speech. what of you in the research arena how do you see that playing out? >> sure.
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so i'm kind of dual hatted on this one. we have a fellow who looked at accounts over a month period to figure out if takedown was effective or not. and here's the take away with a caveat. the takedown of accounts were effective in terms of reducing the number of follow overers when the person came back particularly on twitter. there's the first part. here's the second part that we should also keep in mind. there's a built-in system for resiliency in the the system. an individual like terrence mcneal who was arrestdz for terrorism related charges, he was lone wolf 7. by the time he was arrest ds he was lone wolf 21. he had been kicked off different times. every time he came back, there's an isis echo chamber that has shout out accounts. they build in resiliencey. everyone follow him. so there's a built-in system that says we know we're getting
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kicked off for violating terms of service but we're going to be able to help other people to make sure they get back on. from a researcher's perspective, we clearly want more data. it's clearly a balancing act on whether takedown is the necessary way. i tend to think that -- i tend to be more on the positive encounter and alternative messaging although there are some instances where i think it's warrented. >> we've been encouraged by companies enforcing their terms of service. and there's echo chambers out there in the violet nt extremism world where they're posting violent tweets and beheading videos. and not a lot of intelligence val in that echo chamber. where there may be some limited cases in which it can be helpful and there is some intelligence and that can become communicated to companies but for the most part
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i agree with his view on it. now, it's important again to remember that overwhelmingly isil's rejected around the world. and there's a reason for that. it's because of largely because of their own actions. and a lot of the atrocities that they're commiting, the stories that have been told by people that have been impacted by isil and other groups, the stories of defectors, all those are getting out through social media as well. and so -- i know we have perhaps thousands of a percent of people target ds have gone and joined. and that's unacceptably high for all of us. because we're trying to prevent any singling attack from ever happening. but it's important to remember hah these platforms also provide an opportunity to put on not just counter messaging but positive messaging that allows the rest of us, including muslim communities, to communicate what we stand for. >> and that's really the risk of the over broad content
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policy or particularly like increasing pressure on companies to strengthen their policies, make them so that more content can come down. is that it is this potentially vastly overbroad response to what ends up being, as the reach seems to indicate, it's a lot of one-on-one communications that end up driving the actual individual to commit an act of violence. and if you're trying to capture one-on-one highly tailored direct conversation with a policy that's about taking down all of the speech that's sort of in the general area of discussing isis and terrorism and u.s. foreign policy you're throwing out a whole lot of baby with very little bath water. >> so that's a good segue because we have had some pressure from the u.s.
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government to add additional liability force the platforms or at least to compel them to turn over certain information if they come across it or for government agencies to use certain information in their response. and we've also had more collaborative approaches between the administration and in california. what is your sense of the right way to approach this if the overbroad approach is just that? >> well, so there have been some proposals in congress that would try to require internet companies to report apparent terrorist activity to the government if they identify it. and this kind of proposal is pretty concerning. there's not -- in the particular bills that have been proposed there's no real definition of what terrorist activity might be. and what that sort of model would set up is basically a
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huge incentive for all of our communications providers to err on the side of caution in reporting their users to the government as a suspected terrorist or suspected to be involved with terrorist activity. i think the kind of the results of that would be a huge amount of overreporting which is both incredibly concerning for individuals' civil liberties, our right to privacy and our own communications and also not really generating useful information for lalmts. so i think it's very much more what rash add has been saying about the need to support the environment where the defectors or the journalist ors the advocates who are out there countering the message that isis presents and providing their own kind of positive viewpoints and positive ideas. we need to ensure that there are strong protection for free speech in place so that that
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can happen. we unfortunately see there's reports by the journalists about the way that anti-terrorism laws in egypt and turkey, countries that are allies in the fight against isis are also using those put errorism laws to journalists in jail. and that kind of overbroad approach that ends up constraining the speech of exactly those people that we need to get different viewpoints and different messages out there is a real risk. >> there's also kind of an interesting dynamic here because you think about the government's amazing ability for convening. so if i pick up the phone and call ten social media providers and get them in a room it's a hard pitch. if rashad does it it's a different pitch. i think back to my days in government i was in sacramento and talking to an i'men who
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wanted to do counter videos on line. i'm going to grab my phone record myself talking about how isis is wrong for the following reasons. that's great, sir. but no one is going to watch that. it's 10 minutes of you holding your phone. but here you have a guy whonts to do a messaging but no way how to do the platform, tag the videos so they pop up when the next video pops up. but the government has the ability to play the match maker in this situation that says we're not going to decide what the content is. we don't want to be near this thing. but here's somebody you may want to talk to. and that's how we've tried to use our convening role by bringing together the types of community leaders you mentioned. civil society, artists, people that are adept at using social media and the platform. advertising sector, silicon companies. after that our job is to stay in communication to some extent but realizing that the
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government is not the best messager in this space our job is to also step back and allow the creative people that know how to put out the best positive messaging and counter messaging to do their thing. and there is evidence to indicate that we're making steady progress in this area. you know, not only have the social media companies, we've had cooperative relationships and discussions with not only have we seen announcements and twitter's announcements that hey've taken down 125,000 isil affiliated accounts but we've sealing polling data that percentages are totally ruling out any ponalt of joining isil. there's a theory that said 80% of 18-24-year-olds in the arab world in 16 countries that were surveyed said they would never even consider yoining it. and if you were to do a pole of the disapproval rating of isil
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in many of these countries it's even higher. so a lot of attention is paid towards that the small percentage and deservedly so that has bought into that ideology but it's important to keep in mind that there's a lot of good work that's being done largely outside of government to make sure that those that might be susceptible to isil don't fall prey to their message. >> i think it's a very important point, too. because when you look at this we're talking about a manageable number. he f.b.i. talks about some 900,000 active investigations which looks large but from a messaging perspective you can tailor your message to those people. that's a manageable number. you can do one-on-one interventions on line. you're never going to be able to reradicalize or disengage someone on line but you might be able to introduce a seed of doubt. and then you can have a real life or off line conversation about how that person should come back in the fold. >> and reaching that right
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target audience is a challenge. now, if it is -- if the number s, which you've stated and we've talked about are possibly correct in terms of the number of people in the united states, that might be susceptible to isil's ideology you don't want to have a messaging campaign when you try to target that group that sends a message that somehow all muslim youth are vulnerable or just because muslim youth -- some might face discrimination, that means that they might be susceptible to violent extremism. that's not the case. muslim youth in the united states overwhelmingly are expelling in a number of fields. there's -- excelling in a number of fields at the same level or higher education level per capita higher income levels than their -- than people of other faiths. and so you don't want to have kind of a wun size fits all messaging approach to reach the
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audience that we've talked about. and if you look at the report in terms of the isil related arrests i believe there's a statistic that says that 40% of those that were arrested are recent converts. so sometimes there's a narrative out there that because there's youth that have grown up alienated, they're somehow muslim youth are generally susceptible or vulnerable to isil's recruitment. and the 40% of those that are recent converts they didn't even grow up in muslim communities as young muslims. so we have to be careful at how we message on this. because muslim americans sitting at their dinner table every night are talking about the same issues as all americans. just because they're muzz limit it's not the number one -- muslim it's not the number one conversation at the dinner table. in fact they're overwhesmingly rejecting the message that isil is putting out there born out by the data that we've seen.
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>> so messaging itself is one issue. like what do we say? but it sounds like targeting is equally as important. so is there a role for internet platforms to help in advising how to go about that targeting? or to prioritize certain content aggo ritsdzically? are we seeing anything in that direction? or is that from a speech perspective equally as problematic as taking down content? >> well, so some of the things that we've seen from a couple of the big social media platforms have been much less about actually kind of affecting the main kind of contonchte. whether it's -- content. whether it's a facebook or twitter or search results. they've been clear about not wanting to change that information kind of their core product because of pressure from governments. and i think that's the right call. i mean, that's the kind of
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overbearing government effect on the access to information and kind of what views and perspectives are out there that i think would really undermine a lot of the very good kind of counter narratives that we see coming out. what we've seen some companies do is kind of programs that they've had with nonprofits around like a number of different kinds of topics but really focusing in on the question of radicalization and extremism right now where in the kind of the advertising space that might appear alongside search engines or appear on your facebook page. kind of sponsoring different nonprofits to -- so that they can have the -- they can have their message show up kind of as aven ad alongside related content. i think there's still some question there about is this company getting too far into trying to promote certain ideas over others.
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we have this funny relationship with social media platforms where in a lot of ways we really like it when content that we care about is displayed to us and we don't want to see like 19 million baby photo fs that's not what we're into. but also, when it seems like companies are taking a nonneutral or very ideologically motivated position, that can also make people feel really uncomfortable. so i think a key part around all of this is transparnesies. people i think are particularly uncomfortable where it's not clear where the motivation is coming from or where kind of the -- how viewpoints are trying to be shaped. so the more that we can hear from the companies what are they doing, the more we can see kind of open public discussions about what government might be considering, what companies are considering. you know, as oppose ds to kind of closed door meetings where we only sort of get leaks of agendaings and bits and pieces of anonymous reports in the
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news. the more transparent we can be about how are things being worked out and what influences are there? i think the more comfortable a lot of people will be. >> there was a lot of talk not so recentsly but before when the platform seemed to be doing a little bit less to combat that maybe they were actually helping but didn't want to talk about it two reasons you don't want to show your cards to the people who are trying to game the system and put that content up. and, two, that cooperating with the government especially post the snowden revelations was not necessarily desireable for the users. and my sense is that we've seen a shift and users are wanting to see more of that. is that something you've seen? and do you think that trend of sort of trying to keep a distance will start to evolve away from that and to see more public cooperation? or do you see that continuing? >> i mean, i come back to the
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point about transparency. i think one take away we can have from the snowden revelations is that when people finally -- you don't want to surprise people with the scope of what's going on. that that creates a really strong backlash. and it's our right as citizens to know how is our government affecting the -- our environment for speech? how is our government influencing what access to information in kind of in public do we have? so having these conversations more publicly is really important. which is not to say that necessarily we want really close coordination between governments and companies on this. i mean, very much for the point is really glad to hear you talk about that sort of recognition when government needs to step back because the worst thing would be to undermine the efforts of the people providing alternative viewpoints because those people are sort of cast as being too close to the u.s.
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government. >> i understand the sensitivities of you mentioned, but at the same time, social media companies are very clear about the fact that they do not want to have their platforms been used by terrorists to spread their message, so there is a lot of basis for cooperation. we are seeing progress in that area, and i think the trend is headed in the right direction you mentioned. >> given these sensitivities in the sort of overbroad approaches we think might not be the right way, what would be helpful from companies from simple society, from the american society to helping combat this content in the right and smart way? hangingnk there is low fruit on this. woman to that a report on isis in america, we talked to a ,umber of community members
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religious leaders and they said, listen, if i want to get on there, i went to engage, talk to a kid i am worried about and bring them back, but i am worried if i do, i'll get secondary report for engaging with a terrorist. i think there is some level the department of justice or other organizations could provide. at least policy and legal guidance for what is acceptable online. broad -- the charges very broad. i agree with these individuals but i understand the risk and i understand the transparency, but to ask somebody from middle america who wants the kind of understand this new ones without t and thehe righ attitude. that is something i think the government could provide relatively easily. >> i think one contribution that companies can make in all of this, in addition to all the isk they are already doing,
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even more improvement in appeals processes for when people have their content come down over there county activated because we know they are focusing on trying to enforce their turns consistently and mistakes happen. of content scale that gets posted and reviewed by companies every day is enormous. there are always going to be the 10 or 15 seconds of human review that makes the decision that an accoun should come down, errors too far on the side of takedown and you might be losing really important countering voices in that kind of process. assuring that there are ways that people -- and generally in the way that we look at now content policies are enforced on platforms -- to make sure there looked at not just with an eye on how to keep the most extreme or violent content also on the platform -- off the platform,
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but make sure that space for discussion and debate about that content and about these issues more generally can still persist. >> we can look into providing additional guidance to what is there for those that are doing the work of counter messaging and in a position where they are doing counter messaging and they have to be concerned about the accused providing material support. examplest all of those on a case-by-case basis. it is clear in cases where someone is out there and they're trying to did the good work of countering the message rather than supporting what isis says. >> we are on a tight schedule, so i want to open it up to questions so all the panelists have a chance to address them and then we have to run out, but if we have final questions, we can keep the remaining panelists. anyone have anything they would like to ask? no.
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well, [laughter] one other question i had is, you know, there have been several lawsuits against the platforms for hosting this content, which they are immune to under the law, but can you explain a little bit more about -- do you think those cases will go anywhere? do you think they are people just jumping on the topic of the day? >> generally, the law is pretty clear. there is no strong protection against holding platforms civilly liable for speech that their users post. i think there have been a few cases where people are seeking damages for the death of a loved one that they tried to ultimately tie back to content that have been posted on the social media network. of course, it is always a really heartbreaking story and you can understand why a person is sort
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of trying to find some sort of restitution, but i think we need to be very careful about how broadly we would scope kind of the death ofuse of somebody in a terrorist act, and platforms tend to be swept under a broad liability for actions and steps removed from anything they did. it will ultimately not sexy. >> i know the justice department has played with the idea of going after people who up share the content. is that something you continue you approaching the people who are not the recruiters but they are supporting it and sharing it? >> our approach is governed by the first amendment. there is a lot of speech that is notected speech but we are prosecuting those cases.
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the cases that could be prosecuted are ones in which there has been specific threats or solicitation of crimes against particular individuals. wasink one of the cases referenced from ohio, the mcneil case, but those are the types we talk about. in a fewe to wrap up minutes, so given that this is end important issue because it is affecting lives, even on whatever scale it is happening, it is very distressing to the public and the platforms we are having to deal with this and everyone working in it, what you think the most important thing for congress to take away from this issue is moving forward as they think about how to legislate or hold off on legislating for asking the companies for help with it and maybe on the flipside, and the other parties themselves -- what do think is the most important thing we should be doing to continue the
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trend of individuals rejecting the message that isis is spreading online? >> it is very clear that we will not kill our way out of this so we need to continue reaching the right audiences through the right messengers, and that requires not just the government, but the whole regent of actors. i think we have put into place now at the government level and working with a number of mechanisms in society by which we can get out the right counter messaging, the right positive messaging and the right positive alternative for young people. as i spoke about in the beginning, young people may be disaffected for some reason and they may see things happening on the other side of the world and they view it as injustice, atrocity against all people, and they say they cannot sit still and they have to do something about it, so we have to work together to find those mechanisms for that small segment of the population that attracted to the isis
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message, and keep in mind that the isis message is overwhelmingly rejected. we do not want to be reaching out in the name of reaching targeted communities with overbroad tactics or messages that could paint entire groups of vulnerable or as a problem when we are trying to reach and prevent a space in general audiences that we are trying to reach through, perhaps a set of those actors or a different set of those factors. say for congress and everyone to remember that the u.s. will be watched very closely for our responses to all of this. kind of the standard and not the we set can do either of a lot of good or a lot of harm, so if we can keep it on the side of good and show that there are ways to
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pursue this fight against isis that don't involve broad-based censorship, that does not tried to play waccamaw with extremist content online, that are actively trying to avoid the stigmatizing effect of muslim communities and instead focus on showing how truly supporting our fundamental values and freedom of speech and the right to privacy can actually help us succeed in the fight. i think that is ultimately at the message for what does it to connect this fight from a position of democratic ideals will be much more convincing than an approach that kind of is motivated by fear, looks to crack down on more speech and put many more people under scrutiny by the government. >> i think it will be contrarian for the sick of conversation. [laughter] -- i think i will be contrary and for the sake of conversation. [laughter]
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terms of shaming, you do see action, so i do not believe there would be a summit given by the white house if it were not for congress constantly hammering social media companies to deal with the content. it is almost a force function. reason why youtube has a flagging the terrorist content because for two years, they got beat up on a hill about 50 euros of u.s. soldiers being killed that were posted by at baghdad sniper, so it is a balancing act. i understand free speech and free expression issues, but congress can play a role in its, as uncomfortable as it is. aredefault social companies very libertarian, but there is a balancing act between the family members we talked about in the lawsuit and the free conversation online. i am being contrarian to be contrarian though. >> in the last questions?
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question from the audience. i wanted to press upon the importance of counter messaging and the content. is there any way of measuring the success of that in terms of you can see that someone is of contentthis type but translating that's off-line behavior and being able to instantly correlate that god is actually proving to be de-radicalized? and is itte that actually proven to be the radical i seen? e de-radicalized? >> i will start. in the u.k., they did a small sample size with 14 people were they did direct online one-on-one disengagement but that is a small sample size. it is very labor intensive to do that cap a thing. in terms of broad-based messaging and how you measure that, it is very difficult.
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don't domeasured, drugs, see something, say something? it is a very difficult dynamic. >> it is difficult to prove a negative. after the messaging, who would have gone into violent extremism and it would not have, but there is data out there. the types of messages that tend to resonate and get traction. the stories that defectors, family members, data indicating that some of the best intervenors are family members, and particularly mothers. and iis polling data, mention the poll indicating that 80% of arab youths between 18 and 24 would never consider joining isil. just one year prior when the same poll was taken, the number was 60%, so you do see trends in some of the polling and we are able to measure what types of messages, and they are often not
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covered messages but -- not government messages but messages picking up traction. at the end of the day, finding the right metrics has its challenges. that does mean that there are metrics that we should consider to develop and the use of data as we engage in what we are doing. i think it is important to make sure that you have empirical research, particularly in the area of intervention because you do get a sense of what type of tools and strategies work and what types do not. some of that we have seen from the work that is then in europe and other places. as government, we try to draw on some of those studies that have been done by groups. for example, in germany and others that are operating their space. we had examples of programs that have parked and examples of programs that have not worked. we try to draw from the best.
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have to rent, soak sorry about that but we will keep questions going for the other panelists. >> given that the numbers are so andl in the united states there was a law last week that [indiscernible] given the concern that we do not want to create the illusion that muslim youths are at risk because they are not, but when the focus is on violence or violent extremism or isil -inspired violence, doesn't that becausecreate that you're looking at one slice of violence in the united states went overwhelmingly the violence committed in the united states is not inspired by isil?
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white separate it out? it seems like the indicators toward violence are sort of the same thing -- alienation, frustration, you know, the general thing that drives people to commit violence. essay that is a fantastic point and it has been one of the critiques of kind of the countering violent extremism frame on some of the government's work in this area because there is sort of this back and forth between are we talking about all violent extremism? are we talking about all of the threads domestically to violence against civilians or are we really talking about anti-radicalization or people who might be recruits to isis? i think it is very clear that people notice that sort of shifting of target and i encourage the government to be a
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lot clearer about what is the focus. if there are more significant threats in the united states to the safety of our civilian population from people who have really nothing to do it isis, prior ties in focusing on that would be very important. >> i do not think it should be a neither or situation. when the u.s. released their strategy, they said they would talk about all forms of extremist in theory. in practice, they focus primarily on isis-inspired terrorism. you should be worried as much with the dylann roof's of the world, especially with intervention. we look at all forms of extremist. we are looking at this exact issue. , we will have a paper that looks at white supremacist
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online versus isis supporters online and how what they talk about is different and the similar the followers like, so we can have a conversation about extremism and how to focus the research on these types of things. i hate to do the numbers on who has been killed and it becomes a neither or conversation and i would rather not do that because of you talk about the families and what they have lost. when we talk about jihad is a and white supremacist, the numbers are pretty similar but they are very small it looked at the general population of violence in the u.s. one question is about faulty them, specifically with american users or american content. over the past five years, has the isis traffic gone up, down or is there a way to measure that? if there's not the way, is there
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a way to do that? when takedown efforts or campaigns from the government either funding organizations are convening the organizations on how to do it takedown, when does this become -- i am sorry. i reversed that question. when the government is funding organizations to participate or who leave civil society campaigns to take down content, is there guidance to how the campaigns are run to target terrorist content? on counter messaging, what are your thoughts are on government, can be named the conversations with tech companies and funding organizations to do counter point is thatwhat the company domestic propaganda campaign to influence religious views or foreign-policy views? want?ch one do you
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>> i will do takedown. it is an excellent point that you raise. i think an instructive example is what is going on in the united kingdom and they have these programs called internet referral units, which are one step further than your hypo nonprofits, where members of the government, the metropolitan police and the united kingdom, chief law-enforcement body, who as a unit, dedicated to going on social media platforms, identifying contents that they want to see come down and figuring out which of the platforms, in terms of service it violates and fly can it to the platforms for their review so that it sort of is this thing, well, it is the platform that is making the decision but we are just telling them it
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violates their terms of service. we think there is a huge concern without approach. this is a form of government program seeking to have certain content removed from the web, and because companies terms of service can be much more restrictive than what government can actually go after under the law, it is a way for governments to kind of succeed in getting content taken down that they would not actually be able to go after through a port. even when you kind of expand that out the step and say, governments are funding and incentivizing private parties to do this kind of fighting, you still end up back at the question of government action, so when you have got government identifying particularly kinds of content, speakers and trying to restrict that, even through the somewhat [indiscernible] means, in the u.s., that would raise major first amendment issues. >> i will take the first one,
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the increase of isis use on social media comparatively to other terrorist organizations. thatnk it is clear to see isis has been very adept to using social media. i say that between 4000 new videos the year, so they go on twitter, telegram, various forms thechannels depending on day. i am on 50 telegram isis channels or not, sorry. [laughter] there are different ways to view entry points. think of it as the democratization of agreement. there are three girls from denver, a 17-year-old, 16-year-old and six-year-old who jumped on a plane, bound to turkey in the crossed to syria. they got picked up in frankfurt because their father called every phone number and phone book to phone in fbi agent. how did they figure out how to
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do all that? r page withn to tumbl step-by-step direction on what to say to customs and what to do when they got to turkey, so it a 17-year-old for from denver to figure out how to make the next step. people will always figure that out, but it still allows for an ability they do not have before and interactivity they did not have really i could have a with e that i would not be able to havem five years ago because i know who she is on twitterma. similar to i could have a fight with foreign fighters and asked them everything i need to know in terms of what do i bring? what do i not bring and who do i talk to? concerning from that perspective. isis has allowed for those who -- it is necessarily making it easy of use in a way that i think is concerning.
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i will leave it there. charlie winter at georgia state university does really good work at looking at isis propaganda online and you might want to look at his recent reports but i will get back to you if you give me a card. >> [indiscernible] i was wondering if you could talk about what is a red flag and what is overreach and what should not be checked out? >> it is a great question. seamusd love to hear from on high you for them to, but the concern that we see is that it sort of depends on which government officials you are talking to. are you talking to someone from the u.s., u.k. or europe? you can hear everything from somebody planning a specific
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attack to clearly something that would be unlawful to something that is just general prices propaganda. you have heard references to videos that are about -- not about inspiring any specific violence, but talking about how great life is in the caliphate and what economic opportunities there are other sorted -- it is sort of these views that are disagreeable or flat-out wrong or just untrue, but it is not anything that falls under kind of traditionally what we consider unlawful speech. it is much more in the kind of building up people's kind of isis, sofeelings about when you see conversation sliding back and forth with, doing what to stop commission of violence or do we want to convince people -- convince people that they are wrong to
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think in a certain way? where it isadder trying to convince people that they have the wrong view or ideas that i do not think should be the goal in any of the programs because i do not think it will work. stopping people from committing acts of violence is an appropriate goal, but trying to win people over to think to a ortain sort of values beliefs i think is a losing proposition. >> this is also one of the reasons people brought up wide cap forms to not put in an algorithm like they do for child pornography, and answer being that it is so subjective, every piece of propaganda, extremist content, it is a scale that you have to really look at each piece of content individually. technically, when companies are filtering for child pornography or child to use imagery, what they are doing is comparing hashes of known images
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of that material to things that are uploaded to their own server, so they can see, is thatody -- is this file one of the users are trying to upload, does it match the something we already know about not one to have in our platform? that is a kind of image matching that is very different from the subjective assessment date today of hundreds of thousands of pieces of content that could run threating from a direct to somebody, a stupid joke between friends, a thoughtful ideas thatabout the isis is putting forward or an invitation or instructions on how to come to turkey, it is the huge range of content that gets swept up. they kind of defies that easy algorithmic assessment. >> have you defined the bucket?
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we talk about isis, i think it is important to talk about the spectrum. on one side, you have something like a 17-year-old tweeting to followers about how great isis is and drives his best friend to join isis break that is -- isis. he went to jail for material support. example, another american becomes a mid-level commander and that is isis in america, but there are two different extremes on that. a kid tweeting it and a guy running the battalion, so when we scoped out the report, we looked at mostly sit. looked at mostly in metro support in connection with isis. in terms of extremist content, we look at notes. if someone is tweeting one father, sure, yes, i guess they are an isis supporter but i am
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less interested if there tweeting to seven or eight that are pushing up new and interesting content that i had not seen before. if they're connected to them or if they are talking and saying, let's talk on dm, that is where i become more interested. not just the speech but the connection. >> a little bit more about the who rather than the what? >> yes. >> any other last questions? i will wait for the microphone. ofmocking are making fun information, for example, the men seem to be guys to cannot get a date except by kidnapping them. i would think that there would make fun ofroom to some of the things they do. you cannot make a lot of fun out of putting them in context, these do seem to be
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guys who cannot get a date. >> alternate approaches. >> this is an important question, what kind of counter messaging will be affected? >> as opposed to countering. >> writes, and this is what kind orthe term counter speech counter narrative messaging really falls upon because what we're talking about our people sharing their views, sharing .heir ideas there is definitely a role for that, too. >> it sends an interesting message that isil is absurd. >> i would hesitate and what terms makes sense to us, so if
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of mocking the data in thatn that wretched thousands of times. everybody in the media gets all this but it cannot get any residency in the echo chamber we are looking at. >> [indiscernible] >> which is english language supporters online. they tend to have to run the data a little more and we are doing a collection now, but they tend to care more about people that stand up and say, i was wrong, they tend to get really angry about that want to counteract that. the administration talked about the losses of territory

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