updated 1/28/2013 11:21:38 AM ET 2013-01-28T16:21:38

UP WITH CHRIS HAYES
January 26, 2013

Guests: Frances Beinecke, Ta-Nehisi Coates, Phaedra Ellis-Lamkins, Paul Bledsoe, Mary Ann Easterling, Kevin Turner, Dr. Teena Shetty, Mike Pesca, Taren Stinebrickner-Kauffman, Susan Crawford, Lawrence Lessig

CHRIS HAYES, MSNBC ANCHOR: Good Morning from New York. I`m Chris Hayes.

In his weekly address this morning, President Obama urged the Senate to
confirm his appointments of Mary Jo White to head the Securities and
Exchange Commission and Richard Cordray to head the Consumer Financial
Protection Bureau.

And in Bangladesh, police say a fire in a garment factory has killed six
female workers and injured another five. That`s just months after more
than 100 people died in another factory fire there.

First, my story of the week, hope and climate change. I will admit, as I
watch the president`s inaugural address on Monday morning, I was definitely
not expecting this.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: We will respond to the
threat of climate change knowing that the failure to do so would betray our
children and future generations.

(APPLAUSE)

OBAMA: Some may still deny the overwhelming judgment of science, but none
can avoid the devastating impact of raging fires and crippling drought and
more powerful storms. The path toward sustainable energy sources will be
long and sometimes difficult. But America cannot resist this transition.
We must lead it.

(END VIDEO CLIP)

HAYES: You`ll recall with the exception of a single line in his DNC
speech, our current state of climate peril was barely mentioned in the
campaign. In fact, it was the first time in 24 years it was never raised
at any of the debates. So, I was not the only commentator who was
surprised to find such a passionate, lengthy passage in his speech.

A speech, of course, is just that. And often, we have a tendency to
overestimate just how much presidential rhetoric can accomplish. But right
after the speech, the "New York Times" ran an article with the headline,
"Speech Gives Climate Goal Center Stage." "President Obama made addressing
climate change the most prominent policy vow of his second inauguration
address," reported the "Times."

Setting in motion what Democrats say will be a deliberately pace, but
aggressive campaign built around the use of his executive powers to
sidestep Congressional opposition. Libertarian author, Gene Healy, has
coined the term "cult of the presidency" to refer to our cultural
investment in the idea of the president as a kind of a quasi-monarchal
figure near (INAUDIBLE) Colossus who docked the stride or system of
government directing the nation`s attention and resources at a whim.

And in the sphere of national security, that is increasingly what we
actually have. But when it comes to domestic and economic policy, the
president isn`t really the most pressing issue.

If you were to start listing the obstacles to climate progress in order,
you`ve start with the major fossil fuel companies themselves then you go to
the conservative noise machine (ph) that has converted climate change into
a cultural war issue.

Another example of out of touch at least, trying to tell you what to do,
and then the House Republican caucus which almost unanimously committed to
the most deprave kind of denialism, and then Senate Republicans who manage
to kill the last big climate bill, and then Democrats from cold country and
other regions that depend on fossil fuel extraction, and then Democrats who
say they care about climate change but wouldn`t go along with the kind of
reform that filibuster that would make a Senate climate bill a reality.

And only after that, you would get to President Barack Obama. For this
reason, it is somewhat per verse to focus discussions of climate policy
exclusively on the president. But Barack Obama is also the most powerful
person in the world who says he`s committed to averting climate disaster
and with acknowledging that comes some responsibilities.

It turns out that even short of Congressional action, there are a number of
extremely significant things the executive branch could do to reduce
emissions, develop alternatives, and move us closer to the radical
generative transformation of our industrial life we must have very, very,
very soon.

The Environmental Protection Agency has the legal authority to begin
regulating carbon under the Clean Air Act. No need for Congressional
approval. The executive branch is such a massive purchaser of energy
vehicles and equipment. It could use that purchasing power to create new
vibrant markets for clean energy.

And the White House currently has the authority to block the Keystone XL
Pipeline which would pipe extremely carbon intensive tar sands oil from
Canada to refineries in Texas. If that pipeline is built, it means a huge
new source of emissions out into the foreseeable future. The cliche about
second presidential terms, one which I think a good deal of truth to it, is
that in the second term, a president`s attention turns to leaving a legacy.

And I am almost certain that 50 or 100 years from now, the only issue that
will really matter to people is what we did about the climate.

Right now, I am joined by Phaedra Ellis-Lamkins, chief executive officer of
the green jobs advocacy group, Green for All, Paul Bledsoe, former
communications director from the Clinton White House climate change task
force, now president of Bledsoe and Associates, a strategic public policy
term, Frances Beinecke, president of the Natural Resources Defense Council,
and Ta-Nehisi Coates, senior editor at "The Atlantic" magazine. It`s great
to have you all here.

(CROSSTALK)

HAYES: So, there was a lot -- I mean, I thought that portion of the speech
was surprising. Were you surprised?

FRANCES BEINECKE, NATURAL RESOURCES DEFENSE COUNCIL: Surprised and
excited.

HAYES: Yes.

BEINECKE: It was, I think, something we`ve been hoping for to get the
president`s commitment. He made -- he made it very strongly. This was not
a one line or two words climate change. Eight sentences, policy,
commitment.

HAYES: You`re counting the sentences there, that`s --

BEINECKE: Well, no longer counting the words. That`s progress.

(LAUGHTER)

BEINECKE: We`re counting the words for four years, now we`re onto -- I
think what was a very bold commitment on his part, and you know, if you
were there, and I know Phaedra was there, Paul probably was, maybe you were
as well, the cheer just rippled down the entire mall. I mean, this was not
--

(CROSSTALK)

HAYES: Well, and only those were the people who determined the future of
our climate policy.

BEINECKE: That`s true, except they`re the base. And I think you have to
move from the base out.

HAYES: I want to get to a series of sort of substantive issues about what
exactly -- I mean, when we get to brass tacks about what the president can
do. And we know the Republican House isn`t just -- isn`t going to vote for
anything.

(CROSSTALK)

HAYES: Before we get to that, though, one of the things you hear from
advocates a lot on climate and a lot of other things is like he needs to
use the bully pulpit. Like, he needs to get out there and talk about it
explicitly. And Ta-Nehisi, you`re someone I think who thinks that the
effect of rhetoric among the sort of cult of the savvy cynical (ph)
journalist is underestimated. That actually rhetoric can actually move
things.

TA-NEHISI COATES, THEATLANTIC.COM: Yes, -- no, I mean, there`s a lot of
research out there that shows that you can`t get up and give a speech and
that will then guarantee that`s something will be passed. That`s not how
rhetoric works. But I`ll tell you this. I live in New York City.

We have experienced, since I`ve been here, a blackout in 2004, two
hurricanes, power issues every time. Last time this happened, I had this
great haunting feeling that, OK, this is just the way things are going to
be. Nothing is actually going to happen. And I`m -- you know, I`m part of
that base, right?

I`ll throw my biases out there. A kind of cynicism creeps in, you know?
And so, when you hear like the president get up and say something like
that, you know (INAUDIBLE) OK, I can do something about this, maybe we can
actually do something. I think people underestimate how presidential
science just depresses the base, then you get to this kind of cynicism and
you say, well, the process can`t do anything --

HAYES: Right. So, it`s about -- it`s actually the president -- in fact,
the president`s rhetoric isn`t persuasion, because actually, the evidence -
-

COATES: No, I think persuasion is way overstated.

HAYES: Yes, exactly. He can`t actually bring people around.

COATES: Right, right. No.

HAYES: It`s actually kust keeping the energy and investment --

(CROSSTALK)

BEINECKE: I think it really does motivate people because they know he`s
going to lead. They`re going to come behind.

HAYES: Do you feel that way, Phaedra?

PHAEDRA ELLIS-LAMKINS, GREEN FOR ALL: Yes. I guess, I`m not as excited
about the speech. I`m really more excited about action and how people`s
lives change.

HAYES: Right, right.

ELLIS-LAMKINS: And so, if there were incredible support for the
administrator, Lisa Jackson, if we`d seen some new standards around air or
water, in some ways, if his speech had said, I`m going to use executive
power, I`m going to support this type of leader in environmental protection
agency, I think that would have been a greater sign of change.

I actually feel like we`ve been living off rhetoric, not living off change.
And so, I think the base was excited to hear it, but I think part of what I
think the -- I think the political establishment will better understand is
that rhetoric got him re-elected with the guarantee that there would be
some action.

COATES: OK. Now, can I put out a really, really just dumb question here
to the panel, and that is, the thing you just listed, why did that not
happen in the first time?

PAUL BLEDSOE, BLEDSOE & ASSOCIATES: Well, some of it did.

HAYES: Yes.

BLEDSOE: The president promulgated regulations on future power plants
limiting the emissions that they could put out.

HAYES: And they`re quite stringent.

BLEDSOE: Passed the strongest fuel economy standards in history, doubling
American fuel economy, but Chris, my view is the president has a massive
political opportunity because of climate change impacts.

People now are feeling that in their lives, in their neighborhoods, and in
their livelihoods, expecting our economy already, major insurance study
show this, but when I was working for President Clinton, we had to talk
about climate change in future tense. Now, President Obama can talk about
it in present tense, and that`s a huge political opportunities. So, all
the difference in the world.

HAYES: I thought that was one of the most significant things about him
talking about this storms and fires, because to me, the only hope we have
and it`s a bizarre grim hope is that, actually, the effects of climate
change are happening faster than people anticipated, and because they`re
happening faster than people anticipated, they are happening now and we are
seeing them and is now a tangible thing that we could confront as opposed
to our grandchildren who no one really cares --

BLEDSOE: And this is an opportunity to bring the country together over
this issue. Why the issue has become partisan? It`s very complicated.
Part of it is political opportunity. What has --

HAYES: It`s not that complicated.

BLEDSOE: Yes, well --

(LAUGHTER)

BLEDSOE: Actually, it is really complicated because what happened was the
administration came up with a cap and trade proposal before the great
recession happened.

HAYES: Right.

BLEDSOE: And then they stuck with it even in the face of the worst economy
in 75 years. That was a political mistake. The reason was it radicalized
everybody against us.

HAYES: I think that`s totally wrong.

BLEDSOE: They could have passed a clean energy standard in the Senate. It
went begging. It could have been on the books right now. It could have
had a massive effect, but the over -- I think the president overreached in
trying to push through a tax in the middle of the worst economy.

And what it did was it radicalized the Republicans and made them see
political opportunity. Now, I think the pendulum can swing back, but it`s
important to recognize that there`s a lot of work to do out --

HAYES: Actually, can I just --

ELLIS-LAMKINS: That`s a different senator conference than I remember as
someone who worked on clean energy standards. We must have been talking to
different people. So, I think we all had the same conclusion that we
should be doing clean energy standards, that there was something different.
And I think it`s important to just say, there wasn`t enough capacity.

We all tried really hard. We invested. We learned some lessons. We
wished the president would have been, I think, stronger, but I think he
did, I think, to the extent he could. But I think it was a bad Congress
and a bad Senate who didn`t take leadership, and we shouldn`t pretend it
was anything but the most insane group of people that we`d ever seen --

BLEDSOE: Sometimes, half a loaf is more important --

(CROSSTALK)

HAYES: No, let me say one last thing. I think it`s morally perverse to
exculpate someone like Lindsey Graham who should know better, who says the
climate change is happening, who said he was for cap and trade, and then
who saw a political opportunity to stick a knife in it.

(CROSSTALK)


HAYES: Hold that thought for one second. I want to come back to the gap
between rhetoric and reality right after we take a quick break.

(COMMERCIAL BREAK)

HAYES: Frances, you`re going to make a point before --

BEINECKE: No. The point I was going to make is that I think it`s important
to look ahead at what we can get done. We know what we weren`t able to get
done. So, now, we have to look at what we can get done. I thought in your
lead-in you identified it. The president not only does he need to lead,
but he needs to demand action and get action, using his executive authority
through EPA.

There`s a pathway to actually get on a serious reduction in climate
emissions which will, in the end, affect people on the ground. And we need
to get that done.

HAYES: OK. So, hold your thought on EPA, because before we get to EPA,
the first test I feel like of the rhetoric reality is the keystone decision
which was punted until after the election. Keystone, incredibly --
incredible political mobilization about this issue which, I think, a year
and a half ago was totally obscure and then actually became a political
issue because activists mobilized around it.

They mobilized around it. They made it very difficult to just go make this
a kind of behind-the-scenes deal that the state department signed off on.
The state department has to sign off on it because it crosses international
boundaries which means the president has the authority to block it or give
it the OK.

Nebraska Republican governor who is giving some bipartisan cover to
opposition to it has now approved a new proposed route for it that he says
preserves the aquifer that is in the state of Nebraska. The big question
to me is, can we take seriously the president`s commitment if he allows
Keystone to go forward? How much is that this defining --

BLEDSOE: It`s important to differentiate between approving Keystone and
whether the oil sands will be developed. Here`s the problem --

HAYES: The oil sand -- let me just explain for folks. It`s very thick and
dirty energy in Alberta. Just so people know, production emissions from
Canada oil sands 134 percent higher than emissions from domestic crude oil,
100 percent higher than emissions --

BLEDSOE: That`s in production. Well to wheels, it`s about 5 to 15 percent
--

HAYES: Right. Right. Once you --

BLEDSOE: But here`s the key to understand, the price of oil is $95 a
barrel today. The production cost of oil sands is less than $50. Here`s
the truth, it`s a sad truth, but it`s the truth. These are going to be
developed. Now, we`ve got to figure out a bigger way to get in front of
climate.

Keystone is not the sine qua non of climate protection. It`s not. The oil
sands are going to be developed. Now, I`m not urging that the president
approve the pipeline. What I`m saying is, we need bigger solutions than
one pipeline. That`s not going to get it done.

BEINECKE: So, I disagree with Paul. I think Keystone is very important.
It`s a very important symbol that the president can make. Is it in the
national interest or not to bring down dirty tar sands oil from Canada so
that it can be exported to another country, which is the intent? It is not
in the national interest.

The whole point of the president`s comment at the inaugural is we need to
get on a new path in our energy future. We need one that`s cleaner. He
said it may be hard, but we have to do it. So, it may be hard for him to
turn down the Keystone pipeline. He should turn it down, and we should get
on a clean energy pathway.

ELLIS-LAMKINS: Yes. To me the answer is undoubtedly, unequivocally, if he
supports it, he`s not authentic on climate. I love the president. I voted
for the president. But Keystone is wrong. It`s putting tar in the ground.
The people that are impacted are people of color, Native Americans. You
know, I completely disagree. I just --

BLEDSOE: So, you don`t agree with the economics of tar sands that when
there`s a $50 a barrel profit to be made, they`re not going to be
developed?

ELLIS-LAMKINS: Here`s what I think, I think --

(CROSSTALK)

ELLIS-LAMKINS: I just want to say this really quickly. I think the people
that pay the cost, I hope that the president is going to say, the people
that will end up paying the cost of that, the people that will see the
consequences of storm in the Rockaways, the people that will actually near
the tar, that it`s not OK --

(CROSSTALK)

HAYES: OK. But I want to make a meta point about arguments from
inevitability, which is a kind of argument that you just made that you see
a lot in climate discussions which is, this is going to happen because
there`s overwhelming economic logic behind it. I don`t think that`s a
ridiculous argument.

But I mean, there`s a certain circularity of that, right? Everyone said,
Keystone was going to be approved. That was a done deal, except it wasn`t
because activists spoke up. And then you say, well, if Keystone`s blocked,
they`re going to find a way to get it out of the country because of
economic incentives, but there`s a lot of Canadian activists who are going
to go crazy about building a port on the Pacific Coast --

BLEDSOE: I`m not advocating one way or the other.

(CROSSTALK)

BLEDSOE: What I`m saying is that we need bigger solutions. We need to
price carbon so that -- so that the economics of the oil sands don`t work.
That`s the bigger solution.

HAYES: That I agree with. The problem is, pricing carbon is going to
require Congress, and Congress --

BLEDSOE: By the way, we`re talking about Canada now.

HAYES: Right.

BLEDSOE: The resources in Canada, I think, we need to bring a lot more
pressure on the Canadians for what they were doing. And we should talk
about the international aspect here. U.S. emissions are only 16 percent of
the global total.

BEINECKE: Paul, let`s just say denying Keystone does put pressure on
Canada. Canada can`t build a pipeline to get it out of their own country.
They can`t go east, they can`t go west.

BLEDSOE: It`s unclear.

BEINECKE: They`re trying to go south. Why should we be the vehicle for
them to develop one of the dirtiest sources on the planet?

(CROSSTALK)

BLEDSOE: I`m just telling you that there are bigger solutions.

(CROSSTALK)

BEINECKE: But I will tell you about Keystone. It has lit a fire across
America in a way that you cannot imagine. There will be tens of thousands
of people in Washington on president`s weekend demonstrating on Keystone.
They are demanding action. They don`t want the Keystone Pipeline, and they
want action.

BLEDSOE: They should demand the price of carbon.

BEINECKE: Keystone is a symbol of going in the --

HAYES: Ta-Nehisi, you thought a lot about the sort of -- the president and
the way that we put a lot on to him and this sort of calculations of his
pragmatism. How do you sort of interpret this decision?

COATES: I think symbols are important, you know? I think lines in the
sand are important. And again, speaking again as somebody in the base, you
know, I think making a stand is actually important. One of the things
about this discussion is, you know, you talk about economic imperatives. I
think it feeds the idea that there will be no cause, you know, for taking
on big issue. There will be a cost, and we should say that. We should be
very upfront --

(CROSSTALK)

HAYES: Henry Waxman, of course, has co-authored the bill, the Waxman-
Markey Bill that made it through the House which was somewhat miraculous it
made it through the House. You know, he, basically, is taking Paul`s line
on Keystone and I think what he`s trying to do is prepare the base that
it`s going to get approved.

He says it`s only small issue compared to the overall objective of the
president we want to achieve (ph). Should I say the president, if you
don`t agree with me, Keystone, I`m not going to work with you on solving
climate change issue? That would be a little bit childish and
counterproductive.

You mentioned something other than Keystone which is the EPA and what they
can do. I want to talk about that after we take a break.

BEINECKE: OK. Great. Thanks.

(COMMERCIAL BREAK)

HAYES: All right. So, one of the, I think, amazing hidden stories about
climate is this court decision that basically found the EPA can regulate
carbon under the Clean Air Act. And it`s not a crazy idea. Carbon is a
pollution, right? It has negative externalities, and those negative
externalities are precisely the sorts of thing that the Clean Air Act was
designed to allow us to regulate, right?

COATES: It`s an endangerment finding.

HAYES: It endangerment finding. Right. They found that it can be
dangerous to public health, right, and it certainly does. We see it all
the time now. The question is, is the EPA going to exercise that power?
And that`s a really fraught question, but what is your sense about --

BEINECKE: Well, our sense is that EPA will do it. I mean, I think that
was clearly the indication from the president`s comments at the inaugural,
and I think we`ll see more in the state of the union. I certainly hope we
do because that is the pathway. There`s no other pathway right now to
reduce emissions.

Ultimately, we need legislation. We`re not going to get it in this
Congress, in my view. So, let`s get started in an area where the Supreme
Court -- it`s the Supreme Court that gave them the authority to do it. So,
you know, there is a great pathway for that reduction. We got to get
going.

HAYES: OK. Walk me through what this looks like if we can get into the
weeds a little bit. So, there are rules that are due in April for new
power plants. Am I right?

BEINECKE: There are two different rules.

HAYES: Yes.

BEINECKE: And last year, the administration came out with rules on new
power plants, which would basically regulate carbon emissions, keep them
very low, make it impossible, in effect, to build a new coal-fired power
plant, unless, you read carbon capture and sequestration. It couldn`t be
done.

But that only deals with new power plants. So, you know, that`s good, but
that doesn`t deal with the source of the pollution --

HAYES: Right, which is out there right now.

BEINECKE: -- emissions in the U.S. come from dirty power plants. We have
to regulate those dirty power plants. So, Clean Air Act authority under
section 111-D allows the regulation of the pollution from those existing
power plants. You have to model that. That has to be created in a way
that`s going to work.

One thing about our energy fabric is, it`s different in every state. Some
states have a lot of coal, some have hydro, some have gas.

HAYES: Right.

BEINECKE: So, NRDC, actually, has come up with a proposal that would allow
flexibility among states. Each state would design -- there`d be a standard
that they couldn`t go above, you know, a level of emissions. And then,
each state would have to design their pathway. It could be through greater
efficiency, which is the most cost effective. It could be through more
renewables. It could be --

HAYES: However, they get there, though, they hit the target.

(CROSSTALK)

BLEDSOE: One of the most interesting things about this is the president
isn`t -- this isn`t a choice of the president. He`s required under law,
because EPA found that these pollutants are an endangerment to public
health. He is required under law to regulate them.

HAYES: Yes.

BLEDSOE: He has no choice in the matter. He has to regulate them.

HAYES: Do you -- A, did you see that happening, and, B -- I hear that and
I think great, but the political blowback is -- I mean, I can only imagine
what will happen on Capitol Hill and on Fox News if this happened.

ELLIS-LAMKINS: I mean, I think one thing that would be important is to
look at who the next administrator will be. I think that will be the
greatest indicator.

HAYES: Of the EPA.

ELLIS-LAMKINS: Of the EPA, because I think, Lisa Jackson who`s been the
administrator has really been a fierce warrior on these issues. I think
she`s put herself out there and take it a really significant hit back. It
will be important to see who the White House selects, what type of power
and support they`re going to put behind that person, because I think the
reality is, the hit from Fox News and others, the litigation, cannot be not
taken really seriously.

HAYES: And it can`t be -- I mean, I think the key point here is, it can`t
be defended by the administrator alone, right?

ELLIS-LAMKINS: Right, right.

HAYES: If you`re going to do it, the president and the White House has to
stand --

(CROSSTALK)

ELLIS-LAMKINS: I think one of the greatest challenges over the last couple
of years has been -- it`s been this incredibly vibrant EPA. And we think
it`s great for the president appointed someone so important, but it`s
really been a fight between EPA and everyone else.

HAYES: Right.

ELLIS-LAMKINS: So, the success of what happens in the future will be, is
it a fight with the White House`s EPA or it is a fight with the EPA?

BEINECKE: So, Chris, on this point, I think, it`s very important that this
cannot be an issue that`s solely inside the beltway.

HAYES: Right. That`s why we`re here.

BEINECKE: Exactly, and I appreciate that, because there has to be support,
wide support across the country. And, you know, it`s our responsibility,
the environmental community, others with an interest to really work on
getting that support because you`re going up against the toughest industry
out there, fossil fuel industry, and it`s a toe to toe fight. No question
about it.

HAYES: And I think, actually, the message is simple. We have a Clean Air
Act to protect us from pollution and it`s negative the consequences.
Carbon is pollution. We should have --

BLEDSOE: You know, there`s an irony here. Not only is the president
regulated under the law to regulate these pollutants, but Congress had a
cheaper solution right on their door step. Everybody agrees that the
command and control system is going to be more expensive.

HAYES: Right, right.

BLEDSOE: It was congress` choice --

HAYES: But they can`t (ph) ran away from it.

BLEDSOE: -- to make it more expensive and less effective.

HAYES: I want to thank Phaedra Ellis-Lamkins from Green for All, Paul
Bledsoe, formerly of the Clinton White House climate change task force, and
Frances Beinecke from the Natural Resources Defense Council.

All right. Is the game Junior Seau loved responsible for his death?
That`s next.

(COMMERCIAL BREAK)

HAYES: Last spring, NFL all-pro linebacker, Junior Seau, committed suicide
by shooting himself in the chest, leaving his brain intact. Two weeks ago,
Seau was brain tested positive for chronic traumatic encephalopathy or CTE,
a brain disease with symptoms may include depression and aggressive
behavior and is caused by repeated hits to the head.

On Wednesday, Seau`s family sued the NFL, saying the league is negligent
that it concealed the dangers of repetitive blows to the head and then it
put the NFL`s $9 billion year business before the health of its players.

In the suit, the Seau family alleges that, quote, "The NFL knew or
suspected that any rule changes that sought to recognize that link to brain
disease and the health risk to NFL players would impose an economic cost
that would significantly and adversely change the profit margins enjoyed by
the NFL and its teams."

The Seau family is also suing the helmet manufacturer, RADEL, saying that
the company was negligent in their design. In response to the suit, a
spokesman for the NFL said on Wednesday, quote, "Our attorneys will review
it and respond the claims ppropriately through the court."

In the last few years, Seau was one of three retired NFL players who
committed suicide and then tested positive for CTE, which to date has only
been detectable postmortem. Ray Easterling and Dave Duerson were the
others. Like Seau, Duerson not only shot himself in the chest, but he
asked his family to donate his brain so doctors could study the long-term
effects of getting hit in the head.

The Easterling and Duerson families are also suing NFL and many of the
allegations in these family suits mirror those in a separate case against
the NFL brought by close to 4,000 former players. All of this is an
increasingly dire legal and publicity threat to the NFL, a league that
zealously protects its image. In the last few years, the league has
responded with rule changes meant to protect players from brain trauma.

The deeper question one week before a 100 million fans tune to the Super
Bowl, is the sport just too dangerous to play?

Joining us now are Mary Ann Easterling, the widow of Ray Easterling, and
Kevin Turner, a former NFL fullback who played eight seasons with New
England Patriots and the Philadelphia Eagles. In 2010, Turner was
diagnosed with ALS, or Lou Gehrig`s Disease. Mary Ann, I want to begin
with you, and first, just to express, obvousl, my heartfelt condolences for
the loss of your husband. I want to ask you --

MARY ANN EASTERLING, WIDOW OF FMR NFL PLAYER, RAY EASTERLING: Good
morning. Thank you.

HAYES: Good morning. I want to ask you what the last years of his life
were like? What were the effects of having this condition?

EASTERLING: When I first met Ray, he was gregarious. He loved Jesus. He
shared his faith with youth. Once he retired from football, he gradually
became less and less able to deal with his injuries, but particularly
starting in 1989, he began to experience insomnia and depression. His
personality changed to the point where I had to pinch myself, sometimes, I
didn`t recognize the person whom I married.

And, he had difficulty dealing with authority. He was argumentative a lot.
Increasingly starting in about 2008, he started to be late for all of his
business appointments. He did not handle money well. We became less and
less financially viable. And honestly, the thing that tripped it off was
he began to not be able to use his hands.

He couldn`t button the buttons on his shirt. He couldn`t tie his shoes or
write. So, we sought the help of a neuropsychiatrist in Richmond who
diagnosed dementia due to the concussions he had suffered in the NFL.

HAYES: Kevin, I want to turn to you and ask, when you were diagnosed with
ALS, was your first thought about your playing career?

KEVIN TURNER, FMR. NEW ENGLAND PATRIOTS FULLBACK: To be honest with you,
no. I wasn`t very sure what ALS was. And, I`d heard of it, but wasn`t
certain as to the details of the condition.

HAYES: And when you think back about your playing career, when you were
playing, were you cognizant of the risks? Was that something people talked
about or was it just part of the game, essentially?

TURNER: Well, I knew -- I was very keenly aware of the risks to the -- you
know, my knees, my neck and back, shoulders and things like that. All
those things, I certainly knew the risk and was willing to accept it. But,
what I went through of, you know, 12 years or 13 years since my retirement
was something totally different than I expected just with the changes that
went on there were so.

You know, kind of looking back, I can see a lot of the things, but at the
time, you know, nothing stood out. But I had a lot of the same things that
Mary described in Ray, you know, a problem with my -- problem organizing,
planning, all those sorts of things. And I wound up, you know, in 2009
getting -- filing for divorce and bankruptcy in the same month.

HAYES: I want to let viewers know that the study, so far, from the
National Institute of Occupational Safety and Health finds that deaths from
neurodegenerative causes for retired players are three times higher than
the general population. Death from Alzheimer`s and ALS for retired players
is four times higher than the general population.

Mary Ann and Kevin, I`d like you to stick with us and we`re going to bring
to the table a neurologist who works with the New York Giants as well as
Mike Pesk, the great sports journalist, Ta-Nehisi, a football fan who has
turned away from the game because of the more that we learn about its
impact right after this.

(COMMERCIAL BREAK)

HAYES: All right. Joining me at the table now, I have Mike Pesca, sports
reporter for NPR, Teena Shetty, M.D. (ph) who is also a neurologist at the
Hospital for Special Surgery and team doctor for the New York football
Giants, if I`m not mistaken, and Ta-Nehisi back at the table as well.

I`ll begin with you, Teena. What do we know now about the risks of a
career playing football and getting -- sustaining repeated head trauma?

DR. TEENA SHETTY, NEUROLOGIST: We know that football is a sport which
lends itself to trauma, unfortunately. So, we know that we have to proceed
with a lot of caution with these players who are so vulnerable to the
effects of trauma. We know head trauma can cause concussion, and we know
that concussion is an alteration in mental status which can cause a variety
of neurologic symptoms and psychiatric symptoms as well.

HAYES: One of the things I think that`s hard for us to track is when did
we start to know this? How -- what is the timeframe in which the risks
have become clear and have been established by the literature? And, where
is the literature headed in terms of just what level of injury is
acceptable risk?

SHETTY: So, there`s sort of two levels to that question. One is the
short-term effects of concussion, which are concerning and the other which
is becoming increasingly more present in today`s world is the long-term
effects of concussion and the long-term effects of cumulative brain
injuries so one concussion after another.

And, the research and literature is both taking direction of trying to find
out which factors around concussion are causing long-term problems.

HAYES: Is it just concussions? I mean, I`ve seen some literature to
suggest that subconcussive small impacts over a period of time might also
produce some of these symptoms long-term.

SHETTY: That is definitely possible. I would say if concussions are
managed correctly, we believe that we can safeguard the brains of these
players.

HAYES: So, this gets us -- Mike, this is the big question right now which
is, A, how the league has responded, and, B, the two tiers of question
which is, can this risk be managed in some way that is acceptable or is the
game just unacceptably dangerous?

I mean, are we dealing with something that 100 years from now will be
viewed as just sort of a barbaric relic because it cannot be played in any
way that approaches the level of safety that we would want in a workplace?

MIKE PESCA, NATIONAL PUBLIC RADIO: Yes. And of the two tiers of risk, you
have you to separate one of those when we talk about what`s acceptable
risk, who`s taking the risk? With NFL players making millions or hundreds
of thousands of dollars, that`s one thing. With high school students,
that`s entirely another.

Pop Warner (ph), yes, 11-year-olds, that`s, you know, third category all
together. Right now, there are 1.2 million boys, mostly boys, who play
high school football. It`s the most popular participation sport in high
school. Americans love football. Fifty million people almost watched both
of those championship games last weekend.

So, it seems weird that we`re talking about the possible death of a sport
that`s not only the most popular sport in America, it`s actually the most
popular pastime, the most popular media entertainment. How can both of
these things be true? Well, look at boxing, and they can`t be true.

HAYES: I want to play the Terry Bradshaw sound that is just amazing when
he`s talking about his son. I mean, Terry Bradshaw, obviously, one of the
most famous football players ever to play, and this is what he would say to
his son today about playing football.

(BEGIN VIDEO CLIP)

TERRY BRADSHAW, HALL OF FAME QUARTERBACK: If I had a son today, and I
would tell you this to all our audience and our viewers out there, I would
not let him play football.

UNIDENTIFIED MALE: You wouldn`t?

BRADSHAW: There will be a time in the next decade where we will not see
football as it is, I believe. I know in state of Texas it`s king, but I
believe where soccer is going to elevate itself, I think, basketball and
baseball, and the contact sports are going to slowly fade away. I would
not want my child out there and I would not -- the fear of them getting
these head injuries, and they`re out there, is just too great for me.

Too much fun to be had in athletics. But, football is an awesome sport,
but it`s also a violent sport -- we know what we checked in for. And seven
years of age, that`s what I wanted to do in my life and I didn`t care that
I got hurt. Then the question, would you do it again? Absolutely.

(END VIDEO CLIP)

HAYES: Ta-nehisi?

COATES: I just want to just redirect the conversation a little bit --

HAYES: Sure.

COATES: -- back to this question about subconcussive blows, because this
is part of, you know, the reason why I ultimately had to gave it up. Love
football. Football is probably my oldest friend. I started watching
football when I was five years old. So I left (ph) that`s like 30 years.
The question for me like you take a guy like Junior Seau who when he first
died, first question they asked was did he have a history of concussion?

There was no history of concussions. Now, maybe, you know, it`s ceiling
(ph), whatever. But what we knew at the time was that there was no
history. Chris Henry, a wide receiver, not a middle linebacker, not a guy
who was known to have taken a lot of blows over the head, when he died, and
they did the analysis, turned out he had CTE.

So, I`m skeptical even of this notion that it can actually be managed.
Managed how? There`s an incentive for me not -- a former football player
to not allow you to see that I`m injured, there`s an incentive -- you know,
all due respects for doctors who are in the chain of command, head coaches,
to, you know, get players back on the field --

SHETTY: And this is a tremendous problem that we face today. It`s one
that we`re very cognizant of. And so, doctors who see football players are
very aware of the incentives and we`re very careful to screen people for
that and to not let that bias your decision in any possible way.

HAYES: But the doctors have incentives, too. I mean, one of the things I
think that in the history, Ta-Nehisi, you put up a mauling (ph) to our
blog. You put up a sort of history of the NFL`s responses. And, what you
see is time and time again, essentially, doctors are put out there
officially who are team doctors by the NFL saying, well, we don`t really
know and it doesn`t look that bad and we can figure it out.

SHETTY: That`s exactly why it`s important to have an independent
consultant, actually, which is the role that I`ve been able to play for the
Giants in which you have an unbiased opinion and what you`re trying to
safeguard is the brain of that player and their long-term health, both
neurological and psychological in addition to their medical well-being.

COATES: How can it be independent? How can it ultimately be -- the
problem with football is everyone has -- the coaches, the players, everyone
has a vested interest in you getting back out on the field. And as long as
the league is paying for it, if somebody within the league -- how do you
get it independent?

HAYES: I want you to answer that question right after we take a quick
break.

(COMMERCIAL BREAK)

HAYES: Teena, you were going to answer whether you can truly be
independent, which I think is a great question from Ta-Nehisi and because
part of what the system that`s set up here, right, there`s particularly the
pressure level, I think, is a little different if you`re dealing with a 10-
year-old on a Pop Warner built (ph).

SHETTY: Absolutely.

HAYES: But in a professional level, there`s a lot of money at stake and
that money has derived from players playing. When players play, the game
happens and people make money. And so, the question is, can anyone who`s
in that ecosystem ever be independent and make the call to actually do
things that might not be in the financial interest in the short term?

SHETTY: We absolutely strive --

(CROSSTALK)

HAYES: Yes, Kevin, please. Yes, go ahead, Kevin.

TURNER: Oh, I`m sorry.

HAYES: No, go ahead.

TURNER: What frustrates me is, you know, we knew -- I`ll say we in
general, but you know, doctors have discovered this in boxers years and
years ago. And even when it was Brought up in football, you know, the -- I
don`t think the NFL ever really took anybody serious, you know, probably
until 2009 or 2010.

You know, it was almost like, you know, word finally got to the powers that
be that, hey, the canaries are dying, so maybe you out to change the way
we`re doing this.

So, that -- you know, I sat and listened to -- back in 2007, when I was
thinking that, you know, maybe the hits to the head had an effect on me
and, you know, sit there and I remember seeing us show HBO where the NFL`s
head, neck and spine doctors were just, you know, almost rude in the effect
that he was just saying, you know, it`s got nothing to do with it, you
know?

HAYES: Yes. And so -- I mean, part of the changing -- to get to this
point of independence, part of it is changing that culture, right? I mean
--

SHETTY: Exactly. And that, I would argue it`s radically changed since
that time, and even since the time since Junior Seau was playing, doctors
are cognizant of the risks to athletes and football players from football
and other sports in which they`re vulnerable to concussion.

HAYES: What has changed in the league, Mike?

PESCA: But it`s not always the doctors who have their say. I mean, we saw
this not with a head injury but with a leg injury with Robert Griffin where
the greatest orthopedist in the world was ignored. You know, I was at the
--

HAYES: Explained what happened to Robert Griffin, because it was such in a
loss thread of example of precisely this.

PESCA: Right. So, Dr. James Andrews who`s the most respected orthopedic
surgeon in the world was not even allowed to properly examine him, never
cleared him, and he went back to play --

HAYES: He`s quarterback for the Redskins who clearly was basically limping
around the field on national television. Everyone watched and went on
Twitter to say, "Please, for the love of God, pull this person from the
game. He has one good leg, and he`s playing professional football."

COATES: By the way, the coach claimed that he had been cleared --

PESCA: Right. And the coach also -- so, what the coach did, what the
player did get into culture. OK? Not the culture necessarily of doctors
and executive, but the cultures of the players --

HAYES: Internal to the --

PESCA: -- who are putting and the coaches who are putting themselves on
the line. I was at the Ravens/Patriots game and in the locker room, the
Ravens were saying Bernard Pollard who later hit on Steven Ridley, knocked
Ridley out, literally, fumbled. Ravens cement the game on that play, one
of the biggest plays of the game. Pollard`s teammates were saying he
played for free.

I said, what do you mean? He said, oh, we think he`s going to get fined,
and therefore, give up his game check. But this is the world we live in.
Steven Ridley was concussion #239 this year in the NFL of acknowledged
concussions, but there was no fine on that hit. Steven Ridley does not say
that was a not clean hit. Bernard Pollard essentially says, this is the
world we live in.

HAYES: Right.

PESCA: And players are going to lie to get on the field and do these plays
on the field.

HAYES: So, the question is, how to change the culture of the sport and how
to change the business of the sport, and we`ll talk about that after this.

(COMMERCIAL BREAK)

HAYES: Hello from New York. I`m Chris Hayes.

Here with Mike Pesca from National Public Radio, neurologist Dr. Teena
Shetty; Ta-Nehisi Coates from "The Atlantic" magazine. And joining us on
satellite are Mary Ann Easterling, the widow of Ray Easterling, and Kevin
Turner, a former NFL fullback.

Mary Ann, I want to ask you -- in the later years of your husband`s life,
what are his feelings about his football career were? Because I think one
of the arguments that gets made is, look, these are grown adults who are
taking on risks and they`re making money and they know what they`re getting
into. I wondered, at the end of his life, as he looked back on his career,
how he felt about the bargain he struck with the game of football.

MARY ANN EASTERLING, WIDOW OF FMR. NFL PLAYER RAY EASTERLING: Ray felt
used. He felt like the current culture in the billions that the NFL was
making was built on those players in the `60s and `70s. He would not have
done it again if he had a choice.

And I would say I believe that our culture will be judged by the way we
treat the infirmed and the -- and these guys who are dealing with dementia
and ALS and Alzheimer`s due to the concussions.

And I believe that the NFL will be judged. The NFLPA will be judged by how
they help them.

And that`s what our lawsuit is about.

HAYES: Do you think fans should be part of that judgment? Ultimately, it
seems to me one of the questions here for people that don`t play in the
league or are employed by the league, is just the millions of people that
watch football, and I`m one of them. I mean, I love watching football.

EASTERLING: Absolutely, I agree. But what`s not realized is that those
players back then didn`t make the millions.

HAYES: Right.

EASTERLING: They suffered the consequence of losing whatever little they
did make. It`s not a question they knew they would have these problems
with their brains. You know, just like Kevin said, they knew they were
risking their physical bodies, but their brains were -- didn`t come into
play in that equation.

HAYES: Mike, do you -- Kevin, yes, please.

CHRIS TURNER, FORMRE NEW ENGLAND PATRIOTS FULLBACK: Chris, it`s hard for
that culture to change. Like I said earlier, when the players especially
have to be somewhat responsible and police themselves, it`s hard to do that
sometimes when you want to get all the reps or you don`t want to miss part
of the game or come out because of -- because you`re a little dizzy or
hearing bells ringing in your head. You just kind of keep going.

But I know one of the reasons we set up the Kevin Turner Foundation was to,
you know, make people more aware. And I don`t believe that culture will be
changed until, you know, say, the 5 and 6-year-olds of today, you know,
from about 20 years from now, because cultures are still -- you know, it`s
the tough guy thing.

And I had it. And everybody that plays the NFL has it. You want to play.
You want to keep going.

MIKE PESCA, NATIONAL PUBLIC RADIO: It`s a warrior sport. It`s a warrior
mentality. Nothing gets you more respect than playing hurt.

HAYES: Yes, and toughness and violence are interwoven into the DNA of the
game. This is a sort of an amazing report on Massachusetts Pop Warner game
in "New York Times" that left five preteens with concussions.

"As emergency medical technician on the sideline evaluated of the boys grew
worried they might have concussions had them take the pads off, the game
went on without officials intervening. It went on despite the fact that
the Braves with three players already knocked out in the game no longer had
the required number of players to participate. Even with what are known as
Mercy Rules, regulations designed to limit a dominant team`s ability to run
up scores, the touchdowns kept coming and so did the concussions.

When the game ended the final score is 52-0 and five preadolescent boys had
head injuries, the last hurt on the final play of the game."

PESCA: That`s a horrific anecdote and it needs to stop. I`ve done
reporting on youth football. If you don`t think that change can be made,
look at the issue of not giving players water. It used to be seen as
tough.

After highly publicized deaths, every middle school and high school coach
has plenty of water breaks. I think people who are involved in youth
sports are doing it for the right reasons and there can be change. But the
whole issue, is it even possible to do all the things correctly and make
this a safe sport is still an open question.

(CROSSTALK)

TA-NEHISI COATES, THE ATLANTIC: Yes. And that`s -- I`m sorry.

HAYES: Please, Kevin.

TURNER: I certainly think they can -- you know, that football will
continue, like I say, as America`s favorite sport and, of course, mine.
But, you know, I don`t let my boys play football until they`re in high
school. My oldest is already in high school. My youngest, he won`t play
as much as my oldest did because now I`m a little smarter.

So -- and I believe a lot of people will go that way.

One thing I like to mention, you know how in little league baseball we keep
a pitch count, so pitchers at 12 and 13 won`t throw out their elbow. A
friend of mine, Chris Nowinski (ph), you know, talks about, you know, why
don`t we keep a hit count?

HAYES: Yes.

TURNER: With today`s technology, that seems like something, you know,
worthy of us doing as a part of the sport to urge that --

DR. TEENA SHETTY, NEUROLOGIST: That`s very much, Kevin, the physician`s
role, team physician`s role to keep a hit count. We really look at each
case very individually. And one of the important things to remember is
that each person`s brain is obviously different.

So each person`s brain has a distinct reaction to a concussion, which may
be less or more severe than another player`s, therefore, we have to
exercise the same amount of caution amongst everyone. When we see a
player, we take into account how many concussions they`ve had in the past,
how many of those were associated with loss of concussion, how severe the
concussions were, how long it took them to recover from the previous
concussions, and we evaluate that and make recommendations based on those
factors, in addition to many other factors.

(CROSSTALK)

HAYES: Hold on one second --

TURNER: Hopefully, now, players are more aware of what a concussion is. I
know when I, you know, retired and was visiting doctors, they were saying
how many concussions do you have? I`d say, well, only three or four.

But the doctor would give me the criteria. I`d say, oh, that happened, I
don`t know, 50 times. I can`t count. So -- but it just never was talked
about.

HAYES: Right. Mary Ann, something you want to say.

EASTERLING: Yes. For those parents out there, I think the most important
thing you can do is be aware during the game, watch how the coach coaches,
make sure there`s a trainer or a physician or physical therapist available
who can -- who can judge.

But as a parent, you have to get educated on what affects your child. And
you have to know when their personality changes, when they`re sleeping or
they can`t deal with things due to hits they may have taken.

HAYES: Ta-Nehisi, the look in your eyes is sort of horrified.

COATES: Forgive me.

HAYES: No, no, it`s good. One of the things here is we`re talking about
how to manage risks, which as you talk about them, they become more and
more macabre and grotesque, when you talk about 50 concussions.

COATES: Right, right. How about not play?

HAYES: Right.

COATES: How about not play and watch?

This is not like a big moral thing for me. You can look at my clothes,
look at the products I have and see that they were designed in sweat shops.
I`m not trying to put myself up as morally clean.

But this notion that football is so essential to our lives, that we must
find some way to negotiate the injury of your brain is horrific to me. I
just have to say that.

HAYES: What was it that made you -- because you say when you stopped
watching, it wasn`t that you stopped watching because -- it was more
visceral. You couldn`t enjoy the game anymore as opposed --

COATES: No, no, no, it wasn`t like going vegetarian or something like
that, like I`m not going to eat meat. It literally became -- look,
football`s a beautiful sport. All sorts of things that happen outside of
big hits, you know, it`s strategy. All these great things you watch.

Bottom line, though, this is about violence. It`s about controlled
violence. That was part of why I enjoyed it. I loved Steve Pat (ph), I
remember him knocking Christian McCorier (ph) back. I love that.

HAYES: Cathartic.

COATES: It was cathartic. When I could no longer watch that, when I could
no longer watch Tom Brady under threat of violence, whether he got hit or
not, when I could no longer take enjoyment from that?

What was the point? Why was I trying to manage that? You bring, you
know, what is more essentially in turn to what you have physically?

HAYES: This gets to the final point. There`s this amazing disjuncture
that the league is more and more successful in terms of the dollars it
produces, amount of people that watch it, TV deals they strike, the amount
of people that play it and this growing threat to that success in the
growing body of knowledge about what it has done to players who have
played, what it`s doing to players now, the lawsuits that are mounting and
the publicity.

And the question is, when do those two lines intersect?

PESCA: I think the way the league sees it, maybe they`ll lose these
concussion lawsuits and pay out $1 billion, $2 billion, and keep on going.

And change -- you know, reform the best they can, institute the programs
the best they can. But at the basis, the violence and brutality of the
game is what makes it popular. Not just that we thrill to the brutality,
but it makes it impossible to play more than once a week. Because it`s a
rare entertainment, unlike other sports, it has this build to the weekend.
It kind of satisfies a lot of our evolutionary or animal urges.

I mean, it just speaks to where America is. Until people feel like Ta-
Nehisi, they`re not giving up something by football, but they`re repulsed
by football, I don`t think people are going to turn away from it. And I
don`t see a lot of people getting to that place.

SHETTY: I do believe the culture is changing somewhat, slowly but surely.
We`ve seen stricter concussion protocols, coaches and trainers change
tremendously. We`ve seen lots of research being done. The NFL has given a
lot of financial help to research being done in this area or they`re
offering it.

And helmets are changing, a lot of research being done on helmets, people
are being taken off the fields much sooner, you know, which is when they
should be, players should be immediately removed from the field when
there`s any suspicion of concussion. That I have definitely seen.

It`s still not perfect but it`s changing.

HAYES: Mary Ann and Kevin, I want to get your final thoughts on all this
right after we take a quick break.

(COMMERCIAL BREAK)

HAYES: Kevin Turner, I guess my final question for you is whether you
think fans should be turning away from the sport until more is done to
address this situation.

TURNER: Well, I think, you know, as long as we live in a monetary system,
there`s going to be football. There`s too much money bet on it. Owners
are making too much money, players are making money. It`s so much money
and it`s going to be here.

I just hope and pray that the coaches and trainers and players all start to
get it of how serious, you know, head trauma and brain injury can be. You
know, just because you`re not limping doesn`t mean you`re OK.

HAYES: And, Mary Ann, what would -- what would -- you said your husband
felt used at the end of his life. What would justice for you look like?

EASTERLING: Well, Chris, because I have friends who are going through what
I went through the last 20 years, justice would be that the NFL would take
care of its players. Just to provide the testing. The baseline MRIs need
to be done for current players and for the retired players -- a way to help
them through the crisis that they`re experiencing with dementia, ALS and
Alzheimer`s.

HAYES: Mary Ann Easterling, widow of Ray Easterling, and Kevin Turner,
former NFL fullback, I want to note -- you`ll be doing a fund-raiser on
Super Bowl weekend with Hall of Fame coach Mike Ditka benefiting ALS
research. Thank you both so much for sharing your stories this morning.
Really appreciate it.

EASTERLING: You`re welcome.

TURNER: Thank you. It was a pleasure.

HAYES: Here at the table, Mike Pesca from NPR and the podcast hang up and
listen which was like the UP of sports podcasts, you should definitely
check it out.

Neurologist Dr. Teena Shetty, thank you for joining us this morning as
well.

Why hackers freak out those in power. That`s next.

(COMMERCIAL BREAK)

HAYES: This week, the White House announced a national day of civic
hacking, an event being billed as an opportunity for software developers,
technologists and entrepreneurs to unleash their can-do American spirit to
create innovative solutions for problems that affect Americans.

That call to action for hackers comes as much of the Internet is still
mourning one of its most brilliant hackers and activists, Aaron Swartz, who
earlier this month died of suicide at age 26.

Aaron was a truly remarkable figure. In addition to being a hacker, and
activist, he was a writer and programmer. And he possessed the
extraordinarily rare and powerful combination of technical skill and
political acumen.

At 14, he helped create RSS, really simple syndication, tool used to
subscribe to information online. At 16, he helped design the created
common license. At 19, he co-founded a company that would later merge with
Reddit. And most recently, he founded Demand Progress, a group that led
the fight against Internet censorship bill, Stop Online Privacy Act.

At the time of his death, Aaron was under federal indictment for
downloading millions of academic articles from JSTOR, an online e-base (ph)
database for scholarly journals to which he had access. He was facing 13
felony charges carrying potential penalties of up to 35 years in prison and
$1 million in fines.

In the wake of his death, U.S. attorney for district of Massachusetts,
Carmen Ortiz, whose office prosecuted Aaron, has come under fierce attack.

Last week, she responded, saying, "I must, however, make clear this
office`s conduct was appropriate in bringing and handling this case. In
the discussions with his counsel about a resolution of the case, this
office sought an appropriate sentence that matched the alleged conduct -- a
sentence that we would recommend to the judge of six months in a low
security setting. At no time did this office ever seek or ever tell Mr.
Swartz`s attorneys it intended to seek maximum penalties under the law."

But many of Aaron`s peers feel he was not the target of federal government
simply for downloading too many articles, some of which were actually free,
he was a target because the state wanted to make an example of someone who
so powerfully questioned authority.

Here`s Aaron explaining his activism in 2010.

(BEGIN VIDEO CLIP)

AARON SWARTZ, INTERNET ACTIVIST: I feel, you know, very strongly that it`s
not enough to just live in the world as it is, to just kind of take what
you`re given and, you know, follow the things that adults told you to do
and that, you know, your parents told you to do and that society tells you
to do. I think you should always be questioning. You know, I take this
very scientific attitude that everything you`ve learned is just
provisional. It`s always open to recantation or refutation or questioning.

And I think the same applies to society. And I felt growing up, you know,
I slowly had this process of realizing that all the things around me that
people had told me were just the natural way things were, the thing way
things always would be, they weren`t natural at all. They were things that
could be changed and they were things that were more importantly were wrong
and should change.

(END VIDEO CLIP)

HAYES: Aaron, like many hackers, presents a unique threat to the
government for being to do what most activists cannot, turn dissent into
concrete direct action.

Joining us now Taren Stinebrickner-Kauffman, Aaron`s partner, and the
founder and executive director of SumofUs.org, which fights for corporate
accountability.

And, Taren, thank you for coming here today. And, again, I`m totally torn
up about Aaron.

When I heard the news about Aaron, I knew he had a history of battling
depression. He had written about it on his blog. I didn`t know it from
his personally.

I think I didn`t know how much the looming court case played in all this.
And I guess my first question is, what your sense of what the court case
meant to him, how much it loomed in his imagination.

TAREN STINEBRICKNER-KAUFFMAN, PARTNER OF AARON SWARTZ: You know, I was
Aaron for more than a year and a half. Depression was not a major part of
his life during that time. What was a major part was this case. And it
loomed over our entire relationship. I started dating him a few weeks
before the indictment was made public.

He was up against the full force of the U.S. government for -- that was
charging him for 13 felonies that he didn`t believe he had committed. And,
you know, the whole time he was angry, he was frustrated, he was under
enormous stress.

But I think in the end, he was just extremely weary. He just -- I think he
just couldn`t wake up and face another day of trying to, you know, wrangle
money to pay his lawyers, trying to figure out how to get MIT to stand up
for him, which they could have done, figure out how to convince Steve Hyman
and Carmen Ortiz that he wasn`t a security threat. That he was just a guy
that downloaded academic journal articles.

HAYES: How did he -- how did you and he understand why this prosecution
was being brought with such force and vigor?

STINEBRICKNER-KAUFFMAN: You know, I don`t think we know. And one of the
things that I and his family are calling for right now is an investigation
by Congress into exactly that question. I mean, I think it`s clear that
they wanted to make an example of him. He was arrested initially during
the Bradley Manning -- the height of the Bradley Manning scandal, his
indictment was announced on the same day as the arrest of 16 Anonymous
hackers.

And I don`t think he falls under those categories. I think it`s clear
that, you know, the government is having a hard time catching computer
criminals, having a hard time finding people that steal people`s credit
card numbers. But they caught Aaron and they wanted to -- they wanted to
show -- they wanted to make an example of him.

HAYES: Why did he download these articles? What was the idea?

STINEBRICKNER-KAUFFMAN: You know, the truth is, we don`t know. The
government alleges he was planning to release the documents publicly, which
-- and I would point out that, you know, I don`t -- we don`t have the data
set of which documents were downloaded. But many of them are in the public
domain, not just in the sense -- I mean, all of them are in the public
domain with the sense that they`re available to anybody with access to
JSTOR on any university campus.

HAYES: Right.

STINEBRICKNER-KAUFFMAN: But many of them aren`t even under copyright --

HAYES: These are not -- this is -- you know, the journal of anthropology
and --

STINEBRICKNER-KAUFFMAN: Yes.

HAYES: This is just broadly the academic literature that exists out there
on one database.

STINEBRICKNER-KAUFFMAN: Yes. And I think, you know, a lot of academics
and librarians -- academics are forced to cede their copyrights to the
journal when they publish them, and I think most academics I think would
want their journal articles to be publicly available.

But to answer your question, we don`t know. He may have made that case at
trial, but he wasn`t -- you know, he was -- he may have -- he may have
revealed at trial what his intentions were but we don`t know.

HAYES: Are you -- how do you understand his death? I mean, are you angry?
Are you --

STINEBRICKNER-KAUFFMAN: Yes. Yes, I`m angry. I`m angry at the
prosecutors, I`m angry at MIT. But I`m also angry at the broader criminal
justice system. Like, there are so many people who face the kind of
existential crisis that Aaron faced and don`t have the resources and
support that Aaron does.

And I think that, you know, Aaron -- Aaron would have been the last person
who would have wanted us to focus on his own life and his own death. He
wanted us -- he would have wanted us to place this in the context of the
broader system where we`ve built a legal system focused on punishment and
revenge, not focused on justice and it`s certainly not focused on mercy.

I think this needs to be a wake-up call to our country and to everybody who
-- for whom Aaron might have been the first person they knew who faced
these kinds of problems. But --

HAYES: Yes. It`s a unique thing to be on the other end of the state`s
power when it comes to criminal prosecution. There`s this kind of
definitional question about what Aaron`s alleged to have done, whether that
was stealing or not. And I want to talk about that in the context of his
life`s work, what he actually was fighting and the kind of work he did and
bring in other folks right after we take a break. Stick around.

(COMMERCIAL BREAK)

HAYES: Joining us now is Susan Crawford, author of the book "Captive
Audience: Telecom Monopoly in the New Gilded Age", professor at the Center
on Intellectual Property & and Information Law Program at Carodozo School
Law, fellow at the Roosevelt Institute and former special assistant to
President Obama for science, technology and innovation policy.

Back with us at the table is Ta-Nehisi Coates from "The Atlantic" magazine.

And I want to bring in Lawrence Lessig, professor of law and leadership at
Harvard Law School and director of Edmond J. Safra Center for ethics at
Harvard University, where I was actually a fellow with Aaron actually. And
Larry is also the cofounder of Creative Commons.

I want to play this clip of Aaron, because the issue here, the core issue
here is this tremendous battle that is happening right now. A definitional
battle about what property looks like in the 21st century, basically. What
access looks like, who can get what information, who controls information?

And that was the -- one of the animating causes that Aaron was fighting
over and committed to. And he`s got this great -- when he`s talking about
the SOPA legislation, the Stop Online Piracy Act, which he and a lot of
activists fought very hard because it would have restricted that
information, allowed service providers to cut off access to certain people.

This is him talking about the battle being over the metaphor we`re using in
our heads to think about this information. Take a look.

(BEGIN VIDEO CLIP)

SWARTZ: There`s a battle going on right now, a battle to define everything
that happens on the Internet in terms of traditional things that the law
understands. Sharing a video on bit torrent like shoplifting from a movie
store? Or is it like loaning a videotape to a friend?

Is reloading a web page over and over again like a peaceful virtual sit in
or a violent smashing of shop windows? Is the freedom to connect like
freedom of speech or like the freedom to murder?

This bill would be a huge, potentially permanent loss, if we lost the
ability to communicate with each other over the Internet, it would be a
change to the Bill of Rights, the freedoms guaranteed in our constitution,
the freedoms our country had been built on would be suddenly deleted. New
technology, instead of bringing us greater freedom would have snuffed out
fundamental rights we had always taken for granted.

And I realize that day, talking to Peter, that I couldn`t let that happen.

(END VIDEO CLIP)

HAYES: The irony here is in the statement of the U.S. attorney for
district of Massachusetts in the press release, regarding Aaron`s case.
That office said, "Stealing is stealing whether you use a computer command
or a crowbar, whether you take documents, data or dollars, it is equally
harmful to a victim whether you sell what you have stolen or give it away."

And that to me that`s the fundamental question, stealing is stealing. This
is the concept of information and bytes are the same as the clothes that
you`re wearing.

SUSAN CRAWFORD, AUTHOR, "CAPTIVE AUDIENCE": Aaron`s death is a terrible
tragedy and it`s leading to a heightened and broadened awareness of the
importance of public access to publicly funded research. This isn`t a
luxury. That everybody should have the ability to improve their lives by
getting access to stuff we already paid for and that it`s our property, in
a sense, when it`s been funded by the federal government.

So, pivoting to this idea of making sure that scientifically funded
research is available, that we can get access to these riches that are
academics` articles. Academics just want to be understood. Aaron`s
absolutely right. We just want to reach other people, not trying to
control it. And that intermediaries are given them too much power to be
gatekeepers over this information is destructive to our common law.

HAYES: Larry, on one of your earlier books, I remember encountering this,
you talk about the difference between physical property and intellectual
property and there`s a little example you give, which I`ve stolen when I
talk about, you know, the difference between stealing the picnic table out
of your neighbor`s yard and stealing the idea of putting a picnic table in
your yard, and the difference consequences of actually having the picnic
table and now you both just have picnic tables. It`s the difference
between things that are generative and not.

And it seems like this is -- this has been one of the guideposts of your
work and what was in some ways at stake in much of what Aaron was working
on.

LAWRENCE LESSIG, HARVARD UNIVERSITY: Yes, that`s right. You know, when
you hear a U.S. attorney say something as stupid as stealing with a
computer is just the same as stealing with a crowbar, you recognize she
knows nothing about computers, nor anything about crowbars.

You know, you wonder, where are we in our society that these are the people
who are our leaders, right? Obviously, nobody, including Aaron, wants to
create a world where anybody can go and take whatever there is to take.
You know, there`s privacy. There`s legitimate copyright over, you know,
films that have been produced by Hollywood studios.

But what Aaron was making a point about, was the kind of copyrighted
material that even the creators wanted to be made accessible around the
world. So, if you remember Obama, when he attacked the Iraq war as a
candidate for Senate, he said, I`m not against wars. I`m against dumb
wars.

And that was Aaron Swartz. He`s not against copyright. He was against
dumb copyright.

That`s exactly the kind of example that this -- that this protest was
trying to demonstrate.

HAYES: One of the ironies here is that JSTOR. which is -- it is a
nonprofit, I believe, right? It`s conceptually nonprofit. It has this
kind of bizarre monopoly over all these academic copyrights. They
themselves actually declined to pursue charges against Aaron.

And before the Massachusetts U.S. attorney issued the statement, they
issued a statement quite soon after his death saying, basically, we kind of
wanted to have nothing to do with that.

How do you interpret that?

STINEBRICKNER-KAUFFMAN: Well, you know, I think that JSTOR realized this
wasn`t a case that was going to be good for them either way, right? This
wasn`t -- the more the people understand how archaic the model we have for
disseminating academic research is, the less good it is for the powers that
be. You know, I think the real question is why MIT didn`t file a suit
given all MIT`s cultures and principles should have said, this is a great
thing for the world.

HAYES: Why do we have this stuff behind lock and key? Why scant I can`t I
go -- this is a silly and naive question. Like if someone produces a
scientific article, like why can`t I as a citizen read it?

CRAWFORD: Like the ancient friction of old fashion publishing, where you
needed somebody else to be your microphone and especially as an academic,
you need the brand of a particular journal to reach other people to try to
have impact. Now, that`s no longer true.

So, I think we`re in an awkward period of transition where we`re going to
be able to publish things without the aid of others in using distribution
mechanisms that don`t now give that kind of cache to an academic. That`s
why this happens.

HAYES: As a journalist, Ta-Nehisi, JSTOR can be a real --particularly if
you`re just trying to be a freelance journalist.

COATES: That`s right.

HAYES: And you don`t institutional affiliations, it can be an incredible
obstacles.

COATES: Right, right, right. You know, as far as I`m concerned, it
empowers the entire discussion. One of my big, you know, high horses is
this idea of journalists as totally, totally ahistorical. Now, maybe if
journalists had access to, you know, academic journals and everything,
maybe it would still be ahistorical --

HAYES: You have less of an excuse.

COATES: Right, right. But I know when I was starting out, I would be
researching a story and my first approach was to find out the history, you
know, and I would always run into this wall marked JSTOR. It impoverishes
the discussion, because as a journalist, you have, you know -- it`s easier
than it is for an academic to speak to a broad audience but I`m only able
to access certain information.

This was brought home after the revolution in Egypt. I caught a talk show
on TV, and I won`t say the name of the show, but I`m watching the show, I`m
interested in Egypt, and it`s like, a former adviser for McCain and, you
know, some Democrat saying -- and I know that somewhere there is some guy
in academia who`s been studying Egypt for 50 years, why didn`t they find
the article this guy had written, research it and get him on to talk about
it.

CRAWFORD: Speaking about Egypt, just the way there was Arab spring, it`s
kind of an academic spring going on right now, too, where academics are
trying to find ways to get their stuff out there with publisher but in a
way anybody can find it in repositories.

HAYES: Well, this has become in economics, particularly.

Larry?

LESSIG: Yes. What`s very tragic about this story around JSTOR is that
literally three days before Aaron committed suicide, I received a letter --
I received an e-mail from the president of JSTOR announcing this new
program where they were going to make this material available to anyone who
wants to register anywhere in the world.

So, you know, JSTOR was started as a nonprofit with the idea of taking the
extraordinary cost, which in 1995 it was, of taking this material and
making it accessible to the world. And I think this prosecution actually
has brought them to focus on what their underlying values were. And their
underlying values are I think to make this as broadly accessible as he can.

But Aaron said in his comment, this guerilla manifesto, look, we have this
great project going forward, the project of making material openly
accessible. That`s what public library science does. That`s what Creative
Commons is all about.

But the hard problem is, what do we do looking in the past? Because in the
past , this material is locked up and there`s no easy legal way to get
access to it.

HAYES: I want to read from that manifesto. And I want to talk about
hacking as a tool of social change because I think it`s incredibly
threatening, not just to the powers to be, but other people. It looks
chaotic and lawless and I can understand the instinct of saying, why --
these people with special knowledge get to decide what gets out there and
not. I don`t want that world.

So, we`ll talk about that after this break.

(COMMERCIAL BREAK)

HAYES: Larry Lessig, you just mentioned Aaron`s open access manifesto
which I wanted to just read a little bit from.

The world`s entire scientific and cultural heritage published over
centuries in books and journals is increasingly being digitized and locked
up by a handful and private corporations. Those with access to these
resources, you have been given a privilege. You get to feed of this
banquet of knowledge, while the rest of the world is locked out.

But you need not -- indeed, morally, you cannot keep this privilege for
yourselves. You have a duty to share it with the world. Sharing isn`t
amoral. It`s a moral imperative. It`s time to come into the light. We
need to take information wherever it is stored, make our copies, share them
with the world. We need to find for guerilla open access.

And I think that this gets it as is, you know, had done something with an
online database of legal documents, PACER, in which he had downloaded a
bunch of documents, which you had to pay a fee for reasons that remain
totally unclear to access and then share them. And said, look, this is
public information. These are public legal documents.

But the very -- there`s something to transgressive about the act of just
seizing and doing it. It`s in such a different category than the kinds of
actions that 99 percent of the population feel they`re able to do. And I
think it`s threatening to people. It`s clearly threatening to the state, I
think.

But when you think about anonymous and Bradley Manning, I`m not saying
they`re in the same category but what unites them is they have the ability
because of this technical know-how to do an end-around the obstacles.

How did Aaron see his actions in that light?

STINEBRICKNER-KAUFFMAN: You know, a lot of people have categorized Aaron`s
actions as civil disobedience. But I want to be clear: Aaron never had a
chance to make his case at trial and the government`s legal case was very
thin.

HAYES: Right, right.

STINEBRICKNER-KAUFFMAN: The documents are actually under protective order.
Hopefully, that with be lifted soon so everybody can see exactly how thin
the case was.

But Aaron didn`t feel he had committed a crime. Aaron felt he had found a
loophole and that it was -- you know, the laws around these things are
obsolete, they`re outdated, they don`t keep up with the technical know-how
and capacity of people like Aaron. And he felt like he was doing something
disruptive but not something illegal.

CRAWFORD: Many of the things Aaron did as a software developer were aimed
at trying to make it easier for people to reach information. And here he
had those special tools to make it easier to reach stuff which is not
covered by copyright, these federal cases.

HAYES: But, Larry, I know you and I are friends. You`re a Harvard law
professor. You run an ethics center.

You`re kind of -- the law`s important to you and you`re not a particularly
transgressive individual in terms of your disposition. I wonder how you
see these kind of actions, in what light you see them.

Do you understand the way that people find them to auger some kind of
chaotic future in which hackers can just do whatever they want?

LESSIG: Yes, no, I understand the fear. And, you know, let`s be clear.
There are plenty of crackers out there who are using this same kind of
knowledge to do enormous damage.

HAYES: Right.

LESSIG: People steal credit cards, people who steal identity, people who
crack into government databases and release private information. Those
people are breaking laws that legitimately need to be prosecuted.

I think the problem is the computer laws that Aaron were being prosecuted
under were written in a way that required we have the ability to trust the
government. They were written this a way that basically said, if you do
anything that`s against what the Web site wants you to do, you`ve
potentially committed a felony.

And the idea was, we would trust the government to hash out the difference
between someone stealing Citibank`s credit card list and somebody
releasing, you know, open access information to academic journalists. What
we`ve seen is we can`t trust the government. What we`ve seen is, the
government can`t tell the difference between somebody releasing all the
credit cards that Citibank has and somebody releasing the "Harvard Law
Review" or downloading "Harvard Law Review" for whatever purpose.

I think this is forcing us to try to figure out what can we do to actually
create the conditions where we don`t have to rely upon the good sense of
federal prosecutors? Because they`ve shown us they don`t have good sense
in this context.

STINEBRICKNER-KAUFFMAN: And so, you know, one of the things we`re calling
for in that context is reform of the Computer Fraud and Abuse Act, which is
the law under which Aaron was charged, some of these counts. One of the
things that is unclear about it right now, for instance, is that it might
mean that every -- any time you break the terms of service on a Web site,
you know, that thing --

HAYES: No one ever reads and you say, I agree.

STINEBRICKNER-KAUFFMAN: If you did try to read it, it would take weeks out
of your life every year. Any time you violate any clause in that, which
companies can change at any time at their own discretion, you would be
committing a federal felony.

HAYES: Right. Essentially, a private agreement between you as a party and
the Web site as a party actually has the -- like the state can enforce your
just sort of, you know, disregarding it and, of course, no one reads those
anyway.

Lawrence Lessig, Harvard Law School professor, I really appreciate you
getting up and joining us this morning. Thanks so much.

LESSIG: Thank you.

HAYES: So, what do we know now we didn`t know last week? My answers,
after this.

(COMMERCIAL BREAK)

HAYES: So what do you know this week that you didn`t know last week?

We know that real filibuster reform will not be coming to the United States
Senate. We know that in the last few years, the Senate has ground to a
halt as the GOP minority has filibustered in unprecedented frequency.

We know the percentage of Senate bills that get passed has reached a 65-
year low. We know the 112th Congress was the least productive in history.

We know that the obstruction of nominees has gotten so bad that the
president had to recess appoint the printer of the United States.

We know that current routine filibusters means senators representing 10
percent of Americans can kill any bill or nomination.

We know that in 2011 a few far-sided progressive reformers like Jeff
Merkley and Tom Udall advocated to change the rules that would have
required those filibustering a bill to actually hold the floor and talk and
they were more or less ignored by their fellow Democrats.

We know that Harry Reid himself said that ignoring their calls for reform
was one of the his biggest regrets, and we know what we thought we knew,
there were enough votes from the Democratic caucus to pass by a simple
majority genuine reform. We know that won`t happen as Harry Reid struck a,
quote, "gentleman`s agreement" with Mitch McConnell to alter slightly some
of the worst procedural abuses.

We know that whatever changes there are, are due to the activists and the
organizers and the senators who agitated for them.

We don`t know why in his heart of hearts Harry Reid did what he did. He
told Ezra Klein, quote, "I`m not personally at this stage ready to get rid
of the 60-vote threshold. With the history of the Senate, we have to
understand that the Senate isn`t and should not be like the House."

We know that anyone who has been in the Senate as long as Reid has is going
to be an institutionalist, inclined to be differential towards a status
quo. We also suspect that many senators apparently don`t want to vote that
much, since every vote means having to actually declare a position and
choose between interests, and so every time you vote, you alienate people,
and make your job harder.

We know Harry Reid said if these reforms do not do enough to end the
gridlock here in Washington, we will consider more in the future. We know
we have absolutely no reason to believe him, but we also know if people
keep organizing around the issue, it won`t matter what`s in Harry Reid`s
heart of hearts.

We know the filibuster days are numbered and now, we`re just fighting about
what the ending will look like.

I want to find out what my guests know now they didn`t know when the week
begin.

And I will begin with you Mike Pesca.

PESCA: Well, Chris, we talked about the head trauma in the NFL and so I
want to pull a flea-flicker and talk about poetry.

HAYES: Please?

PESCA: So, at the inauguration, Richard Blanco read a poem and Blanco was
described as the first Hispanic, the first openly gay man, the first
immigrant to read a poem, and I agree with and celebrate all of those nouns
except for the word poem. I don`t think it was a poem. I think it was a
prose -- a bit of prose, good prose with line breaks, and that`s OK.

And what I learned is that when I expressed those opinions on Twitter, man,
did I get slammed as a philistine, as someone who only likes limericks, as
someone who needs to have things rhyme, and that is not true. But what I
also learned is that we care passionately about poetry.

HAYES: I love Richard Blanco. I really love that poem, and I disagree
with you as prose.

Susan Crawford?

CRAWFORD: Speaking of the inauguration, we learned something timeless from
the president, which is that it`s government`s role to stand up against the
ethic that might makes right. And following up on the section here about
public access, we learned that the National Institutes of Health since 2007
has made it a requirement of getting funding that you post your articles
and research that comes out of that stuff online and make it available.
That policy should go across the entire government.

HAYES: If government funds your research, everyone should every citizen
should have access.

CRAWFORD: Exactly.

HAYES: Ta-Nehisi Coates?

COATES: I learned that I learned that the talk that followed 2008 about
the GOP soul searching probably begin about 2012 GOP soul searching is
again a way overrated.

HAYES: Right.

COATES: Virginia is trying to reform the way it nominates. It`s the way
it puts forward its electorate for president, and make it so that the rural
populations which coincidentally are less black, less Hispanic, less Asian
enjoy more power after Barack Obama won Virginia twice. This is a national
plan which yet the GOP has endorsed. And instead of trying to convince
people who don`t look like them to vote for them, they are just trying to
change the game. If I don`t win, you cheat.

HAYES: Myrtle Brecht (ph) has a line about the party has decided to
dissolve the party and elect another.

COATES: Right.

HAYES: Taren?

STINEBRICKNER-KAUFFMAN: So, I learned a lot about the criminal justice
system. Aaron was offered a plea deal and turned it down, which is very
unusual. Only 3 percent of all cases in our criminal justice system, about
3 percent, go to trial. And we think of our criminal justice system as all
of the rights and the constitutional rights and the jury of the peers, and
so on. But it`s all set up, all the instances are set up and structure so
nobody takes that deal. And when you take a plea deal, which most people
do, you lose your right to appeal.

HAYES: Yes. The whole thing is a massive machine to produce pleas.

My thanks to Mike Pesca from NPR, Susan Crawford, author of "Captive
Audience," Ta-Nehisi Coates from "The Atlantic" magazine, and Taren
Stinebrickner-Kauffman from the SonofUs.org -- thanks for getting UP.

Thank you for joining us today for up. Join us tomorrow here at 8:00. See
you then.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
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