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Judge Napolitano - Can the President Disrupt Free Speech · Brian Thomas

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  Speaker 1: Anyway, so we have Strecker around for he looks into
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  Speaker 1: these things.
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  Speaker 2: Thank you, Joe.
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  Speaker 1: We are back to a recurring theme with the column today,
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  Speaker 1: which is can the president disrupt free speech? And I
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  Speaker 1: had you know, I went back and forth just a
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  Speaker 1: little bit yesterday. I had some outstanding questions. We're talking
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  Speaker 1: about the right to peace leassemble, we're talking about the
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  Speaker 1: First Amendment, right to free speech. We're talking about prior
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  Speaker 1: restraint on free speech. And welcome back one of our
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  Speaker 1: favorite cases, Brandenburg versus Ohio. Let's walk through the history
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  Speaker 1: of this, because I did not real I couldn't recall
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  Speaker 1: the president Woodrow Wilson arrested people for merely reading the
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  Speaker 1: Declaration of Independence.
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  Speaker 3: Well, not only did he arrest people for reading the
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  Speaker 3: Declaration of Independence, he arrested some of his former students
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  Speaker 3: when he was the president of Princeton. They were freshmen.
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  Speaker 3: By the time they were seniors. He was the president
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  Speaker 3: of the United States. He was only the governor of
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  Speaker 3: New Jersey for eighteen months when he ran for and
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  Speaker 3: was elected president. Now, I don't know if they did
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  Speaker 3: this to taunt him, if they did this to deter
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  Speaker 3: people from registering for the draft. And he was of
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  Speaker 3: the view that any speech which deterred people from registering
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  Speaker 3: for the draft, men for registering for the draft in
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  Speaker 3: time of war was an interference with the war effort,
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  Speaker 3: and therefore was criminal. When he was challenged in a
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  Speaker 3: press conference that there are two interesting footnotes to this.
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  Speaker 2: One is this one.
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  Speaker 3: When he was challenged in a press conference about how
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  Speaker 3: he could arrest people for speech. This former professor of
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  Speaker 3: constitutional law at Princeton University said.
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  Speaker 2: Read the First Amendment.
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  Speaker 3: It says Congress shall make no law bridging the freedom
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  Speaker 3: of speech. There's nothing in there about the president. Now
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  Speaker 3: you're laughing because if you had given that answer in
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  Speaker 3: an exam in constitutional law in a law school, you
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  Speaker 3: had flunk answer. Said that okay, because he's saying that
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  Speaker 3: because he was not restrained, he was at liberty to
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  Speaker 3: do it. This is the Wilsonian view of the government.
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  Speaker 3: It's the opposite of the Madisonian view. Madisonian, which was,
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  Speaker 3: with the exception of the Civil War years, pretty much
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  Speaker 3: followed from Washington up to the time of Wilson, was
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  Speaker 3: that the federal government is limited to do that which
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  Speaker 3: is it is expressly authorized to do in the Constitution.
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  Speaker 3: The Wilsonian view is the federal government can do anything
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  Speaker 3: for which there is a national problem, and the national
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  Speaker 3: political will accept that which is expressly prohibited to it
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  Speaker 3: in the Constitution. So these two views of the federal
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  Speaker 3: government are the opposite. The other interesting fun fact who
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  Speaker 3: arrested these Princeton students A young federal agent by the
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  Speaker 3: name of John Edgar Hoover.
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  Speaker 1: Okay, well that answers the question right there. Hey, ja.
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  Speaker 3: So as a result of not this arrest, but many others,
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  Speaker 3: the DOJ Wilson's Department of Justice persuaded I'm happy not
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  Speaker 3: a reluctant Supreme Court to permit these suppressions. First, they
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  Speaker 3: came up with a bad tendency test. If speech would
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  Speaker 3: have a tendency to the neutral ear to incite violence,
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  Speaker 3: the speech was criminal. Then they came up with a
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  Speaker 3: clear and present danger test. If the speech is a
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  Speaker 3: clear and present danger to violence or to national security,
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  Speaker 3: then the speech is criminal. These two monstrosities existed for
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  Speaker 3: fifty years from nineteen nineteen until nineteen sixty nine. When
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  Speaker 3: in Hamilton County, Ohio, a crackpot I forget his first name,
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  Speaker 3: last name Brandenburg. I think it was Alvin gave an
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  Speaker 3: incendiary speech in which he condemned blacks, and he condemned
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  Speaker 3: Jews and said, we're going to march to Washington, and
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  Speaker 3: they run the government, and we're going to take it
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  Speaker 3: back from them. He was prosecuted in a Hamilton County
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  Speaker 3: court and convicted of criminal syndicalism basically speech which encourages violence.
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  Speaker 3: Upheld by the Ohio Appellate Court, upheld by the Ohio
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  Speaker 3: Supreme Court, unanimously reversed by the Federal Supreme Court in
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  Speaker 3: validating state and federal criminal syndicalism laws and giving us
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  Speaker 3: the Brandenburg test, no more bad tendency test, no more
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  Speaker 3: clear and present danger test. Now all innocuous speech is protected,
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  Speaker 3: and all speech is innocuous when there is time.
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  Speaker 2: He were time for.
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  Speaker 3: More speech to rebutt it, even if there isn't any
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  Speaker 3: speech that robuts it. If there is time for it,
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  Speaker 3: then the speaker is not liable for the consequences of
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  Speaker 3: his speech, and his speech is protected.
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  Speaker 2: That's the law today. Brandenburg was so cited as recently
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  Speaker 2: as last.
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  Speaker 3: Year by the same nine justices who are sitting today.
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  Speaker 3: Notwithstanding all of this, President Trump wants to bring back
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  Speaker 3: the bad tendency and clear and present danger days because
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  Speaker 3: he has directed federal law enforcement to disrupt.
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  Speaker 2: I put the word in caps.
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  Speaker 3: I didn't think my editors would let me get away
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  Speaker 3: with it, but they did to disrupt the speeches of
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  Speaker 3: those whom the president believes are anti Christian, anti capitalist,
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  Speaker 3: anti American. He singled out Antifa, but the language has
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  Speaker 3: brought enough to cover almost any group that the law
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  Speaker 3: enforcement deems to be anti Christian, anti capitalist, anti American.
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  Speaker 2: Look, I'm an old fashioned pre Vatican too Latin mass
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  Speaker 2: attending world Roman Catholic. You know of that. I am
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  Speaker 2: the antithesis of anti Christian.
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  Speaker 3: But you have the right to be anti Christian in America,
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  Speaker 3: and you have the right to express that.
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  Speaker 1: Indeed, I'd embrace that all day long. Before we get
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  Speaker 1: to some of the subtleties on this, I'm just wondering
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  Speaker 1: if there is a particular case or an illustration of
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  Speaker 1: those situations that where someone has been prosecuted or held
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  Speaker 1: criminally response for whatever because there wasn't enough time to
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  Speaker 1: ject counter sees.
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  Speaker 3: The leading case is called Turman Yellow versus Chicago, which
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  Speaker 3: is nineteen fifties, so it's before it's a precursor to
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  Speaker 3: and leading up to Brandenburg.
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  Speaker 2: But Turman Yellow was a Roman.
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  Speaker 3: Catholic priest who hated Harry Truman and condemned his use
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  Speaker 3: of atomic weapons and condemned his failure for father term.
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  Speaker 3: And Yellow got a little off the rails to crack
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  Speaker 3: down on communists in the government. This is a Joe
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  Speaker 3: McCarthy era now, and he rented a hall, got a
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  Speaker 3: permit from the Chicago Police department, gave an incredibly incendiary
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  Speaker 3: speech saying horrible things about Harry Truman, and the mob
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  Speaker 3: descended upon him, trashed the hall, and the police barely
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  Speaker 3: got him out of there with his life. Well, they
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  Speaker 3: got him out of there and brought him into a
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  Speaker 3: patty wagon and arrested him for incendiary.
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  Speaker 1: Speech, inciting a riot, basically right.
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  Speaker 3: And he was convicted in a Chicago local court, upheld
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  Speaker 3: in an Illinois appeals court. The Supreme Court of Illinois
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  Speaker 3: didn't even want to touch it. And then it went
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  Speaker 3: to the US Supreme Court five to four, not unanimous,
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  Speaker 3: so it's a different court. At the time we get
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  Speaker 3: to Brandenburg five to four reversing his conviction.
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  Speaker 2: Listen to this.
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  Speaker 3: First Amendment speech about the government is so important to
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  Speaker 3: our democracy.
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  Speaker 2: It will even tolerate a little bit of violence.
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  Speaker 3: Wow, Now they didn't arrest the people that trashed the hall, right,
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  Speaker 3: they arrested the Catholic priests that got the permit to
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  Speaker 3: have the gathering.
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  Speaker 1: All right, now, as this applies to Antipha, the st
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  Speaker 1: hypothetical I pose to you, and you wrote in the
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  Speaker 1: article that it is a political philosophy. Most certainly is
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  Speaker 1: it's Marxist, it's communists. Label it whatever you want to
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  Speaker 1: label it is it is not something divinely inspired. Isn't
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  Speaker 1: arguing about a particular issue or a law that should
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  Speaker 1: be passed. This is the fundamental nature of our government.
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  Speaker 1: They don't like it. They want to undermine it. They
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  Speaker 1: hate capitalism, so they can scream about that all day long.
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  Speaker 1: That's political speech. If, however, they are and organized in
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  Speaker 1: some capacity, they're receiving money and funding an organization, they
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  Speaker 1: belong to a particular group. That group's goal is to
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  Speaker 1: tear down the United States of America like a terrorist
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  Speaker 1: organization would. If they are organized and they commit two
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  Speaker 1: or more action further and criminal actions furtherance of their goal,
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  Speaker 1: are they not subject to prosecution for what there It'll
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  Speaker 1: be for what they're doing, though, I said, you can
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  Speaker 1: label the mafia it's organized crime. You can go after
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  Speaker 1: their activities, you can label them antifa. If they are
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  Speaker 1: organized and they do commit criminal acts, you can go
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  Speaker 1: after them as an entity. So does that still stand.
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  Speaker 3: Well, the short answer I think to your question is yes.
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  Speaker 3: If this is an organized entity and it commits two
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  Speaker 3: or more acts of violence, it then subjects itself to
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  Speaker 3: the penalties under RICO, the Racketeer Influence Corrupt Organization Act.
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  Speaker 2: Why did they have.
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  Speaker 3: To use Rico, an Italian nickname.
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  Speaker 1: Yeah, because this.
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  Speaker 2: Was originally written to cripple the Mob.
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  Speaker 3: And thanks to its use by then US Attorney Rudy Giuliani,
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  Speaker 3: it was used to bankrupt the mob. So two or
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  Speaker 3: more criminal events contributing to an enterprise, a financial enterprise
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  Speaker 3: subject the financial enterprise to treble damages. It could so
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  Speaker 3: be used. There are criminal Rico statutes and civil Rico statutes.
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  Speaker 3: I don't know what this antifa is. I only know
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  Speaker 3: that when Chris Ray, the former head of the death
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  Speaker 3: of the FBI, last testified before Congress, which is now
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  Speaker 3: a winter of twenty four, after Donald Trump had defeated
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  Speaker 3: Kamala Harrison, and mister Ray knew he'd better resign or
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  Speaker 3: he'd be fired in a month, he said. FBI intel
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  Speaker 3: found that Antifa is not an organized group.
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  Speaker 2: It's not even a group. It's just it's just an idea.
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  Speaker 3: There's no central authority, there's no central command, there's no
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  Speaker 3: central treasury. That's the last intel made public that we
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  Speaker 3: have on this. Whether there is subsequent intel or not,
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  Speaker 3: I don't know. It hasn't been made public.
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  Speaker 1: Well, there's a lot of research out there, but the
• 11:10
  Speaker 1: Tides Foundation, Sous Foundations, all these very very leftist, pro communist,
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  Speaker 1: pro globalist organizations which seem to be behind the funding.
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  Speaker 1: At least that's what it's been largely suggested. Now. I
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  Speaker 1: suppose this will all play out ultimately if it's investigated.
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  Speaker 1: But in so far as raised, can you know conclusions.
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  Speaker 1: Perhaps it was the timing, they hadn't looked into it yet.
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  Speaker 1: But I know in among my listening audience, the man
• 11:32
  Speaker 1: who's behind Arctic frost doesn't carry a lot of weight
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  Speaker 1: in terms of his.
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  Speaker 3: Well, there's no question about that. I mean, the Arctic
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  Speaker 3: for ust thing is very unusual. Senator Ted Cruz, who's
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  Speaker 3: a graduate of Harvard law school who clerked of the
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  Speaker 3: Supreme Court of the United States but doesn't practice law, said,
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  Speaker 3: you guys tapped my phones. They didn't tap his phones.
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  Speaker 3: They got metadata who called home from?
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  Speaker 2: What number? Two? What number? And for how long?
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  Speaker 3: Now I condemn that, but the statutes for which Senator
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  Speaker 3: Cruz voted here we go remit the government to do
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  Speaker 3: that without a subpoena or a search warrant.
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  Speaker 1: Thank you for reminds if.
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  Speaker 3: The government wants the telecom not to tell the customer
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  Speaker 3: that the government has metadata, they go to a judge
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  Speaker 3: and the statute permits that. I just don't think that
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  Speaker 3: these members of Congress who voted for this ever imagined
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  Speaker 3: it would be used against them exactly.
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  Speaker 1: But the opportunity that it could be was enough to
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  Speaker 1: say no in the first place. And you've pointed out
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  Speaker 1: time and time agoin exactly the way it should have been.
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  Speaker 3: One of those who screamed the loudest, and I'm not
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  Speaker 3: a fan of his, but I have to be into ellectually,
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  Speaker 3: be honest, he did vote against this all the.
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  Speaker 2: Time, that Senator Josh Walley of Missouri.
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  Speaker 3: But these authorities that Jack Smith used, many of them
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  Speaker 3: go back, some go back to the Reagan era. Most
• 13:03
  Speaker 3: go back to the Patriot Act era, right after nine
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  Speaker 3: to eleven. They're reprehensible. They all violate the Fourth Amendment.
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  Speaker 3: They've never been passed upon by the Supreme Court, but
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  Speaker 3: Congress voted for it, and most of them expire every
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  Speaker 3: five years and Congress reenacts them every five years. You'll
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  Speaker 3: see that happening during Donald Trump's current term.
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  Speaker 1: Always get the truth from you, Judge and Napoloton will
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  Speaker 1: be listening for Judging Freedom your podcast. We're out of time.
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  Speaker 1: I would like to elaborate on that, but you know
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  Speaker 1: how much I love having you in the show, and
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  Speaker 1: I certainly appreciate your willingness to come on every week.
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  Speaker 1: Can the President disrupt free speech? Find the calumn tonight
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  Speaker 1: after midnight, Judge, until next week, have a fantastic week,
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  Speaker 1: my friend.
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  Speaker 2: Thank you, Brian, all the best, go ID.
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  Speaker 1: Love you forty five