Well whiskey, come and take my pain the moneys.
All ray whiskey. Why think alone when you can drink it all in with Ricochet's Three Whiskey Happy Hour, Join your bartenders, Steve Hayward, John You, and the international Woman of Mystery, Lucretia.
Where they lapps it up it David, ain't you easy on the shoulder, so tap you gotta give me?
Well? Welcome everyone to a very very special edition of the Three Whiskey Happy Hour in our I believe this is our third reiteration of the new and improved three Whiskey Happy Hour, the New Coke, and we are very excited to be here because all of us are just thrilled to death about all the winning, winning, winning, And I'm not yet sick of winning, but I'm hardly keeping up with all the winning every time I turn around.
I just got an email from so When saying, did I see that Trump is has tasked a US transportation command with providing C one thirties and SEE one thirty seven's to be used to deport violent illegal criminals because he could do that, right, John, I'm going to ask you this because he declared the border situation and emergency, and therefore he can he can use his powers as commander in chief to direct the military to do things for him. Is that correct?
So I actually was worried about this because you know, under the posse comittatis, actor not allowed to use the military to enforce a law. So I think, like the military can go to the border and stop anyone from crossing it, I don't know whether they can enforce immigration law. So it's actually a really tough question. So what the Trump people did, and this is where it's it's unbroken ground.
I mean, this has never really come up before. Is Yeah, he declared not just an emergency at the southern border, remember he did that last time. What he actually declared was an evasion was occurring across the southern border and triggered under his commander in chief power the use of the military. So actually, if you read the order care you know, the journalists, I don't think they've caught on
to what's how serious this is. Is Trump has he has not declared war, but he has triggered self defense on the southern border, and he's actually said that the immigration waves are laws are kind of suspended across the southern border, and so if they're suspended, that's why the military can then, right, they're acting as the military take people and fly them back to where they came from. Before you have such a declaration, you can't actually do
that under the Posse Comittatis Act. So this is a really big deal, right, because this is I think the first time this has happened. And I don't think anyone any I haven't heard anybody watching this, uh understand the significance of it.
Well but John, but John, Uh, I mean, first of all, what it means is Trump or someone around him is clearly Listen to those episodes of the Three Whiskey Happy Hour where we were testing in you right, I thought you were. I got to beat you to it, right, so you got skunked on this point.
But I lost. I mean, I'm happy. I don't I don't think there's an invasion going across the southern border. But the past I know has declared it. You shouldn't double down right now.
But bo wait, but John, come up.
It'll eventually be tested in court. I'm not sure that's but but this is really uh, you know, this is of all the things I read in the orders, I think I read all of them. This is the most daring, bold, significant one.
Okay, So the interesting thing what you said is you don't think people are paying attention. What they're doing is silly things like putting pictures out of of poor women crying because they you know, shut down the CPB app and now they shut it down and all the appointments are canceled, and they tried to flood the zone with pictures of these poor people, except people kept pointing out
it's Martin Luther King day. They didn't have appointments today anyway, what are you talking about, you know, and things like that. So my point there is that all of their attempts to make all of us mega people feel guilty about deporting illegal immigrants and all the other things that Trump is actually getting away with doing right now, it's not working because you just pointed out they're really not focusing on what's important. They're just going with the old playbook.
Well, I think, well two thoughts quickly. One, John, I think you ought to be delighted with this, whether you agree about the conditions on the board or not. It's, you know, the exertion of executive power that you generally and specifically defend over and over again. Right, okay, But the second point is to what you both have just said, is I think what's going on here is Trump is flooding the zone. Maybe you just said that, Lucretia, and by the way, people have been observing and saying this
is what's going on. But the left and the Democrats, but I repeat myself, are simply too undisciplined to figure out a strategy to cope with it, how to put a how to do a hierarchy of priorities. That's because the progressive is everything's a priority. So you know, if Trump just did two of these' that's what the press
would be all over instead. I mean, I don't know if I doubt Elon must thought of this ahead of time, but if he had, what a genius move for him to give a what what the left run off and say is a Nazi salute, and that's what the media is focusing on on and maybe and meanwhile, Trump he used all these executive orders.
This shows how clever you and Lucretia really are, because of course, you like guard debate on immigration had us focus a lot of time on birthright citizenship, which doesn't matter that much in terms of the numbers. But the left is completely focused on birthright citizenship. They're talking about they've already filed a lawsuit against it. There's going to for me too. Yeah, there's going to be hearing, I think this week in Washington States. It's been scheduled for.
But that's not the most important issue. It's this triggering of the evasion clause and the deployment of the military to the border that's as remarkably, way more orders of importance than birthright citizenship. You're right, because the progressors are not prioritizing things properly.
Well, it's because they can't. But yeah, I mean I think, yeah.
I mean, they really are just becoming obsessed by the dumbest things. I mean that stupid bishop thing. Oh I can't. Yeah, I don't think it's fair to call her a woman because anyway, miss at the National oh the Bishop, Well, I mean, so she was out there, she was on the view, she was on the CNN, she was even talking about as if anybody Trump insaulted her and moved on. But they're going to obsess about this stupid, dumb lesbian bishop for you know.
Two quick observations about that, or maybe three one is I think that she's probably racked with liberal guilt and trying to make up for all those decades when people said the Episcopal Church was the Republican party at prayer. That used to be the cliche, right, that's long since God second God, well second, literally, I thought she made a huge blunder by saying, how did she put it?
But she betrayed no, no, no, no. She betrayed the sort of paternalism and condescension of the cultural left by saying, you know, these are the people who clean our houses and stalk our shelves and prepare our food. She's saying, you're threatening our cheap servant class. I mean, I mean, if you think about that for a minute, what a way to describe this set of human beings. As you know,
the left always says, what you're marginalizing people. What did she do with those particular characterizations of the people she thinks for being affected by all this? But just said last thing, you know, the numbers John, this is a general point, and then I'll stop the numbers here. In the first few days are what during Biden's administration, You're getting ten to twenty thousand people a day apprehended at
the border who've never let go in most cases. I think it's been under a thousand the first forty eight hours of Trump, which shows, you know what, you can control the border, and you know, it turns out well. But in the view for the under Biden and you know, the conventional wisdom is, well, you know, what can you do to stop then we can't. You know, it's really not something we can do. It's a microcope. Actually it's a macrocosm of the super macrocosm, which is the incompetence
of modern government. It's a big theme for me right now for the government's increasingly incompetent and about doing what they should basically do. Control crime, you know, fill the potholes, things of that kind. They're no good at that. But they're going to control the globes temperature and you know, okay, also stop there.
Yeah, I know I don't necessarily disagree to you, but I have to say that I don't think in this particular case that's what's necessarily happening. I think that the Biden administration purposely decided they didn't want to control the border.
So it makes it a little bit different. But the thing I talked with you guys before the election, actually about the concept we were talking about, you know, how you might actually deport all of these what twenty eight million, thirty million illegal immigrants now in the country, and how you know it'd be too expensive And that's all we've already seen that. All it takes is you're not welcome here. And not only do you not see people coming here,
you see people leaving. You see people shutting down their operations that they ran with, you know, impunity before you you And that was my argument that welcome sign.
Mitt Romney was right self I could resist.
No, I mean, but Mitt Romney is an idiot. It doesn't count when he says something halfway smart. No, I mean, he talked about self deportation, but you called it the infelicitous term he used. I don't find anything infelicitous about it. Yeah, you know, you're not welcome here, you can't work here. If somebody hires you, they're going to be punished. And we fix our broken immigration system.
By one dominating thought, which we don't need all the pieces for. Is this again, this is a political scientist and historian. The conventional wisdom in second terms for presidents is when they have trouble and go badly, they run out of gas and the people are tired and leave. I think again, the oddity of Trump is that he just as he inverts everything else, I think he has just inverted the typical cycle of presidents. He here's my point.
He already had his second term in the first term with you know, you know, unstable staff changes, not sure what they were doing. It went very well for a while, then COVID came along and wrecked everything and all the rest of that. This feels like first term, and the people coming in are much more. It reminds me of Reagan's first term, when you know, many of the people, not all of them, were really sympatical with what Reagan wanted to do. The appointments at this time around, well,
just give you one example. You know, one of Trump's many mistakes going in in twenty seventeen was he listened to the Republican establishment. It was Condoleeza Rice who talked him into appointing what's his name, Derex Tillerson, second terrorist. Right nowadays, he won't call condolly'z A Rice to wish her a happy birthday, or maybe you know, hey, if I start a football league, would you run it? Maybe
just for fun, but no, he knows better now. He's not going to appoint a big name just because condolliez a rise to somebody else says it's a good idea, you know, Madis. I mean I always thought well of Madis.
I still do in some ways. But that was a mistake and he's not doing that this time, right and so and then the speed and the clearly as you mentioned to us, John and the pregame show, they thought these executive orders out ahead of time and really worked through the language carefully, unlike some of the ones in January twenty seventeen. They were a little slap dash and lost in court quickly. So this just seems so much
more deliberate. And I'm sitting here thinking he's going to have a great second term.
I think we're overdoing it a little. Maybeah, yeah, I think a lot of a lot of what this is a funny thing. I think a lot of the things that are making you happy is just that he's reversed
the Biden years. Yeah, Like just a lot of the orders are just if you look, a lot of the orders, I mean a lot of you know, many of them are affirmative new orders, but maybe the most important order was the first order, which reversed something like twenty five different Biden executive orders and kind of returned the world to where it was in twenty twenty.
Well, actually, John, I I mean, let's pick just one. I didn't want to get off. And you know, a lot of these could be talked on a great length, but his reversal of the famous affirmative action Executive Order eleven two forty six made in nineteen sixty six. Right, you know, the reagular administration and the second term had a huge battle ed. Mees and Bill Bennett and several
others wanted to rescind it. The rhinos in the cabinet, Elizabeth Dole, of course, Bill Brock and Labor, and I think the Chief of Staff Don Reagan was a squish on this. They also, oh, we can't do that. And one of the many things the opponents did was get corporate CEOs to call up Reagan saying, oh, please don't do this, we really need to have affirmative action. So they up not doing it. So they chickened out in the end, right, and now Trump just said I don't
care what you know. I'm doing this thing and it's popular.
I mean, yes, no, no, no, John, Let me go back to what John said, Steve hold On. What he said was that this is merely undoing what Biden had done,
as if I know what you're saying by that. But my point is this that the march toward leftist progressive policies and regulations and all of those things has been almost inhibited now since since Roosevelt practically, and that's too strong to say it like that, but this is I mean, did anybody think two years ago that we would get to the point where I could go in and say I want to fire my DEI professional because to do
to keep him? You know, of course they're changing titles and things like that, but the whole idea that all that's been turned on its head. Sure somebody can come in in twenty twenty eight and try to reduce some of those things, but it's not going to be the same anymore. That it makes a difference.
That's my point is is, yeah, sure a Democrat could come in in twenty twenty nine and say, oh, I'm going to reinstate the Affirmative Action Executive Order, well, yes, they have the power to do that if nothing changes legislatively, But I think then people will notice and it will be unpopular, and so that's why I think it won't work. I think you're right, they've changed the ground on all this. And oh, by the way, on the DEA stuff, I want to do an article of this if I can
find time. We know what they're doing. They're changing the names or moving people around. They're calling it belonging and advancement or something like that, and so that'll be hard and well, I think they actually dropped that word too. My point is is the whole racket depends on a common vocabulary of cliches. They won't know what to say. I mean, but the last several years, I've said, you noticed that every statement from a DEI office sounds the same.
They use the same sentences, the same cliches. And now they're going to invent the whole new vocabulary. And if that becomes too obvious, then you just go after that. I think that it's I mean, they'll try, and I'm not being complacent, but I think it's gonna be funny to watch them bob and weave and it'll just be incoherent.
So another thing that, of course I'm thrilled to death about. And then was more than pleasantly surprised when John sent me his wonderful article from Newsweek Today about the pardons, which Steve will to in the show notes. Even though I did put it on my Twitter at all, seven of my followers read it and liked it. Actually more
than that. But it was a great article. And and part of the reason that it was great, I mean, you're a partisan, John, You're not as much of a partisan as I am, of course, but you're a partisan. But you did. You went out of your way in that article. And I guess I shouldn't leave out your your co author, but I don't know him, so I'm just giving you all the credit.
I don't think I think John made him up.
But anyway, okay, that's fine, that's okay. Then I don't feel bad. But but it was. It was just a straight up analysis of of the use of the pardon power by Biden, by Trump, and all of the the details that people may or may not have been thinking about that that show how one even if you disagree ultimately with what would what we call it the substance of who was pardoned under Trump. Uh, what the way
that Trump went about it. The exercise of the power itself was in fact consistent with the Constitution and appropriate, whereas Biden's I'm going to stop talking because you did a better job. Tell us just a little bit about the conclusion you came to, John, Well.
Yeah, I tried to write it without regard to the individual cases, just the use of the power, and Trump's is much more in keeping with tradition. Or he didn't preempt anybody, and there were no preemptive pardons, right. What he did was he actually waited until after the cases were all prosecuted, and a lot of these people already
spent time in jail. And you know, I was trying thing the equivalent of if Trump had followed Biden's example, he should have pardoned all the January sixth defendants on January right in January seventh, twenty twenty one, and never let them be investigative prosecutor. So this idea of using preemptive part gardens in this mass way, I think is quite dangerous. So the other thing, the second big difference is, and I think this is tisen with Steve's point about
the presidency in the election. Is that for good or ill. Trump campaigned on it, like he went to the American people said, if you elect me, I'm going to pardon all. In fact, people didn't believe me he was going to do it. Even his own vice president didn't believe he was going to do it, right, but he parted them as well. It's very hard to say that this is an exercise of presidential power that the American people disapproved of because they knew he was going to do it
when they elected him to office. That's also very different than Biden because Biden told, you know, before the November elections, he said he wasn't going to pardon Hunter. Then he did it. I mean, he actually broke his promise to the American people.
Those are two, really, I think.
The butt and the last thing. And this is what Trump's going to have to do now, because this is just part of the cycle of lawfare that the Biden people started. Is not just he pardoned his family, his political supporters, members of hisministration. I want to blame Trump when he leaves office for Greg doing a mass pardon. For every single person who serves in an administriction now and every president's going to do that from now on?
Do you think that really will happen? Or do you think that maybe there are people who say some of the norms are norms, even if the Biden crime family corruption destroyed those norms. There are some things we just shouldn't do. I mean, I don't think Trump's going to go after his political opponents with the kind of lawfare Biden did, even though that practice was that that norm was broken. I really don't. I don't think he's going to would Trump?
Why would Trump trust Democrats, not just federal ones, but the ones in cities like New York and Atlanta? Why would he trust them to leave not just him, after the Hospice family and anyone who served in his administration alone, after what they just did the last four.
Years a federal presidential part and wouldn't stop all of those you know, brag and Fanny willis uh corrupt hacks. So you have to I mean, I get what you're.
Saying, But can I just say before we move on to Cretia that John you're the byeline of the article is John Hu and John Shoe. I don't believe there is a John Shoe. I think that's you under suit in him on the blowback.
Right.
I've never heard of this guy. I've never seen him. Oh, he's a great guy.
He's a lawyer in Orange County. Actually he's a Californian too. Oh okay, likes he likes you know what he's strings. He likes mc ribs.
Also, Oh that's why McDonald's. I get it now, and now it all comes clear.
Okay, Well, anyway, I really do encourage our listeners to read it. It's it's got all the excellent arguments you need for in case you come up with somebody like my idiot troll Center Senator Mark Kelly, who says, oh god, this is terrible. I'm the son of two police officers, and I am just I am just you know, the traumatized by what Trump.
Yeah, what about the murderer of that that commuted who killed Yeah, I mean it's.
Murdered Ashley Babbitt. Yeah, anyway, yeah, I know, I know. Sorry, Okay, I'm done with that because we want to move on to our main topic. Even though I could discuss this with John all Knight. Our main topic today is the First Amendment. Steve hopefully isn't going to do what he threatened to do. And uh, start this discussion of freedom of speech with a discussion of John Milton and John Stuart Mill made me think of wait, wait, Steve. It made me think of that great line in Animal House.
I find Milton boring. Missus Milton finds Milton boring too.
I don't remember that line.
Oh god, it's a great line. It's a Sutherland.
Uh what's his name, Donald Sutherland?
Donald Sutherland. When he's standing there and he says, Okay, I come on, I get it. I find I know, you find Milton board. I find him born too, So did missus Milton. And then he takes a bite on the apple. He says, but this is my job.
I don't remember that, you know, I didn't know it was I don't remember it was Milton. I remember him saying those lines, yeah it.
Was Paradise Loss, that he has signed Paradise Loss. And he starts, you know, droning on, and nobody's paying attention anyway. Okay, sorry, I'm done.
Well, actually I can't resist the cultural comment about my job. I mean, you may know the story that they needed a big name for the movie. Sutherland was the big name, and he agreed to do one day. They shot all the scenes in one day, for which he was paid thirty five thousand dollars. Now they offered him i think two percent of the gross, which he didn't take.
It.
He would have made, like, you know, twenty million dollars or something if he done that, the biggest mistake of his life. Right, Okay, I think that's a funny story.
I know.
But you know what if fameous the passion of the noblest mind, the ruling passion of the noblest mind. He's very famous for being in animal House.
Yeah, well, look, it's not that one to talk about Milton and mill and all the rest of that. Let me work back to it this way, because it actually connects to you. John's latest response on our natural law argument, where he says something wrong in every paragraph, it seems to me but Row right, well, what do you high? No, I've got to telescare ten year old tonight is what
I'm drinking. But well, no, at the at the end, you actually borrow the arguments of who was it two very bad people about how the First Amendment exist in other civil rights to protect democracy, And see, I think that's backwards. Constitutional democracy is designed as the Declaration of
Independence teaches to protect our rights, including free speech. Now, the older views version of free speech, which does have its anchor, and people like John Milton especially but not so much John Stuart Mill was that speech was the tool to help us reach truth. The utter philosophical view of free speech is based not on reason but on skepticism that any truth can be reached. This is Walter Burns's point in his great first book, Freedom Virtue in
the First Amendment. And by the way, he wrote the chapter on Milton and the famous Straus cropsy reader, and one of the things he teases out, I can do this Lucretian two sentences is everybody reads Milton superficially in the Aeropa gillicar wherever it's pronounced. They say, oh, Milton was the great tribune of free expression, because free expression,
you know, it is great. It reaches truth. Vital to his view on free expression was individual virtue, and only a virtuous people could be trusted with free speech because then they would advance virtue and could be self governing. The implication was if you lost all that, free speech would become a danger. Okay, fast forward to the twentieth century.
What the Supreme Court does. And this is what Frank Canevan taught and also Walter Burns, was we have traded some view of the reason of free speech and instead we've converted. Well, we're all looking for limits. What are the limits? It's a free speech So in the Shank case, it starts everything sort of clear and present danger. Is
there a danger to national security? Right? And what Burns goes through very carefully, and I can't even begin to summarize it is that was never applied consistently or coherently. They're always making stuff up and that's part of the whole balancing test story of the Supreme Court. But the limits where they find the limits are not on some view of free expression and its contribution to virtue or freedom. It's always they'd converted an action, right, So is it incitement?
Is it going to cause a riot? Is it a threat to national security? And so finally you come to you know, Cohen b. California, where they say, well, you know, one man's lyric is another man's poetry, right, and you know, right, the guy who had the the F word on his T shirt, right, which, by the way, yeah, I think I think it's correct. That the word it was on the shirt was never mentioned in the oral argument are by of the justices in that case, which tells you
what there was still some sense of decency. See Walter Burns thought decency was a real thing, tangible thing, not a subjective by the way. Yeah, well he he he and Walter agree on that and agrees with Frank Canavan. Right, so some in other words Canavan in his great book, Well, actually it's in one of his columns. Uh, our lawness has abandoned reason as the foundation of liberty and a substituted skepticism. I think that's.
Probably heard of this guy.
Who is this Sky Cavan Cavan Heather to you.
Yes, well he's Jesuit father. All I need to tell you, John, is that he and Harry Jaffer are the same high school together and graduated in the same class in Brooklyn way back when. And the rest.
He's a Straussian Biosmoses.
Yeah, he came to our Harry and Harry Dog and Pony show one time.
Yeah. Well, his his book and I'll try and link to it, except it's out of print. It's called Freedom of Expression Purposes Limit. It's got some of the best argument.
My version of it.
Steve pieces, well, what is this argument that's different?
Well, well, now see, I'm going to make Lucretia impatient, and she'd be right to because I haven't organized to summarize it, so I won't try.
You don't need to, because I want to ask John some questions. Good, you can think about it and if it becomes relevant.
Now that wasn't That wasn't too tedious, now was it.
Lucretia just probably didn't add all that much. Oh, okay, it wasn't terrible. But but last time we wanted to discuss and Steve wouldn't let us. Uh. The whole concept though, of the Supreme Court's attempt to put what they thought were reasonable limitations on freedom of speech. And there are lots of different ones. Steve mentioned some of them. You know, a speech that presents a clear and present danger that indeeder's national security, the speech it causes riot, you know,
those sorts of things. But John and I started and Steve stopped us last time talking about the question of libel and I think that the United States may be you can probably give me a better answer to this, John, but it may be the only uh, democracy republican form of government that actually considers libel a violation of the First Amendment, but uh, you know, tries to tries to create rules around it. In most other countries, you can easily be prosecuted for libel. Is I guess what I'm
trying to say, I'm not saying it very clearly. Does that sound right to you, John?
I mean, I think that the United States has probably the broadest free speech and free press rights in the industrialized world, you know, on multiple issues.
So right, I know, I believe that too. It's going to say it at the end, But.
Like the Kingdom, they don't have anything like the absence of malice standards. You have this weird legal situation where you can publish a book and in the United States the book can't you can't sue someone for libel even though and then in the United Kingdom people will go to the United Kingdom and sue the authors there for
the exact same book. But I wanted to just briefly explain the difference I had with Steve, which I think the difference I have is I always thought was the conservative critique of the Supreme Court's First Amendment case, where you know, the Supreme Court doesn't limit speech full free speech a protections just to political speech. Right, So they provided to pornography, they provided to alleged art like the
crucifix and the jar of urine. And so I thought that the idea that the real core protection for First speech should be political speech because it's necessary to engage in self government was traditionally the conservative argument against progressives who want to expand speech to inform, and they're the ones who That's why I'm very puzzled by Steve's claim that, you know, First Amendment is this kind of free speech, is this kind of right the pre exist government, And
it's much broader than what we should would think it is because conservatives really oppose the effort of progressives to try to turn speech into this kind of autonomy self slash self actualization, right, which is just about right. It is about you expressing yourself, right, that's all the free speech itself protects everything. Yeah, so I'm surprised to hear that Steve comes out with this sort of a sort of Nike approach to the First Amendment, which is just doing.
No, no, no, no. First of all, okay, I didn't I didn't make myself clear on that point. That's actually Canavan's book is called wait, it's called Freedom Purposes Limit and so so narrowly speaking, you can make an intelligible distinction between speech which relates to political purposes and expression which means naked dancing.
Right.
And when I say that the modern uh uh jurisprudence on free speech and our Supreme Court has is based in moral skepticism, that we can make that distinction. That's my argument. The three statement I just said it. So that statement I made comprises the distinction you just made. But you're saying that you missed that somehow, you're saying that the you're allergic to metaphysics. We know this.
No, no, you're But your point was that the right to free expression of every speech what everyone call pre exists the government right. It's a natural right. Well, it's not just limited to political speech or the speech necessary.
No I'm not. I'm not saying that.
You're not saying that, no one.
Well, no, you didn't. I mean, and here's where I think lucreature the way you said things. I mean, let's introduce another angle here, which was all the first amendments said Congress shall make no law a bridging the freedom of speech or of the press. They did not say what New York Times versus Sullivan said, which is a higher standard for libel and slander in other words, the very earliest days in the Republic. In other words, it meant,
as we say today, no prior restraint. That did not mean you weren't liable for something that was slanderous, libelous or seditious. Soeditious libel was still prosecuted actively in those early years. That's part of the basis of the Virginia and Kentucky resolutions. What was the alien right? And the courts had no problem with applying punishments for seditious and libelist speech after the fact. And so by the time you get to New York Times, I agree.
I agree on New York Times versus Solion point. I just don't think that that's the that's the central issue for first gonment.
Well, we're making progress with John Lucre.
I don't even remember the context now that they're looking at prosecute the Trump administration is looking at prosecuting some former Biden administration officials under the seventeen ninety eight Sedition Act.
You mentioned that I think that's going a little too far.
You don't want to resurrect the aliens edition XT to you really.
So it might be the retribution for resurrecting the Logan Act.
I don't know.
I thought, I think that's go ahead.
Well, I think the action such as you know, where the action for First Amendment rights is going to be is not the change in the New York Times versus Elivan's standard, though that has been corrosive in a way.
But I think it's going to be actually, how did you put it, different kinds of speech, like speech by government employees, speech by social media like I think that's the going to be the harder thing, Like the case that we saw with the efforts a COVID censorship COVID censorship, remember the government not prohibiting the speech itself, but trying to persuade social media companies to do it for them.
I think that's where the real hard questions in the future are going to be about the free speech class, not so much the standard, but what comes within the scope of free speech at all.
I don't disagree. I do think that they'll probably revisit the absence of malice standard. My point we discussed briefly the last time is that they've begun in many ways, because it's probably so hard to figure out who is and who is not genuinely a public figure, they've begun to to apply some kind of malice standard to any libel suit or slander suit, it seems to me.
But my.
Back to the Missouri versus what was the actual case that went.
To more important Murphy Murph the case about book.
Yeah, and I would say that you're probably right, and a little bit of proof of what you just said about how those are the most difficult issues is that the dread coward Roberts refuse to take it up. And of course it's turned out that that you know, they're the whole standing the issue that somehow Missouri didn't have standing.
I don't know how they did. It's so dumb. But one of the most important questions that the Supreme Court has ever been asked to decide, and one critical to I think critical to the success of our republican form of government, is that the government cannot use the means of communication out there or the media, whatever you want to call it, whether it's social media or otherwise, coerce it into regime propaganda, which is exactly what happened during
the Biden administration. And again, Roberts is such a coward. He just punts on the issue, refusing standing. I think that they're going to have to decide that issue. And all of the evidence indicates that the Biden administration was corrupt and tyrannical about it.
I mean, I only one of the executive orders actually that Trump signed has called something about ending censorship by the federal government, and I think he ordered every federal agency and include the Justice Department, to try to collect information on any kinds of similar uses of social media by the Biden administration, of the last or even before the Bide administration. But it focuses on the last four years and report it to the public and to determine
whether any laws were violated. So we may learn a lot more soon about what the government did to deep platform and censor people.
Let's take a quick break for our sponsors and come back and dig into this a little bit deeper before for Steve makes me shut the whole thing down. You know who he is. So this whole thing about freedom of speech, libel, we started talking about it last week and never finished because of the ruling against CNN. Now, as I recall, it was the Navy Seals and it last name was Young. He had been he had been libeled by CNN, the first and most important aspect of
any libel cases, whether or not it's true. There was an early ruling by the judge that what CNN accused him of was absolutely not true. But they did have to John, it seems to me, in order to continue the case. They were showing the malice, not just that. They were showing that not only did what's his name Jake Tapper, Jake Tapper and others know that what they said wasn't true, but they were saying it was with actual malice. They were saying it purposefully knowing it was untrue,
et cetera. So explain that a little bit too.
Well, just to add for listeners. I mean, they had the emails of the producers saying, I'm going to nail this m effort. I mean, the motivation to get this guy was clear. I mean, you talk about smoking guns and by the way, I didn't you know did CNN claim?
Well?
Wait, because of course under New York Times, if you're a public figure, the bar is higher, and I think CNN was claiming, well, we reported on him, that made him a public figure.
Really he wasn't a public figure.
No, I mean, but that's okay, go ahead, John, No, No, I mean.
This is the reason why New York Times versus Sullivan will quite popular, I think with progressives. Just you know, it makes no effort to fit into the original understanding. This whole structure of it's just you know, clearly just
created by judges. So if you're a public figure versus if you're a private figure makes all the difference, because if you're a private figure, then the truth, you know, when the crecious talk about this, or the traditional libel and defamation law that still exists in the other common law countries would go into effect. And that's just did someone say something untrue about you which harmed your reputation.
That's But if you're a public figure, then you have to show and the absence of malice standard is a little misleading in what it implies. So you have to show that the newspaper or media outlet had malice in
some ways. So if there's a yes, So if there's an absence of malice on the part of the press, then they get out of it, even though there's nothing in the First Amendment which suggest public figures our government officials are subject to a different standard than regular people, and that's not the way it is say in the United Kingdom. In fact, I think that Prince Harry or Prince William just won a case just the other day against against the newspaper, So that has just no rooting
in the original understanding. Now, the interesting thing about how the law works is that you don't have to show this this male stander doesn't. You don't have to actually show what Steve was saying. They did show on this trial that they were you know, they had bad motives. It's really more about did you know you were publishing something that was untrue and you decided to publish it anyway? Right,
so you know, did you even could you reckulously? Sometimes there have been cases where the TV, you know, the media outlet has lost because they recklessly ignored all the other evidence that they easily could have seen showing that they were about to publish was wrong. But again that you know where you know so well, you know, I can kind of see where this is why the court decided what they did. But they went too far because if you look at the original facts of New York
Times versus Sullivan. Right. This is a case by a Southern side coggregationist against the New York Times, Right, and for I believe the New York Times published a negative story about segregationists, and so he sued them in state court under common law libel and so the court, I mean, the court just went too far.
But thought they could get away with it because of this, and they.
Did get away with it.
Can I add in what should be an obvious point, but I think has been forgotten And there's something you said about libel laws in the UK, John that prompted this thought. New York Times versus Sullivan is what a private action? The last week's case of CNN versus Young is a private action. The First Amendment says Congress shall make no law, I mean, the government shall make no law restricting freedom of speech. But we've extended that coverage
of protection of the First Amendment in private actions. Now in Britain, as we know, and I think you're hinted at this, and if listeners aren't clear, the libel laws are much more as we would say, liberal. It's much more easy to win a libel case. In court. In Britain, Winston Churchill won a famous libel case against him back in the I don't know the twenties from someone in the paper who said he was a gay or you know, a sodomite or something like that.
Right.
Well, but the difference is in Britain they are able, the government is able to censor people, and they do that much more aggressively than we do. So, in other words, our first member of protections against the government, as porous as they are in some places like Murthy for Missouri bi Murthy proved, are better than England, where this private party is actually has more ability to sue and collect under libel, but has less ability to defend their free
speech rights against their own government. And we need to sort that out.
Well, that prompts this argument that Lucretia, you and I were having by text about whether writing down the rights is more protective, which is what we do in the United States versus a country, whether the rights are not written down like Great Britain. You know, Great Britain. You know, if you talk to British lawyers or British politicians, they think they have free speech there, just you know, they think they have free speech tradition there, just like we
do here. But when you look at it, I think it's a lot of narrower there, yes, than it is here. I mean, you can be right, you can be punished for hate speech, yes, and Great Britain, actually in all of.
Europe, but in Britain, and you get.
I mean, I think the free speech there is a subject to government control the Official Secrets Act, but also to the diversity. The dei industry is much more powerful there when it comes to suppressing speech. I always think that shows that the anti federalists right, so that you know, that might show that may actually show that the anti federalists were right, which is what I was arguing about against before.
But wait, and weren't they taking Hamilton's position that the Bill of Rights?
Yeah, so that the English would be taking Hamilton's position and the anti federalists would be taking the position we're talking about now that actually maybe the anti federalists were right that writing down the Free Speech Club. That's not the position I was taking in the arguments we had. But I'm just saying crompt those positions. We were just talking about.
It, and I just say, if we keep changing places, John we're going to confuse gen Yarborough stop.
I actually want to take that up because I'm not necessarily disagreeing with you. My point is a deeper one, John, My point is, and it takes us into the last section of our discussion of this My what I want to bring to the table. My point is that the education of Americans in their in their freedoms. I'm not even going to call it rights. I'm going to call it freedoms. The education that Americans fully understand that government cannot should not make laws abridging their freedom of speech
is in and of itself a powerful force. And I don't necessarily want to go back into that whole discussion of the Bill of Rights. I think we should concentrate on it and do a really good job time in the future. But what Hamilton's saying in his argument against it is that what you do is you educate the
people deep. The deep point is you educate the people to believe that Congress can do whatever it wants to do unless you carve out from that certain rights for the people that stops them limitations on Congress, where in fact, a written constitution is nothing more than a grant of power to Congress whether you know, it's very difficult for me to argue that Hamilton was right, because we've had a Bill of Rights, we've had that education of people
of the American people for you know, over two hundred years now in the their freedoms as outlined in First Amendment, et cetera. The question again, really interesting question, I think that we could spend a long time about. But what I would argue is, regardless of whether it came from their fundamental understanding of their sovereignty or they're being educated in the freedoms they have under the Bill of Rights,
Americans are very much committed to it. And it turned out to be, in my opinion, in many ways, the difference in this election, because what you had were enough Americans upset about the fact that the Biden administration was in fact using its powers to force the regime message and force all other messages out of the marketplace of ideas. And then you had some but this guy, you know, this crazy autistic guy who says, wow, this seems to
be problematic, and he buys Twitter. And Twitter's not the only place where alternative views get put out there, but it's a pretty important one, and all of a sudden, all the attempts by the regime media to control the flow of information were destroyed. I mean, I don't know if you guys saw to forget which congressman really great guy. He's talking to somebody at CNN. Uh, yes, what was his name? Who's the Yeah, that's him.
Oh, Jim Acosta, though, Jim Acosta.
He's talking to Jim Acosta, and Jim Acosta gets really upset. They're talking about the pardon John, and Jim Acosta gets really upset, and you know, insists that CNN showed all the horrible violence, how many thousands of police officers were killed by January six protesters. And then it was on our news and it's or you're not talking to Fox here, You're talking to CNN real news. And the congressman comes back and says, that's why more people watch episodes of
sp SpongeBob, was it called square Pants? Yes, then watch CNN something along those lines, and it was just hilarious. But the point is you can do that now. It used to be that CNN could control the narrative most of the time, and before that it was you know, Walter Cronkite. But in anyway, So enough about that. My further point is that has spread. They don't have the
same protections for the First Amendment in Great Britain. But all of a sudden American commitment to freedom of speech and social media, worldwide Internet, et cetera, et cetera, and all of a sudden you're seeing it make a difference in places like Great Britain.
So I think you're making two different points. So I could I could totally take the argument that Americans now have lost their connection to the sort of natural right environment to the founding, don't think of rights as being unenumerated and really sort of think of rights as those in the written document. I don't think that's the fault of writing them down in the written document. That's a what you're talking about is, you know, much bigger, deeper issue.
I don't think it's really affected by the writing of the rights down or not. I mean, because again, look at England, right, they did write the rights down. I would say they have even less of a view of rights being unenumerated and inherently natural than we do now. I do think though that we always no I don at the time of the Founding, the founders thought they were,
you know, we're storing English rights. I mean, I think that we might have started out the same point that what's interesting is how rapidly they lost it and we kept it. But the other thing I want to just point out is I think the writing the Constitution has this beneficial effect which is and this is an argument that people are having about the Founding, which is, is
the Constitution a legal document or a political document? And so sometimes I think the creature you're suggesting the constitutions a political document, but it is also a legal document, which means that you can go into court and you can defend your written rights because the rights are are right set out in the document. And that's that's something
that Marshall's says for the first time in Marbury. Well, the Constitution is not just this political document which you use just for self organization and you can look at to take his inspiration, but it's also something you go into court and it makes a difference you win or lose cases based on it. That's something that's new in the That's what the Americans. Event we get written constitution.
That's right, all right, But the number of our argument about natural law, John and not to divert here. I'm just gonna plant this for now. Is that the debate is, I think, is how much of the political side of the Constitution needs to inform the legal side of the judgments that come out of it. That's a short sentence for a lot. But look, I want to back up.
Use some kind of like intellectual Johnny apple Seed running around throwing all kinds of seeds hoping they're going to grow. My job is to take a big food and squash them all.
All right. First of all, just for listeners who may not know exactly what we're talking about, it's is it Federalist eighty four or Hamilton?
Yeah, so I thought we were going to do this tonight.
No I'm not. I'm just gonna say as reference and then get back to something you said, Lucretia. What Hamilton says in eighty four is a bill of rights to be dangerous because we leave things out. So the way I explained it is people the legislature comes along and says, well, the Bill of right says we can't you know, take your guns away and bridge your speech. It didn't say we can't tax dwarves, right. I mean, that's sold sort of common law contract law language.
I'm all for taxing Dwarves me too.
Starting with Robert Rice, you should have one hundred percent. Okay, but see Lucretia. You had said something interesting a second ago, very quickly, which was what I think John said. Americans think their right to free speech is anchored at First Amendment, and in modern times you said they always did. I'm not sure that's quite right. And here's my proposition. I'm
conflicted about this. Let me brief detour. I think you've been president John when I have dissented with Alan Dershowitz and Dean Chamerinsky saying I may be the left of you guys. I'm not convinced the Skokie case allow the Nazis to march in nineteen You have that weird design it right, I know, and those guys are the PUREU and you know Durschwitz is part of the case. Here's my point is, I think Hamilton might have been right
until maybe nineteen eighteen. I mean, we can pick a lot of arbitrary points in cases, but it's when you get to the shankcase I mentioned, they give us the clear, clear and resent danger test and all the ones balancing tests afterwards that have made a mismash of the First Amendment. The nowadays people wake up and said, thank god, we have the First Amendment and the rest of the Bill of Rights. By the way, the Bill of Rights never came up in federal court in the nineteenth century. Why not?
I think it's I think because at that point Hamilton's instinct was people understand the rights, they don't need to recur to a written statement. That's where I.
Think this, and I think it's different actually because Hamilton was right because he said, remember in eighty four he says, the reason why you don't need to write down the rights done is because otherwise you would imply that the Federal Garment has power powers. Right yeah, and until right until the progress in the New Deal, Congress didn't really exercise that much power avocations.
That's the one thing, too, is never underestimate You hinted at it, Steve, but I thought, I think to a different purpose, never underestimate how incredibly damaging our Supreme Court has been to our understanding of our rights. And that's I mean, I don't know that that Hamilton per se ever ever envisioned that to be the problem, because he seems to you know, to go in the opposite direction.
But my favorite example of this is what happened during COVID, and you actually had that scumbag Roberts on the Supreme Court refusing to exercise power, saying, of course you have a First Amendment freedom of religion, right to ignore any damn executive order from some community health person that you can't go to church. Well, they can go to uh just well the casinos could be open. I mean that
that in and of itself. The fact that we listened to that idiot have anything to say about what we could do during COVID is it To this day it makes me so angry.
I could just scream and you know you shouldn't motives to John Roberts and call them a scumbago actually just applying standard First Amendment doctrine unfortunately, and it was close, it was five to four.
I think.
That's my point exactly, John. I don't care what the Supreme Court has to say about my risk, Okay, use a different.
One point is that the country does care in the country.
And that's we have to. They don't have to, and I wish they didn't. I wish they didn't care what the Supreme Court said. I wish nobody cared. But anyway, because you know, we're every article I've been reading on birthright citizenship, well that this will be up to the Supreme Court to decide whatever UH think about. Let me do this one. Let me do it really quick, because
we're almost out a time. The right to privacy. I would argue that if our constitution, who is it in the descent in Holmes versus us or excuse me, ow instead versus us the descent in there where he said that I can't I won't be able to repeat it tonight. But it's a beautiful passage where basically, if our Constitution means anything, it means that individuals, that citizens have a sphere of privacy into which the government may not intrude. I believe that in my whole heart. But what did
the Supreme Court do? They took the emanations and penumbers of the Ninth Amendment and the Fourteenth Amendment and the Bill of Rights, and they came up with a right to privacy that is what only what the Court defines it as it is so the opposite of what we should be thinking about when we think about the right to privacy. It is, in my opinion, a travesty that how.
Would it otherwise work? Court didn't you didn't have the Supreme Court defined the rights. You didn't have the right to defend yourself in court based on the path rights. What would you do when the government right did things like the COVID lockdown or did things like you know, well, I don't understand what this world looks like.
Here's here's another example that maybe helps answer that question. In twenty ten, after the passage of Obamacare, how many how many seats did Obama losing? Did the Democrats lose in Congress? It was a wipeout. Twenty twelve. June of twenty twelve, the Supreme Court issues its decision in Sibelia's versus and if whatever it is, and you know, it's this muddled up, stupid ass decision. This that the other thing. Oh, it's the main date is the text blah blah blah whatever.
But the point of the matter was they found that the Affordable Care Act was constitutional. Now, Roberts has a bunch of namby pamby blah blah blah in thereabout it's up to citizens to decide when the stupid laws are passed, and they should you know, the blah blah blah, except the world we live in. What was the headline everywhere after that Supreme Court finds Affordable Care Act constitutional. Obama got on the damn stump and said it everywhere he went,
even the Supreme Court said it's a great law. And he won reelection because he lied about it and the Supreme Court was dumb enough to give him something to lie about. That's so what happens. If the Supreme Court had never gotten involved, the people would have kept voting those Democrats out of office and they would have overturned.
The saying there shouldn't be any judicial review, and the Supreme Court no, no, I don't really understand.
Let me try. Let me try. We're running late on time. But the amazing irony of that decision lucreti, it was that the dissent that Kennedy signed on to, I think he actually wrote it where he said there are I think something like their implications to the structure of liberty embedded in the Constitution. Ah. This gets to the wider point that Walter Burns and others made, which is the Supreme Court it's not just deciding cases and controversies. It is,
as Marshall put it, expounding a constitution. They're telling us the meaning of the thing. And that's where Roberts I think, by the way, he had the same education you did. John, that's the problem.
Your turning to Anthony Kennedy is the great welter.
That was natural, right, that was the amazing.
You just do what I just said, Steve, I have no idea what that means.
Well, outright, I'm trying to be brief, and maybe I don't want to take time to explain it. Walter Burns. Is big argument against Holmes, against the Supreme Court is they don't take seriously their duties to be teacher constitutional meaning to citizens. And that's the effect of saying Obamacare's constitutional. It's just up to you people to decide it right. And changing right one of the things. What does he do? He rewrites the law to make it.
There's nothing after Obamacare that doesn't prevent other parts of the government to challenge the decision. And you could say that's what Trump's doing now. I mean, I think the president has this right with the birthright citizenship. He has every right to have the executive branch take a different position than the Supreme Court and to try to push his powers to advance his constitutional interpretation.
My point is that at the very you think about Lincoln's speech against the dread Scott decision, where he says, yeah, sure, the Supreme Court can decide what it wants to who cares. They're not the final say on you know they Okay, dread Scott will be a slave. That's fine. Nobody's going to challenge that. But it doesn't have any impact beyond
that particular decision. Okay, well, we'll give it a little bit of a but we're not going to change the laws of the country because the Supreme Court decided some stupid thing. I think that's how it ought to be. And the problem is what ever, since eighteen fifty seven, we've all deferred. Oh, the Supreme Court said it, we have to do it. And that's the problem because they've been wrong so many times.
John, I think you didn't have the Supreme Court there interpreting, and I disagree. I mean, I disagree the Court quite often. I don't think they're perfect. But if they were not there defending a written Bill of rights and a written reconstruction amendment supplying those bill of rights to states. I think individual liberty in the country would be far worse now. It would be worse like England, or worse than it is today.
I don't but we don't have time to keep discussing it. So when we get you back, John, that'll be the first item of business. Okay. I had a student who said to me that the problem with the Supreme Court is that it took away the people's responsibility to be the guardians of their of the Constitution.
And they didn't take it away that people don't.
Want it, Steve says, I have to and I'll keep it short. I have a whole big list, Steve, but I'll keep it short for your sake. The Babylon Bee has been busy this week. I will try to keep it very short, but it's very difficult. Democracy falls as man who received the most votes becomes president. And I don't know if you guys happen to be sitting there watching the inauguration and it came over. I was watching it with my computer on two clump of cells. Dies
at sixty seven. Do you know what that refers to?
That's the seal Richards the long time.
The person died. I thought that one was good. I laughed, sad Hunter wondering why no one buying his Why no one is buying his paintings anymore? The nation is actually impressed that Biden lived through all four years of the presidency. And just a little bit about Steve mentioned Elon Musk's Hitler No, maybe John mentioned it, Elon Musk's Hitler salute. Liberals briefly pause chanting death to Israel to call Elon
Musk a Nazi. Yeah, right, Yeah. There was a couple of good ones that, you know, the the village people played at.
I wish I'd never seen those pictures.
That was great stuff.
Yeah, and so one of them was showing that the Indian with both arms out in and said journalists horrified as village people performed double Hitler salute. The other one had something to do with Elizabeth warrened made her peace with Trump and was dancing.
Says Trump can't get along with the first people. Look at him dancing with Elizabeth Warren.
Right, Okay, just two more. The first one nothing to do with politics. But you guys travel a lot. I'm sure you'll appreciate this. Babylon Bee fashion tip, Ladies, choose your rattiest set of pajamas to wear to the airport. Okay, final one way to end it announcement the Babylon b to shut down, as there will be nothing to make fun of during the perfect Trump administration.
John got any new stuff yet? Or no?
I mean all I have is always drink your whiskey meat. The Brandon line makes no sense anymore. Now Biden's gone, so we got to think of something else.
But I'll tell you, I'm.
Sure Trump, I'm sure we're going to have lots of material.
Oh yeah, that's right.
Shortly, So have you come up with after always drink your whiskey meat? Steve, do you have a off for us now?
Yeah? Something that has gotten old? Slavely adapt it is. I can't believe how good it feels to say we are unburdened by what has been Bye. Everybody see it next week?
Hm.
I was at the immigration scene, shine and everything.
Could it be a sin?
I heard it stop by.
The immigration man said he doesn't know.
It becan.
D immigration man. Can I crossed the line and grace instead? Immigration man? I won't show you a line today. I can't see it anyway.
Ricochet joined the conversation.
MM hm