Will SCOTUS limit first amendment in light of recent incidents of violence? Wa

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Welcome back to the DIRS show. Yesterday we talked about whether or not Trump was an anti-Semite. Today Trump ordered the United States to veto the... a United Nations resolution that would have condemned Israel's occupation or presence in Gaza. The United States was the only country that voted against it, and it did it and prevented the UN from having a one-sided resolution. The that's.

That's, from my point of view, the good news. The bad news is the Times had a big story about all the research grants that have been terminated by the Trump administration, including research on Alzheimer's.

years old i wanted to be research on alzheimer's research on cancer research on other illnesses so again i make a strong case for targeted targeted defunding for defunding to be focused on those aspects of universities that are doing terrible terrible things the dei programs intersectionality programs programs that focus on kind of specific areas like gender rights and racial rights and regional areas. Those programs have been a source of terrible, terrible advocacy.

universities and toward meritocracy. So good news, bad news.

Times also had a story today that the Trump administration went to the Justice Department. I'm sorry, to the courts to try to get warrants against some of the violent. advocates on campuses and they've been turned down. They've been turned down on First Amendment grounds, turned down on the ground that you can advocate violence. You can call for death to the Jews. You can call for genocide against the Jews. That's all protected speech.

under the First Amendment. And the Trump administration is fighting back on that. In fact, in today's filing, they compared Hamas advocacy on campus to the Ku Klux Klan burning a cross on campus. And of course, politically, they're 100% right. If any Klansman ever came on Columbia's campus or Harvard's campus and burned a flag... or put up a symbol of lynching, plainly, that would not be permitted on the campus.

Without regard to the First Amendment, because these are private universities, it wouldn't be permitted. But comparable things about Jews are permitted. For example, Black Lives Matter sent around, circulated a... a statement in which it showed and glorified the murderers of Hamas. who are using hang gliders to fly into Israel and murder children, burn them to death and kill them. Black Lives Matter advocate that. From my mind...

Black Lives Matter and the Ku Klux Klan are indistinguishable morally, legally, and in almost any... any other way except that the Ku Klux Klan is dead and Black Lives Matter has had enormous negative influence in our society. Now, Black lives do matter. So do white lives, so do Jewish lives, so do Muslim lives.

All kinds of lives matter, but the organization Black Lives Matter fits into what a philosopher put very well when he said it starts as a cause, then it becomes a movement, then it becomes a business, then it becomes a racket.

um he left out the last one then it becomes the ku klux klan and that's what happened to black lives matter so do not support the organization black lives matter do not support any organization that advocates bigotry against other groups whether It's a gay organization, a transgender organization, a feminist organization, Code Pink.

um those are all organizations that are big they're just like the plant uh and many of them advocate violence many of them practice violence and so um the the justice when i planned this talk today this program today didn't know that the Justice Department was trying to get search warrants based on claims that these

protests, these calls for global intifato are not protected by the First Amendment. Currently, they are protected by the First Amendment. But on this show, I'm going to make a prediction that...

myself, personally, I hope doesn't come true, but I think may well come true. And that is that the Supreme Court may move away from The Brandenburg case, which gives the broadest possible protection of First Amendment rights beyond where any other country in history has ever gone and moves back a little. We'll talk about that for a minute. Let's just talk about the Brandenburg case.

for a second. So Brandenburg versus Ohio is a 1969 case in which the Ku Klux Klan Mr. Brandenburg, who was a member of the Ku Klux Klan, got up and made a speech and he called for He couldn't speak English. I mean, he's American, but he was an ignoramus. He called for revengeance. Revengeance. against Jews and African Americans. Ah, the good old days when Jews and African Americans were united. They were united only because they were both victims and targets of the...

of the Ku Klux Klan. But he made that speech. It was a general speech. And there was an Ohio statute that punished quote, the advocacy of the duty, necessity, or propriety of crime or violence as a means of accomplishing industrial or political reform. And he was...

sentenced to a prison and a thousand dollar fine. And the Supreme Court reversed the decision and came up with a new, expanded... uh definition of what's covered by the first amendment the government cannot punish speech unless it meets two criteria first first it has to be quote directed at inciting or producing imminent lawless action

And second, it is likely to incite or produce such action. So the purpose, the intent has to be to produce imminent lawless action. So the question is, globalize the Antifada. genocide against the Jews, are those intended, are those directed at inciting or producing imminent lawless action?

Are those kinds of statements likely to incite or produce such action? Very hard standard to me. Generally, it's been defined to mean only face to face. You're in front of a crowd and you tell them to do something. I had a case like that. back in the 1970s. My client was a professor at Stanford University, and he made a speech against the Vietnam War to students, and he said to the students,

it would be a good idea if you were to take over the computation center and then the students immediately, immediately after hearing the speech, went and took over the computation center. And so the question was, uh was that a call for uh imminent lawless action taking over the computation center was lawless it wasn't violent but it was lawless and they did it immediately

And the case didn't go to court. It was handled by the Stanford University administrative whatever. And a young lawyer named Joel Klein ultimately became the head of education in New York and many prominent positions. uh in in democratic administrations he and i uh he was my research assistant represented pro bono uh bruce franklin the professor who made those statements and we lost um uh stanford fired him first time

in modern history that a major university like Stanford fired a professor for his free speech. Now, what was going on at Stanford was an organization then called the Venceramos. we shall overcome, we shall conquer. And they were firing bullets into the homes of faculty members. And so the faculty members who served on the committee weren't quite thrilled about the mensuremas or about their colleague, Bruce Franklin.

He lost. The case was then settled. And he moved from Stanford to Rutgers, where he continued in his distinguished career as a Maoist, Stalinist literary critic.

I didn't like the guy at all. He didn't like me, but I was defending him on behalf of the First Amendment. And so the question for today's discussion is whether the Brandenburg principle that requires, as I said, that the speech be directed at inciting or producing imminent lawless action and that it's likely to produce such imminent lawless action whether that standard will be preserved or whether the supreme court that was a nine nothing decision

back in the day, whether the Supreme Court will move in a different direction and say it doesn't have to be that eminent. It could be relatively certain, but it doesn't have to be today. But there has to be a causal relationship between uh what's being advocated and and and what's being done remember this was decided in 1969 when the only real threats um were coming not from the right

but largely from the left. This was during the Vietnam period. I represented the Chicago 7. I was one of the lawyers on the appeal in the Chicago 7 case. That was violence directed by the left against the Democratic Party during the 1968 convention. I did a lot of First Amendment cases back. in the day and won almost all of them because under Brandenburg, it was very hard to lose. And so the question is, will the Supreme Court move away from Brandenburg and toward an attitude more protective?

of the security rather than when freedom of speech. Now, let me be very clear what my views on this are, as you know. I'm very good at predicting what the courts will do. I've been called Nostradershowitz because I'm so good at predicting what the courts will do. That's not egotistical, that's just accurate and true. And the reason I'm so good at it is I don't allow my own opinion as to what should.

happen to influence what I believe will happen. Now, I don't want the Supreme Court to in any significant way curtail the Brandenburg principle. So that's my own personal view, my moral view, my legal view. view what should happen. Now here's my predictive view based on my expertise as a constitutional lawyer and as an appellate lawyer.

I think if the right case came before the Supreme Court, they would cut back a little bit on Brandenburg and would reduce the imminency requirement to something a little bit different. There had been a prior formulation by Judge Leonard Hand, which gave more... permissiveness to the state to ban a dangerous freedom of speech, how dangerous the speech was, discounted by the likelihood of it not occurring, a kind of balancing test. But it didn't...

include the concept of imminence. Imminence is very hard. Imminence means like the Stanford case. I'm making the speech now. I'm urging you to do it now, now, now. It's a case in England that... illustrates that very well. There was a mentally ill guy who was holding a gun to a police officer, and there was somebody in the crowd yelling to the mentally ill guy. Give it to him. Give it to him. And it's not clear whether the person in the crowd meant give him the gun or shoot him. But he shot him.

And the person in the crowd was convicted of inciting him because the court interpreted give it to him as shoot him. And so that would be if that's what was intended. For example, he yelled, shoot him, shoot him. That would come under Brandenburg because that would be an incitement to immediate action. Or another example, the two people who got prizes from Harvard about a week after October 7th without a single Israeli soldier being in Gaza.

a group of people surrounded a Jewish Israeli student and wouldn't let him move and were harassing him. And by the way, one of them became the class marshal at the Divinity School. The other one got a law school scholarship of $65,000 to continue with anti-Israel conduct. The question is... What if that crowd surrounding a student had said, get him, get him, get him?

And somebody in the crowd then went and beat him up. That would be incitement under Brandenburg, because that's to immediate action. Now, the immediate action doesn't have to occur.

um in order for it to be unprotected first amendment speech to somebody else get him get him and the police come in and protect them that's still a criminal under brandenburg so the incitement doesn't have to actually have led to lawlessness It's enough if the incitement is likely to lead to imminent lawlessness, but the lawlessness has to be imminent.

And it's the imminence requirement that I suspect the courts will change. Why? Because the law changes with experience. As Oliver Wendell Holmes once said, the life of the law is not logic, it's experience. And our experience now is that calls for violence against Jews in the context of what's going on now.

has produced violence. I have no doubt that the killing of the two young people in Washington DC was influenced by calls for global I have no doubt that the burning of, I don't know, was it 10 or 12 Jews, including a Holocaust survivor in Boulder, Colorado, was influenced by the calls for... a global intifada and by the atmosphere in Boulder, Colorado, which has turned into a sanctuary city, a progressive city, a city where the city council is asked virtually every day.

to say negative things about Israel and only Israel, I have no doubt that those kinds of things have an influence. And courts...

Judges, Supreme Court justices are just ordinary people in robes. They're not different than you and me, and they're influenced by what they see around them. And I suspect that next time a case comes up, if it's the right case, if you have somebody... who's actually standing on a college campus in front of a whole group of people saying

Not now, right? Not right this minute now. But next time you see a Jew, next time you see a Jew, I want you to go over and make him understand that he's going to have to pay for what's going on in Gaza. And if that means we have to direct violence against them. That's okay. Now, that speech today is protected by Brandenburg. I predict that that speech will not be protected in the next 10 years if the Supreme Court gets a case.

like that. Now, will it get that case or will it be the same Supreme Court? I don't know. But I think the atmosphere is changing. I do not think Brandenburg today. on its facts would have been decided by a nine-to-nothing court that unanimously ruled that that speech was protected. And I'm talking about speech much worse than that. I think you can reiterate Brandenburg.

the holding of Brandenburg based on the facts of that case and still say, well, but if you get a crowd surrounding some kids and again, let's do the analogy. Let's assume in the South in 19... 55, a group of white Klansmen in hoods surround a 16-year-old or 12-year-old black girl who's trying to go to class. And one of the Klansmen yells, don't let her go to class, stop her, whatever it takes, stop her. I think the Supreme Court would have said that's not protected speech.

And I think a lot of reasonable civil libertarians would say that's not protected speech. Let me be very clear. That's not protected speech anywhere on the face of the earth. Nowhere. You can't name me a single country, write me a letter if you can't, where that's protected speech. The United States is the only country in the world and in the history of the world that has ever protected incitement to violence that is not imminent.

That's the current rule in the United States. You can incite violence as long as the incitement isn't imminent. You can advocate it. You can espouse it. You can say it's a good thing. And you can even incite it.

as long as you haven't incited now you can say in the future this is not a good time to do it there are too many policemen here let's not do it now but in the future if you find a black kid alone uh in in in a dark street i want you to kill that kid if you find a jew alone i want you to send a molotov cocktail and kill that that kid that jew

That's protected today. Should that be protected? I ask you reasonable people could disagree about whether you want to go too far in protecting speech under the First Amendment or not far enough. But I'm here to tell you. that there's going to be a change. That's my prediction. And maybe I'm not going to be around to be here when that prediction takes hold. But I guarantee you that in the next, what, quarter of a century? Whatever the Supreme Court is, it will not allow incitement to violence.

which is very likely to produce violence, even certain to produce violence, as long as that violence is not imminent. So I think the imminency requirement will be weakened by the United States Supreme Court. Good thing, bad thing. Leave that to you.

here's my prediction. And, you know, it's not a prediction I make lightly. I was on the Glenn Black show this morning, and he was very angry, not at me, because he said, you're not saying it's a good thing. You're just predicting it as an expert. But he's a big advocate of free speech, as are many conservatives, more so these days in many respects than progressives. And so I think progressives.

will be in favor of a very broad definition of protected free speech particularly if it protects them they won't be as interested if it protects the bad guys But free speech for me, but not for thee has been with us in the beginning of time. So that's my prediction. And my predictions generally come true. This one will take time. There is no case currently in front of the Supreme Court that I'm aware of or in the certiorari lineup that would...

make it possible. I have my own case involving a restriction on free speech. It hasn't yet been decided. In my case, CNN deliberately, willfully lied about me. They said that I said that a president commit crimes and still not be impeached when in fact i said exactly the opposite of president if he does commit treason bribery or other high crimes and misdemeanors not only can but should be impeached they lied about it and uh the question in my case

is whether a judge, a judge, not a jury, can determine that although they lied, their lie was not with malice. And my argument is that should be an issue for the jury. not an issue for the judge, that here there's a conflict between perhaps the First Amendment and the Seventh Amendment. The Seventh Amendment talks about issues like that being tried in front of a jury and not being tried in front of a judge.

That case is now before the 11th Circuit. It hasn't been decided. We'll see what happens there. If we lose the 11th Circuit, we will take the case of the Supreme Court, and that may produce a restriction or a change in current. approaches toward New York Times versus Sullivan. I was one of the clerks on New York Times versus Sullivan and New York Times versus Sullivan itself does not say.

that judges can make that decision it implies it's juries that make that decision but lower courts and other courts have since said a judge can make that decision so That's also now pending in the courts. I think we're going to see a lot of action on what the exact meaning of freedom of speech is over the next 10 years or so. Okay, my prediction either will come true or it won't, and you'll be able to hold me responsible.

If it doesn't, let's turn to some questions. First question. Iran has enough oil to not even need nuclear power. Does the Ayatollah look like a tree hugger? No. The Ayatollah is not an armed analyst and Iran has no interest. protecting the environment by using nuclear energy instead of atomic energy, instead of oil and gas and other kinds of things. They'd be very happy burning wood. probably very happy burning people, which they also do from time to time. But don't believe for one second.

that Iran is not determined to obtain a nuclear arsenal. They are, and they will, unless they're stopped, either by diplomatic means or by military means. That's simply the reality. And I think anybody who blinks that reality. is lying to themselves for whatever purposes they have, you know, maybe good purposes. Maybe they'll say, look, it's better for Iran to have a bomb than for us to bomb them. No, I don't think that's right. But some people might take that view.

Here's a good one. I get a lot of these. Why don't you just call President Trump and have a conversation with him? I have a lot of respect for you. And then he goes on and on about what I should tell him. Not so easy to reach President Trump these days. It was not so hard before the election, but now he's a little bit busy. He has on his plate Ukraine, Gaza.

Iran, Yemen, his big, beautiful bill, tariffs. There's never been a president who has... worked so hard in the public eye i mean he's there all the time and i suspect very few who've worked so hard even in the private eye i know bill clinton worked extraordinarily hard i know because he would sometimes call me at all hours of the night and day and i know benjamin netanyahu works incredibly hard he's called me

very early in the morning, very late at night. But I'm sorry, I can't just pick up the phone. I have his number. But I can't just pick up the phone. I won't just pick up the phone and call him unless it's absolutely what I believe is essential. And he won't. He doesn't have the time to talk about many issues. He has to, in his cabinet, have to run not only the country, but right now, today, in many respects, the world. I'm not going to have a call with President Trump unless he calls me.

or unless there's an issue that I think warrants a call. But right now, I'm not going to do it for any reasons other than immediate national security. And here's an anti-Semitic letter, if I ever saw one. Fred doesn't mean it that way, but it's an idiotic letter. There is a difference between anti-Semitic and anti-Ashkenazi.

I don't know what the heck that means. I'm an Ashkenazi Jew. All that means is I'm not a Sephardic Jew. That is, my family grandparents came from Eastern Europe, from, in my case, Poland. They didn't come from... North Africa or Egypt or Palestine. I'm an Ashkenazi Jew. The vast majority of American Jews are Ashkenazi Jews, the majority of Israeli Jews.

are Sephardic Jews or non-Ashkenazi Jews. So there's no distinction. If you're against Ashkenazi Jews, you're against Jews. So there are so many efforts to try. for people to say, we're not against Jews, we're just against Zionists, we're against Ashkenazis, we're against this, we're against that. No, no. If you apply a double standard to Jews, to the Jewish state, to things Jewish... You are an anti-Semite. Look in the mirror. Face it. Say to yourself, I am an anti-Semite.

I belong to that long, long 3,000-year-old category of irrational people who hate Jews, you know, starting in the Bible and culminating, we thought culminating with Hitler, but now culminating with Hamas. Professor, what is the status of the bar complaint filed against you by the 65 Project? I have not heard much about them in the news recently. Are they still going after lawyers that represented Trump?

So the 65 Project was an organization of left-wing lawyers, some fairly prominent, who vowed to make life miserable. for any lawyer who defended Donald Trump or defended people close to Donald Trump. They said overtly they would try to get them disbarred. They would try to get them fired from their law firms. And as soon as that came out, I wrote an op-ed saying, hey, I'll defend anybody.

65 project goes after and I'll defend them pro bono. So what did they do? They went after me and they filed a bar complaint. against me in Massachusetts. That complaint has been dismissed, finally, and that complaint and the one in Arizona cost me together over $100,000. But I prevailed and was exonerated, as I would be. I didn't do anything wrong. All I did was defend the president of the United States. And in the Arizona case, I defended the person running for governor of Arizona.

operated completely within the law and within legal standards and i won in every case so uh but still people don't want to have to spend money defending themselves. And when people were asked to defend Donald Trump, some of them responded. It became a term. I don't want to be Dershowitz. I don't want to have happened to me what Project 65 did to Dershowitz.

Project 65 really did work and it did terrible, terrible things. And they also were the ones who started Lawfare. So, you know, when people complain about... the lawfare um that now maybe is being directed against law firms was directed by law firms against donald trump you know paul weiss settled kirkland ellis settled some of the other firms fought back a lot of people

for understandable reasons, are complaining and upset about that. But they ought to understand where it began. It began with the 65 project. Look it up. Look up what the 65 Project said it would do and what its goals were. They were McCarthyites personified. And I haven't heard from them much lately either, but they're still out there.

I hope they disappear into the gutters of history, into the trash bins of history. But it should be recalled that it was the left that started this lawfare. It was the left that started. to prosecute Donald Trump for things that no one had ever been prosecuted for and that no one should ever be prosecuted for in the New York case involving hush money payments. So I don't like lawfare. I don't like...

weaponizing the legal system against one's political enemies. But it started by the left. It was started by... democrats it was started by the 65 project it was started by the district attorney of new york it was started by the attorney general of new york it was started by the biden administration And so let's understand where the blame for this lies. Now, I made a speech at Mar-a-Lago and President Trump was there. And I said, don't take revenge and don't get even. Don't use against them.

what they used against you and i think he shook his head it seemed to me he did in approval and and i hope that that carries forth i don't want to see any Lawfare, any weaponization on either side and let the let the 65 project be buried with disgrace. And let us never again see anything like. The 65 Project. All right. Lots and lots of things happening in the world. Looking forward to seeing you next week.

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