WEBVTT 1 00:00:09.919 --> 00:00:12.519 Welcome to the Oath and the Office. I am John Fegle, 2 00:00:12.519 --> 00:00:14.240 saying it's so good to be back with you. Please 3 00:00:14.279 --> 00:00:17.199 welcome the star of our show, the pride of Brown University, 4 00:00:17.239 --> 00:00:20.039 the author of the best selling The Oath and the Office, 5 00:00:20.039 --> 00:00:22.039 and the Presidents and the people people of Earth. I 6 00:00:22.079 --> 00:00:23.719 give you Professor Corey Bretschneider. 7 00:00:24.320 --> 00:00:25.280 Thanks so much, John. 8 00:00:25.440 --> 00:00:28.920 We're going to reprise our discussion about birthright citizenship, not 9 00:00:29.000 --> 00:00:31.600 because I want to live through Donald Trump's attempt to 10 00:00:31.640 --> 00:00:34.719 revoke birthright citizenship as he did, but because for real, 11 00:00:34.799 --> 00:00:35.759 we've got a sequel. 12 00:00:35.880 --> 00:00:36.840 We'll talk about. 13 00:00:36.600 --> 00:00:39.840 That, and of course we're going to talk about license plates, 14 00:00:39.880 --> 00:00:42.439 one of my favorite topics, and we'll get to nerd 15 00:00:42.479 --> 00:00:43.759 out about license You know. 16 00:00:43.719 --> 00:00:46.240 What you left your license plates story is actually one 17 00:00:46.240 --> 00:00:49.079 of my favorite First Amendment stories of the entire year. 18 00:00:49.159 --> 00:00:50.520 I had to learn learn for retreat. 19 00:00:50.759 --> 00:00:53.439 I had to split so many First Amendment hairs trying 20 00:00:53.479 --> 00:00:55.240 to understand this story. So I can be on a 21 00:00:55.280 --> 00:00:57.759 podcast with you, professor if that is your name, and 22 00:00:57.840 --> 00:00:58.359 I have to. 23 00:00:58.320 --> 00:01:01.880 Say just to get people ready, like if anybody could 24 00:01:01.920 --> 00:01:06.920 make license plates exciting, intellectually humorous. 25 00:01:06.480 --> 00:01:08.359 It is my friend John Fugel saying. 26 00:01:08.719 --> 00:01:11.000 Well, but here's the thing, though. Today we're going to 27 00:01:11.079 --> 00:01:14.159 talk about five stories that seem pretty different, but I 28 00:01:14.200 --> 00:01:16.879 think they all raise a similar question. We got a 29 00:01:16.879 --> 00:01:21.079 president who's trying again to reject birthright citizenship after the 30 00:01:21.120 --> 00:01:24.879 Supreme Court told him stop doing that, this really fascinating 31 00:01:24.879 --> 00:01:30.120 First Amendment fight over profanity or messages on personalized license plates. 32 00:01:30.519 --> 00:01:32.799 And then it is the seven year anniversary this week 33 00:01:32.799 --> 00:01:35.079 of the death of Jeffrey Epstein. Happy anniversary to all 34 00:01:35.079 --> 00:01:38.159 who celebrate. Todd Blanche gets hired to be in charge 35 00:01:38.200 --> 00:01:41.319 of the official cover up a federal court telling the 36 00:01:41.400 --> 00:01:44.680 president he can't build his four hundred million dollar ballroom 37 00:01:44.680 --> 00:01:47.680 without congressional authorization. And the Senate Committee is trying to 38 00:01:47.719 --> 00:01:52.280 have criminal contemporroceeedings against Anthony Fauci, not Trump, who deliberately 39 00:01:52.519 --> 00:01:55.760 lied to people during a pandemic. And it seems like 40 00:01:55.920 --> 00:01:59.439 these five different stories are all about what happens when 41 00:01:59.519 --> 00:02:03.159 executive power collides with constitutional limits, which seems to be 42 00:02:03.239 --> 00:02:04.200 the theme of this podcast. 43 00:02:04.200 --> 00:02:07.079 Ser that's right, you know, John, I wish that it 44 00:02:07.159 --> 00:02:10.280 turned out that we did a podcast on too narrow topic, 45 00:02:10.360 --> 00:02:13.120 because every week we had to struggle to figure out, 46 00:02:13.240 --> 00:02:14.759 you know, what does this have to do with the 47 00:02:14.800 --> 00:02:18.639 limits and danger of executive power. But every week, you know, 48 00:02:18.719 --> 00:02:21.280 it's just a challenge to narrow down the stories and 49 00:02:21.319 --> 00:02:23.599 these are the ones that seem most pressing this week 50 00:02:23.919 --> 00:02:26.439 because it is an all out assault on our rights. 51 00:02:26.479 --> 00:02:27.800 And that's what we'll talk about. 52 00:02:27.960 --> 00:02:28.840 And I have to add. 53 00:02:28.639 --> 00:02:30.960 One thing, which is if you are new to the podcast, 54 00:02:31.000 --> 00:02:33.199 if you've been listening, and many people have listened from 55 00:02:33.240 --> 00:02:35.400 the beginning, welcome back. If you're new to it, I 56 00:02:35.520 --> 00:02:37.879 just ask you to subscribe as we launch into this. 57 00:02:38.680 --> 00:02:41.560 Please, so let's dive into it. Supreme Court ruled six 58 00:02:41.599 --> 00:02:47.039 to three way back Corey what June thirtieth years ago 59 00:02:47.680 --> 00:02:50.960 that Donald Trump's executive order trying to deny citizenship to 60 00:02:51.159 --> 00:02:55.000 children born in the United States to undocumented or temporary 61 00:02:55.039 --> 00:02:59.159 status parents could not stand. The Constitution is the Constitution 62 00:02:59.240 --> 00:03:01.400 and a president doesn't get to overrule that with an 63 00:03:01.400 --> 00:03:04.080 executive order. I mean, John Roberts's majority opinion was all 64 00:03:04.080 --> 00:03:06.560 about the fourteenth Amendment. We went deep on it here. 65 00:03:07.759 --> 00:03:11.919 Trump thinks that he can get around that and defy that, 66 00:03:11.960 --> 00:03:14.240 and he's now signed two new executive orders trying to 67 00:03:14.319 --> 00:03:17.840 narrow approach, including targeting what they tried in front of 68 00:03:17.879 --> 00:03:22.000 the Supreme Court, birth tourism, and certain categories involving foreign 69 00:03:22.120 --> 00:03:25.879 government personnel or alien enemies. There will be many legal 70 00:03:25.960 --> 00:03:28.759 challenges about this, but I mean, Corey, I had to 71 00:03:28.800 --> 00:03:31.000 learn so much about this in the Fourteenth Amendment to do. 72 00:03:30.919 --> 00:03:33.360 A show that you're a dune exact. I was done 73 00:03:33.400 --> 00:03:33.599 with this. 74 00:03:33.680 --> 00:03:35.520 I thought I can delete that from the mental hard 75 00:03:35.599 --> 00:03:39.759 drive now. But June thirtieth wasn't that long ago. What room, 76 00:03:39.919 --> 00:03:43.919 if any, does this guy actually have to redefine who 77 00:03:43.960 --> 00:03:46.840 receives birthright citizenship post Supreme Court ruling? 78 00:03:47.319 --> 00:03:49.479 He absolutely does not, But we're going to get into 79 00:03:49.800 --> 00:03:52.159 the big why. And of course he's doing this because 80 00:03:52.159 --> 00:03:54.639 he wants to continue to tee up the issue. And 81 00:03:54.719 --> 00:03:57.400 I think I'll also say, just in the beginning, even 82 00:03:57.400 --> 00:04:00.360 though the Constitution couldn't be clear that this exist executive 83 00:04:00.439 --> 00:04:04.919 order trying to redefine and revoke really birthright citizenship is unconstitutional. 84 00:04:05.159 --> 00:04:07.520 And even though the Supreme Court has said, hey, we 85 00:04:07.639 --> 00:04:10.439 read this thing too, the Constitution, we know what it says, 86 00:04:10.719 --> 00:04:14.479 and presidents can't just rewrite it with executive orders, he 87 00:04:14.560 --> 00:04:17.480 wants to openly defy the Constitution. When you and I 88 00:04:17.560 --> 00:04:21.120 met I wrote a piece called Trump versus the Constitution 89 00:04:21.319 --> 00:04:25.399 a guide, and that's the theme here again. I should say, 90 00:04:25.480 --> 00:04:27.800 just as a way of starting, there are two executive orders. 91 00:04:27.839 --> 00:04:32.399 One I think likely is constitutional. It isn't desirable, and 92 00:04:32.560 --> 00:04:34.680 there are problems with it, but I don't think courts 93 00:04:34.680 --> 00:04:35.000 are going. 94 00:04:35.000 --> 00:04:35.439 To stop it. 95 00:04:35.879 --> 00:04:37.680 And that has to do with who gets into the 96 00:04:37.720 --> 00:04:40.839 country in the first place and stopping so called birth 97 00:04:40.920 --> 00:04:44.399 taurus from entering the country. But the other one, which 98 00:04:44.439 --> 00:04:46.240 is the one that we're going to focus on, really 99 00:04:46.319 --> 00:04:49.079 is a defiance of the Supreme Court. The Supreme Court 100 00:04:49.199 --> 00:04:53.040 said in its case about birthright citizenship, and we had 101 00:04:53.040 --> 00:04:56.120 the honor of hosting Cecilia Wang, who argued that case 102 00:04:56.480 --> 00:05:00.120 so brilliantly before the Supreme Court for our spawn for 103 00:05:00.199 --> 00:05:03.839 the ACLU, and what the Court said was essentially what 104 00:05:03.920 --> 00:05:06.480 she said, which is the Fourteenth Amendment says if you 105 00:05:06.519 --> 00:05:09.600 were born in the United States, full stop, you are 106 00:05:09.639 --> 00:05:13.959 a citizen. And when it says subject to the jurisdiction. 107 00:05:14.079 --> 00:05:16.680 Although Trump is trying to expand that in all sorts 108 00:05:16.720 --> 00:05:20.720 of ways, all that meant was these narrow, narrow exceptions, 109 00:05:20.759 --> 00:05:24.800 so ambassador's children, for instance, are not birthright citizens because 110 00:05:24.800 --> 00:05:26.959 they are not they're immune, they're not subject to the 111 00:05:27.040 --> 00:05:30.120 jurisdiction of the United States. But now what Trump is 112 00:05:30.160 --> 00:05:33.360 trying to do is rewrite history, rewrite the Constitution, and 113 00:05:33.439 --> 00:05:37.360 try to expand these narrow exceptions to try to blow 114 00:05:37.399 --> 00:05:37.800 them up. 115 00:05:37.879 --> 00:05:39.360 So one that he's. 116 00:05:39.199 --> 00:05:43.120 Really working with is this idea, especially that in the event, 117 00:05:43.160 --> 00:05:45.759 a kind of hypothetical, if there was an invading force 118 00:05:45.800 --> 00:05:48.639 in the United States and the invading force had children, 119 00:05:49.160 --> 00:05:52.800 then those children, assuming that they're both or part of 120 00:05:52.879 --> 00:05:54.040 the invading force. 121 00:05:54.319 --> 00:05:57.959 Baby army in this wild example. 122 00:05:58.839 --> 00:06:01.319 So he's trying to say, oh, well, that means, you know, 123 00:06:01.399 --> 00:06:04.360 he thinks this is they've said this for a long time, 124 00:06:04.839 --> 00:06:08.279 that the so called invaders, and let's just say upfront, 125 00:06:08.319 --> 00:06:11.720 how openly racist this is of people coming into this 126 00:06:11.759 --> 00:06:13.399 country who lack allegiances. 127 00:06:13.480 --> 00:06:15.000 Is another way that he argues that. 128 00:06:16.120 --> 00:06:18.480 You mean, like the same undocumented workers that Donald Trump 129 00:06:18.519 --> 00:06:20.839 has hired himself in two different centuries, that kind of threat. 130 00:06:20.879 --> 00:06:21.680 I'm so sorry, thank you. 131 00:06:21.800 --> 00:06:24.160 Horrific, you know, but part of again, you know, the 132 00:06:24.160 --> 00:06:27.040 theme of our show in general, on this show is 133 00:06:27.160 --> 00:06:29.759 his assault not just on our rights, but you know, 134 00:06:29.839 --> 00:06:32.680 all at once on the text of the Constitution, on 135 00:06:33.240 --> 00:06:36.920 the idea behind birthrights, citizenship, and I'd urge listeners too, 136 00:06:36.959 --> 00:06:39.600 in addition to listening to the episode with Cecilia Wang, 137 00:06:39.680 --> 00:06:42.319 the discussion with David French where we talked about the 138 00:06:42.360 --> 00:06:44.959 American idea that you know, we are all equals at 139 00:06:44.959 --> 00:06:48.040 birth as opposed to the idea that we inherit our 140 00:06:48.120 --> 00:06:51.319 rights based on who where parents are. He's really got 141 00:06:51.319 --> 00:06:54.319 that second idea that he doesn't believe in equality in 142 00:06:54.360 --> 00:06:57.120 the fundamental way of the United States Constitution. 143 00:06:57.839 --> 00:07:01.199 So I mean, I follow you. They're arguing the White 144 00:07:01.240 --> 00:07:04.720 House that these new orders are in a material way 145 00:07:04.839 --> 00:07:07.600 much more narrow than Trump's original order. Now, I don't 146 00:07:07.639 --> 00:07:09.680 know how much of this is them playing greatest hits 147 00:07:09.720 --> 00:07:11.959 for the racist at the state fair. I don't know 148 00:07:11.959 --> 00:07:14.040 how much of this is them just trying to act 149 00:07:14.079 --> 00:07:18.160 like they're doing something performatively so the good old boys 150 00:07:18.199 --> 00:07:20.519 back home will feel like the gas doesn't cost four 151 00:07:20.560 --> 00:07:22.800 dollars a gallon, or if they're just doing this because 152 00:07:22.800 --> 00:07:24.199 they want to get it in front of the Supreme 153 00:07:24.240 --> 00:07:26.879 Court again and keep trying over and over until they 154 00:07:26.920 --> 00:07:30.600 eventually win. Right, But like, their focus has always been 155 00:07:30.639 --> 00:07:33.319 on what they call the original purpose of the fourteenth Amendment. 156 00:07:33.519 --> 00:07:37.560 It was protecting formally enslaved people and their descendants. And Trump, 157 00:07:37.560 --> 00:07:40.279 who knows nothing about this and loves the Confederacy, loves 158 00:07:40.319 --> 00:07:42.079 talking about that's what it was for. It was for 159 00:07:42.199 --> 00:07:44.120 the slaves. Will you live it as slaves? 160 00:07:45.439 --> 00:07:45.759 Corey? 161 00:07:46.319 --> 00:07:51.000 Why is it constitutional interpretation limited to just the circumstances 162 00:07:51.040 --> 00:07:53.879 that originally prompted an amendment hundreds of years ago? 163 00:07:54.680 --> 00:07:57.720 You know, there are examples in which the executive branch 164 00:07:57.839 --> 00:08:00.519 is told something is unconstitutional and then they come back 165 00:08:00.519 --> 00:08:03.680 and in good faith rewrite it and give a more 166 00:08:03.759 --> 00:08:07.079 narrow executive order to try to comply with the court's ruling. 167 00:08:07.160 --> 00:08:09.800 So having a sort of second executive order is in 168 00:08:09.839 --> 00:08:12.279 itself not necessarily a strange thing. 169 00:08:12.759 --> 00:08:14.399 But what is very strange. 170 00:08:14.000 --> 00:08:16.120 About this, and this picks up on a lot of 171 00:08:16.319 --> 00:08:18.759 you know, the points that you were making, is that 172 00:08:19.199 --> 00:08:22.920 the court's ruling was very broad. You know, it's said, essentially, 173 00:08:22.920 --> 00:08:25.120 if you're born in the United States, you are a citizen. 174 00:08:25.480 --> 00:08:28.360 And there are only a couple of exceptions I mentioned, 175 00:08:28.360 --> 00:08:32.840 for instance, the ambassador's example, and so you know, they 176 00:08:33.000 --> 00:08:35.919 precluded essentially what this Executive Order is trying to do. 177 00:08:36.000 --> 00:08:38.639 So why are they doing And it's partly politics, it 178 00:08:38.679 --> 00:08:41.480 is also, I think, yeah, trying to defy the Supreme 179 00:08:41.519 --> 00:08:43.720 Court to just say we don't agree, and to try 180 00:08:43.759 --> 00:08:46.799 to assert executive power over it. I'll just say how 181 00:08:46.840 --> 00:08:49.960 I think it'll play out. The ruling should have been 182 00:08:50.159 --> 00:08:50.759 nine zero. 183 00:08:50.879 --> 00:08:51.399 It was six'. 184 00:08:51.559 --> 00:08:55.720 Three and it was six' three on this broad point 185 00:08:55.840 --> 00:08:59.360 that the children of the undocumented. Are citizens there was 186 00:08:59.440 --> 00:09:02.799 one Vote By justice kavanaugh for the idea that it 187 00:09:02.840 --> 00:09:05.279 Wasn't the constitution that. Said that there was a law 188 00:09:05.320 --> 00:09:08.240 Passed by congress that. Said THAT but i still think 189 00:09:08.279 --> 00:09:10.759 it's six', THREE to say i don't think so on 190 00:09:10.799 --> 00:09:14.519 this that even though You've narrowed the executive order to so, 191 00:09:14.600 --> 00:09:17.559 called birth tourism that's not one of the exceptions that. 192 00:09:17.600 --> 00:09:20.840 We're talking about and the main point is you're Born In, 193 00:09:20.840 --> 00:09:24.279 the united states. You're a citizen that's the idea of equality. 194 00:09:24.320 --> 00:09:25.360 Before, the law. 195 00:09:25.759 --> 00:09:29.120 Yeah but isn't the birth tourism just what they have 196 00:09:29.200 --> 00:09:33.120 to say to make it appear not quite? SO nakedly, racist, I, Mean, 197 00:09:33.200 --> 00:09:37.960 honestly corey like couldn't the government regulate fraudulent visa applications 198 00:09:38.440 --> 00:09:41.720 without having TO Change? The US constitution am i? Asking too? 199 00:09:41.759 --> 00:09:44.320 MUCH that's, right i mean there is nothing in the 200 00:09:44.360 --> 00:09:47.440 idea that if, you committed, fraud for instance that, you 201 00:09:47.440 --> 00:09:48.159 you know you. 202 00:09:48.559 --> 00:09:49.600 Someone, for fraud. 203 00:09:49.559 --> 00:09:51.799 Yeah you know that you might be subject. To CRIMINAL 204 00:09:51.840 --> 00:09:54.759 action but i think the idea you know that you 205 00:09:54.759 --> 00:09:57.799 would revoke because you came. Into the country this is 206 00:09:57.840 --> 00:10:00.440 what they're, trying to say that, you somehow, inherently you 207 00:10:00.480 --> 00:10:02.960 know because you did want your child to be Born In. 208 00:10:02.960 --> 00:10:05.399 The united states that is, not you know that might be, 209 00:10:05.440 --> 00:10:08.200 a policy idea but it's Not what. The constitution says 210 00:10:08.240 --> 00:10:10.120 it says if you're Born In, the united. States full 211 00:10:10.159 --> 00:10:14.000 stop it doesn't make. Exceptions for travelers you are a 212 00:10:14.039 --> 00:10:16.679 Citizen Of. The united states, and you know if you, 213 00:10:16.679 --> 00:10:19.279 don't like it changed the constitution or at least change the. 214 00:10:19.399 --> 00:10:22.159 Law to clarify but you can't just do this. 215 00:10:22.200 --> 00:10:23.440 Through, executive order. 216 00:10:23.519 --> 00:10:25.440 Well let's move on to something that affects all, of 217 00:10:25.440 --> 00:10:28.480 our lives and. That's license, plates you know when you 218 00:10:28.559 --> 00:10:30.879 first pitched, ME this story, i Was, like oh GOD what. 219 00:10:30.879 --> 00:10:33.039 What i mean i'm happy to Not Talk about todd blanch. 220 00:10:33.080 --> 00:10:35.240 For five, minutes god knows But this is this is 221 00:10:35.240 --> 00:10:37.360 one of those areas of CONSTITUTIONAL law that i think 222 00:10:37.399 --> 00:10:40.360 sounds kind of goofy until you realize, that this this 223 00:10:40.360 --> 00:10:42.519 this actually asks a. REALLY enormous question i. Love this 224 00:10:42.559 --> 00:10:46.639 story when the government gives you a little rectangle of 225 00:10:46.720 --> 00:10:49.480 metal and says you have to put this. On your 226 00:10:49.519 --> 00:10:53.759 car whose? Speech is that so The story Is Virginia 227 00:10:53.759 --> 00:10:59.759 evoked CURTIS whiteley's PERSONALIZED ftp and atf plate after an, Anonymous, 228 00:10:59.759 --> 00:11:02.320 complet o corey Correct me, If i'm Wrong. Professor of 229 00:11:02.360 --> 00:11:05.799 europe on, THIS kid's LINGO i BELIEVE ftp and atf 230 00:11:05.879 --> 00:11:08.360 stands For fuck the Police and The, Bureau of Alcohol. 231 00:11:08.399 --> 00:11:09.679 Tobacco and firearms, You, got. 232 00:11:09.600 --> 00:11:10.120 It, okay. 233 00:11:10.159 --> 00:11:14.679 Thank you sir, so You Know the fourth circuit ruled 234 00:11:14.679 --> 00:11:18.440 that personalized license plate text is private speech Protected By, 235 00:11:18.440 --> 00:11:21.240 the first amendment which is different from the government speech 236 00:11:21.399 --> 00:11:25.320 question that is presented by. Specialty plate designs THIS is 237 00:11:25.320 --> 00:11:26.919 something i had never actually, thought About it but. 238 00:11:26.919 --> 00:11:27.559 I've really gotten. 239 00:11:27.559 --> 00:11:29.879 Into this right but, YOU'RE right now i see why you. 240 00:11:29.960 --> 00:11:33.120 Like this topic. YOU'RE infecting, me i mean it's all 241 00:11:33.159 --> 00:11:38.600 about viewpoint discrimination and the state's ability. To regulate expression 242 00:11:38.879 --> 00:11:42.200 if not words that, some not all might. Be offended 243 00:11:42.200 --> 00:11:44.879 by and you've written about license, plate speech before you've 244 00:11:44.879 --> 00:11:48.240 described it as a form. OF mixed speech i love 245 00:11:48.279 --> 00:11:50.279 this issue because it's so serious and stupid at. The 246 00:11:50.279 --> 00:11:53.519 same time Why Should the first amendment care what somebody 247 00:11:53.519 --> 00:11:53.840 puts on? 248 00:11:53.879 --> 00:11:56.879 A license plate i have written about license Plates In The, 249 00:11:56.879 --> 00:11:59.440 new york Times and before, TRUMP was elected i was 250 00:11:59.519 --> 00:12:03.080 very folk on this really kind, of cutting edge Interesting 251 00:12:03.639 --> 00:12:06.519 Issue and. First amendment law i've moved on, to other 252 00:12:06.559 --> 00:12:09.759 things mostly because we are under threat of having all, 253 00:12:09.799 --> 00:12:12.279 of our Rights Including the first amendment revoked. 254 00:12:12.279 --> 00:12:13.480 By a president oh. 255 00:12:13.399 --> 00:12:15.440 The goofy POP culture stuff i used to cover on 256 00:12:15.519 --> 00:12:17.879 my show In The. BEFORE nimes, professor, I know yes, 257 00:12:18.360 --> 00:12:18.720 i will. 258 00:12:18.720 --> 00:12:21.600 Say you know but one of the things, and this, 259 00:12:21.679 --> 00:12:23.559 is you know just to kind of plead a listeners 260 00:12:23.559 --> 00:12:25.840 to get into, this with us to nerd out. 261 00:12:25.840 --> 00:12:28.039 On License Plates in first. 262 00:12:27.759 --> 00:12:32.200 Amendment law, and constitutional law sometimes the issues, are extremely, 263 00:12:32.279 --> 00:12:34.759 pressing you know can a president commit a crime and get? 264 00:12:34.799 --> 00:12:37.639 Away with it. The immunity question sometimes they're. 265 00:12:37.480 --> 00:12:41.440 More abstract and not obviously salient, in the instance but 266 00:12:41.480 --> 00:12:44.240 it helps us to think about the more general question. 267 00:12:44.399 --> 00:12:44.799 Of free. 268 00:12:44.799 --> 00:12:47.360 Speech, in, this so yes it's, about license plates but 269 00:12:47.399 --> 00:12:49.879 it's really a way of thinking. About free speech so 270 00:12:50.120 --> 00:12:52.559 just to, get into it the court in a case 271 00:12:52.720 --> 00:12:55.639 and this is, really you know my concern is about 272 00:12:55.720 --> 00:12:59.399 not just the idea of, protecting free speech but how 273 00:12:59.480 --> 00:13:03.240 is it that government can, combat white supremacy how can? 274 00:13:03.279 --> 00:13:06.080 It combat racism and it has to have the power. 275 00:13:06.080 --> 00:13:09.320 To do both that's, my central idea both of, protecting 276 00:13:09.519 --> 00:13:12.559 all viewpoints not being criminalized for, what you say but 277 00:13:12.639 --> 00:13:15.399 also having a role for the government in trying to 278 00:13:15.840 --> 00:13:18.720 well stop the history of white supremacy that we have. 279 00:13:18.840 --> 00:13:21.399 In this country and, THE best way i think one 280 00:13:21.440 --> 00:13:23.559 way for it to do that is when it sends. Its, 281 00:13:23.600 --> 00:13:26.639 own messages okay let's get. Into License plates So texan 282 00:13:27.080 --> 00:13:31.159 plates Texas and The walker Case Walkover versus texas division 283 00:13:31.759 --> 00:13:33.840 looked at the following facts and then we'll talk about. 284 00:13:33.879 --> 00:13:37.559 The new case texas has a Group called the Sons 285 00:13:37.600 --> 00:13:42.320 of the confederacy who wanted to have a Choice that all. 286 00:13:42.240 --> 00:13:43.639 Texans were given for. 287 00:13:43.720 --> 00:13:46.440 Their license plate this is known as a specialty plate 288 00:13:46.480 --> 00:13:50.120 when you're given a choice That had the confederate, battleflag 289 00:13:50.159 --> 00:13:52.919 on it and when they were denied That right, because 290 00:13:52.960 --> 00:13:54.480 TEXAS said and i think this. 291 00:13:54.559 --> 00:13:55.399 Is, common sense. 292 00:13:55.519 --> 00:13:58.440 Hey that's racist we don't want that on. Our license, plates, 293 00:13:58.480 --> 00:14:02.360 they said well it's our. Free speech right so now, 294 00:14:02.399 --> 00:14:05.559 here's the, question you know does The government does, texas 295 00:14:05.600 --> 00:14:08.000 in particular have the right to say we don't want 296 00:14:08.159 --> 00:14:13.399 racist materials on our? Own license plates and, the, COURT rightly, 297 00:14:13.440 --> 00:14:16.399 actually I think said. Texas wins this this isn't a. 298 00:14:16.440 --> 00:14:19.399 Free speech issue but now what's happened is we're in. 299 00:14:19.440 --> 00:14:21.559 A different question you have a right to, a bumper, 300 00:14:21.600 --> 00:14:25.360 Sticker for instance what about, an individual plate an individual 301 00:14:25.399 --> 00:14:28.440 SPECIALTY plate that, i choose myself not for other people 302 00:14:28.600 --> 00:14:31.120 that as part. Of A group do i have the right? 303 00:14:31.200 --> 00:14:33.519 To do that and THAT'S what this ftp? 304 00:14:33.720 --> 00:14:34.039 Plate? 305 00:14:34.159 --> 00:14:36.879 Is about right and now that's our NEW question that 306 00:14:37.279 --> 00:14:40.159 i think is a genuinely hard. And interesting question i've been, 307 00:14:40.200 --> 00:14:42.759 thinking About it and i'll give. You Some, thoughts but, john, 308 00:14:42.879 --> 00:14:43.440 go ahead. 309 00:14:43.320 --> 00:14:44.559 Yeah let me let me pull it back, just a 310 00:14:44.559 --> 00:14:47.240 second because it is so The sense of Confederate, veterans 311 00:14:47.240 --> 00:14:50.559 in texas this this, whole thing right they treated specialty 312 00:14:50.639 --> 00:14:57.080 plate designs. As, Government speech right why wouldn't that automatically 313 00:14:57.159 --> 00:15:01.559 mean all speech APPEARING on a stack eight issued plate is. 314 00:15:01.600 --> 00:15:03.919 Also government speech well that's. 315 00:15:03.799 --> 00:15:06.159 The, you know ultimately that is The conclusion that, i'm 316 00:15:06.240 --> 00:15:08.759 drawn to that they should just say it's just too 317 00:15:08.879 --> 00:15:12.039 dangerous when it's an official plate, to have, messages for instance. 318 00:15:12.039 --> 00:15:14.519 That are racist and although you do have a right 319 00:15:14.639 --> 00:15:17.799 to say racist things in your house and display them on, 320 00:15:17.840 --> 00:15:21.440 your you know lawn even and even on, a bumper 321 00:15:21.480 --> 00:15:26.960 sticker arguably that's, personal free speech the state is. A, 322 00:15:27.000 --> 00:15:30.960 different thing, SO you know i think that the, Conservative 323 00:15:31.000 --> 00:15:32.799 liberal breakdown i'm not sure how it's going. 324 00:15:32.840 --> 00:15:35.159 To play out this isn't a case in which conservatives 325 00:15:35.159 --> 00:15:36.919 and liberals are going to break down on. 326 00:15:37.360 --> 00:15:40.720 The NORMAL lines but i think a sensible solution to 327 00:15:40.799 --> 00:15:43.200 all this is to say it's just too dangerous to 328 00:15:43.240 --> 00:15:46.600 have Things like a. Confederate battle flag and if a 329 00:15:46.639 --> 00:15:49.879 state doesn't WANT to have ftp on your LICENSE plate 330 00:15:50.279 --> 00:15:52.519 that i think you still preserve enough free speech if 331 00:15:52.519 --> 00:15:54.240 you could put it on your bumper sticker and you 332 00:15:54.279 --> 00:15:56.279 don't have it on. A license plate so that's going 333 00:15:56.360 --> 00:15:58.440 to Come Before. THE supreme court i think that's. What 334 00:15:58.519 --> 00:16:00.759 they'll say and this is one of THOSE instances, Where, 335 00:16:00.759 --> 00:16:02.559 i think okay they're following. 336 00:16:02.559 --> 00:16:03.759 A sensible, path. 337 00:16:03.759 --> 00:16:07.120 I mean it's something constitutionally different about this idea of 338 00:16:07.159 --> 00:16:10.879 the state giving citizens this menu of twenty six letters 339 00:16:11.039 --> 00:16:15.799 and characters, you can use and then approving an individual's message. 340 00:16:15.879 --> 00:16:18.960 OR saying, no I mean IF I Put i love 341 00:16:19.000 --> 00:16:22.960 america on, my license plate everyone understands that. It's. Me 342 00:16:23.039 --> 00:16:27.039 SPEAKING right IF i put f the police on, my 343 00:16:27.120 --> 00:16:30.600 license plate people should still letter state it's me speaking 344 00:16:30.639 --> 00:16:33.080 And NOT the, virginia. DMV speaking, right i mean if 345 00:16:33.120 --> 00:16:35.480 the state is just saying that they have an interest 346 00:16:35.480 --> 00:16:37.440 in preventing, profanity and incitement that. 347 00:16:37.440 --> 00:16:37.679 Would. 348 00:16:37.679 --> 00:16:38.559 Be, ENOUGH right. 349 00:16:39.159 --> 00:16:41.440 Well i think that's an interesting way to. THINK about 350 00:16:41.480 --> 00:16:43.440 it i don't think that the profanity thing is going 351 00:16:43.480 --> 00:16:45.679 to get us. Out of it because there's a Famous 352 00:16:45.679 --> 00:16:49.000 case Called, cohen versus california one of the most famous, 353 00:16:49.039 --> 00:16:52.720 and constitutional law and it's Actually During. The vietnam, War, 354 00:16:53.080 --> 00:16:57.759 this individual cohen has a, JACKET that says i think 355 00:16:57.799 --> 00:16:59.879 it iss. F the war IT uses the f word 356 00:17:00.039 --> 00:17:03.399 and has an. Anti war message and the court actually 357 00:17:03.440 --> 00:17:08.160 has one of my favorite lines. In, constitutional history actually 358 00:17:08.599 --> 00:17:10.960 and we'll see if. You Appreciate this to john as, 359 00:17:11.000 --> 00:17:14.240 a Professional comedian the court in one of its few, 360 00:17:14.319 --> 00:17:16.640 Moments being funny but it's trying to ask the question 361 00:17:17.119 --> 00:17:19.319 of whether or, not that speech which, is you know, 362 00:17:19.400 --> 00:17:22.039 on his jacket not on, a license plate whether or 363 00:17:22.079 --> 00:17:24.279 not it is. Protected or not and they, consider, the 364 00:17:24.279 --> 00:17:27.000 possibility well we could just, say it's obscene and, then 365 00:17:27.039 --> 00:17:29.440 they say this. Is the line it is very hard 366 00:17:29.440 --> 00:17:35.359 to imagine anyone Becoming aroused by, cohen's, Tattered jacket right 367 00:17:35.400 --> 00:17:37.160 and part of PART of why i like it is 368 00:17:37.200 --> 00:17:40.680 the idea that somebody might, be aroused, by you know a, 369 00:17:40.799 --> 00:17:43.799 non tattered jacket or that that would. Be, the difference 370 00:17:43.880 --> 00:17:46.880 no it's because it's not, about. You know obscenity it's 371 00:17:46.960 --> 00:17:49.920 it's not about. Sexuality at all. It's about advice and, 372 00:17:50.000 --> 00:17:53.160 so here HERE here what i, here's my, point you 373 00:17:53.200 --> 00:17:56.759 know aside from my straying into Nerding out On, cohen 374 00:17:56.839 --> 00:18:00.400 versus california it is about political messages and whether or 375 00:18:00.440 --> 00:18:02.960 not they can be limited when the government wants. To 376 00:18:03.000 --> 00:18:05.359 do it and the government can't do that again when it's, 377 00:18:05.359 --> 00:18:06.079 A bumper. 378 00:18:05.799 --> 00:18:07.400 Sticker but what about when it's? 379 00:18:07.400 --> 00:18:09.720 A LICENSE plate, and, i think yeah, it is sensible 380 00:18:10.160 --> 00:18:13.599 especially when you consider this possibility. Of racist, MESSAGES you 381 00:18:13.640 --> 00:18:16.359 Know i, hate jewish, people for instance on. A license 382 00:18:16.400 --> 00:18:18.160 plate i wouldn't want. To see that and If There's 383 00:18:18.160 --> 00:18:21.000 a first amendment right, to do that you know we, 384 00:18:21.119 --> 00:18:24.079 might see it especially given where things are headed in 385 00:18:24.119 --> 00:18:28.319 this culture and other instances. Of RACIST speech so i 386 00:18:28.319 --> 00:18:30.960 think giving the government the, ability, to say okay if it's, 387 00:18:31.000 --> 00:18:33.960 a license plate it's not a zone of, total free 388 00:18:33.960 --> 00:18:35.799 speech that makes, sense to me even if it is 389 00:18:35.839 --> 00:18:37.240 picking the un choosing in the way. 390 00:18:37.440 --> 00:18:39.640 That you're suggesting but with the issue still. 391 00:18:39.640 --> 00:18:43.319 BEING viewpoint, discrimination i mean could, a state, conceivably let's 392 00:18:43.319 --> 00:18:48.039 say ban all profanity on personalized plates and make that 393 00:18:48.079 --> 00:18:51.559 a viewpoint neutral rule to get? AROUND that thing I guess. 394 00:18:51.559 --> 00:18:52.599 WHAT i'm, saying i mean just to. 395 00:18:52.640 --> 00:18:56.559 Introduce this idea, sometimes you, know for instance can you 396 00:18:56.599 --> 00:18:59.720 put somebody in prison the court applies a rule that it, 397 00:18:59.799 --> 00:19:02.880 calls viewpoint neutrality meaning it can't pick and choose based. 398 00:19:02.920 --> 00:19:06.440 On people's opinions it can't choose Based on viewpoint so 399 00:19:06.519 --> 00:19:10.079 canad engage. In viewpoint discrimination that's the technical way. To 400 00:19:10.079 --> 00:19:12.200 put it when it Comes to, and i'm, saying you 401 00:19:12.240 --> 00:19:14.680