Speaker 1: Well whiskey, come and take my pain the moneys.
Speaker 2: All ray whiskey. Why think alone when you can drink
Speaker 2: it all in with Ricochet's Three Whiskey Happy Hour, Join
Speaker 2: your bartenders, Steve Hayward, John You, and the international Woman
Speaker 2: of Mystery, Lucretia.
Speaker 3: Where they lapps it up it David, ain't you easy
Speaker 3: on the shoulder, so tap you gotta give me?
Speaker 1: Well? Welcome everyone to a very very special edition of
Speaker 1: the Three Whiskey Happy Hour in our I believe this
Speaker 1: is our third reiteration of the new and improved three
Speaker 1: Whiskey Happy Hour, the New Coke, and we are very
Speaker 1: excited to be here because all of us are just
Speaker 1: thrilled to death about all the winning, winning, winning, And
Speaker 1: I'm not yet sick of winning, but I'm hardly keeping
Speaker 1: up with all the winning every time I turn around.
Speaker 1: I just got an email from so When saying, did
Speaker 1: I see that Trump is has tasked a US transportation
Speaker 1: command with providing C one thirties and SEE one thirty
Speaker 1: seven's to be used to deport violent illegal criminals because
Speaker 1: he could do that, right, John, I'm going to ask
Speaker 1: you this because he declared the border situation and emergency,
Speaker 1: and therefore he can he can use his powers as
Speaker 1: commander in chief to direct the military to do things
Speaker 1: for him. Is that correct?
Speaker 3: So I actually was worried about this because you know,
Speaker 3: under the posse comittatis, actor not allowed to use the
Speaker 3: military to enforce a law. So I think, like the
Speaker 3: military can go to the border and stop anyone from
Speaker 3: crossing it, I don't know whether they can enforce immigration law.
Speaker 3: So it's actually a really tough question. So what the
Speaker 3: Trump people did, and this is where it's it's unbroken ground.
Speaker 3: I mean, this has never really come up before. Is Yeah,
Speaker 3: he declared not just an emergency at the southern border,
Speaker 3: remember he did that last time. What he actually declared
Speaker 3: was an evasion was occurring across the southern border and
Speaker 3: triggered under his commander in chief power the use of
Speaker 3: the military. So actually, if you read the order care
Speaker 3: you know, the journalists, I don't think they've caught on
Speaker 3: to what's how serious this is. Is Trump has he
Speaker 3: has not declared war, but he has triggered self defense
Speaker 3: on the southern border, and he's actually said that the
Speaker 3: immigration waves are laws are kind of suspended across the
Speaker 3: southern border, and so if they're suspended, that's why the
Speaker 3: military can then, right, they're acting as the military take
Speaker 3: people and fly them back to where they came from.
Speaker 3: Before you have such a declaration, you can't actually do
Speaker 3: that under the Posse Comittatis Act. So this is a
Speaker 3: really big deal, right, because this is I think the
Speaker 3: first time this has happened. And I don't think anyone
Speaker 3: any I haven't heard anybody watching this, uh understand the
Speaker 3: significance of it.
Speaker 2: Well but John, but John, Uh, I mean, first of all,
Speaker 2: what it means is Trump or someone around him is
Speaker 2: clearly Listen to those episodes of the Three Whiskey Happy
Speaker 2: Hour where we were testing in you right, I thought
Speaker 2: you were. I got to beat you to it, right,
Speaker 2: so you got skunked on this point.
Speaker 3: But I lost. I mean, I'm happy. I don't I
Speaker 3: don't think there's an invasion going across the southern border.
Speaker 3: But the past I know has declared it. You shouldn't
Speaker 3: double down right now.
Speaker 2: But bo wait, but John, come up.
Speaker 3: It'll eventually be tested in court. I'm not sure that's
Speaker 3: but but this is really uh, you know, this is
Speaker 3: of all the things I read in the orders, I
Speaker 3: think I read all of them. This is the most daring, bold,
Speaker 3: significant one.
Speaker 1: Okay, So the interesting thing what you said is you
Speaker 1: don't think people are paying attention. What they're doing is
Speaker 1: silly things like putting pictures out of of poor women
Speaker 1: crying because they you know, shut down the CPB app
Speaker 1: and now they shut it down and all the appointments
Speaker 1: are canceled, and they tried to flood the zone with
Speaker 1: pictures of these poor people, except people kept pointing out
Speaker 1: it's Martin Luther King day. They didn't have appointments today anyway,
Speaker 1: what are you talking about, you know, and things like that.
Speaker 1: So my point there is that all of their attempts
Speaker 1: to make all of us mega people feel guilty about
Speaker 1: deporting illegal immigrants and all the other things that Trump
Speaker 1: is actually getting away with doing right now, it's not
Speaker 1: working because you just pointed out they're really not focusing
Speaker 1: on what's important. They're just going with the old playbook.
Speaker 2: Well, I think, well two thoughts quickly. One, John, I
Speaker 2: think you ought to be delighted with this, whether you
Speaker 2: agree about the conditions on the board or not. It's,
Speaker 2: you know, the exertion of executive power that you generally
Speaker 2: and specifically defend over and over again. Right, okay, But
Speaker 2: the second point is to what you both have just said,
Speaker 2: is I think what's going on here is Trump is
Speaker 2: flooding the zone. Maybe you just said that, Lucretia, and
Speaker 2: by the way, people have been observing and saying this
Speaker 2: is what's going on. But the left and the Democrats,
Speaker 2: but I repeat myself, are simply too undisciplined to figure
Speaker 2: out a strategy to cope with it, how to put
Speaker 2: a how to do a hierarchy of priorities. That's because
Speaker 2: the progressive is everything's a priority. So you know, if
Speaker 2: Trump just did two of these' that's what the press
Speaker 2: would be all over instead. I mean, I don't know
Speaker 2: if I doubt Elon must thought of this ahead of time,
Speaker 2: but if he had, what a genius move for him
Speaker 2: to give a what what the left run off and
Speaker 2: say is a Nazi salute, and that's what the media
Speaker 2: is focusing on on and maybe and meanwhile, Trump he
Speaker 2: used all these executive orders.
Speaker 3: This shows how clever you and Lucretia really are, because
Speaker 3: of course, you like guard debate on immigration had us
Speaker 3: focus a lot of time on birthright citizenship, which doesn't
Speaker 3: matter that much in terms of the numbers. But the
Speaker 3: left is completely focused on birthright citizenship. They're talking about
Speaker 3: they've already filed a lawsuit against it. There's going to
Speaker 3: for me too. Yeah, there's going to be hearing, I
Speaker 3: think this week in Washington States. It's been scheduled for.
Speaker 3: But that's not the most important issue. It's this triggering
Speaker 3: of the evasion clause and the deployment of the military
Speaker 3: to the border that's as remarkably, way more orders of
Speaker 3: importance than birthright citizenship. You're right, because the progressors are
Speaker 3: not prioritizing things properly.
Speaker 2: Well, it's because they can't. But yeah, I mean I think, yeah.
Speaker 1: I mean, they really are just becoming obsessed by the
Speaker 1: dumbest things. I mean that stupid bishop thing. Oh I can't. Yeah,
Speaker 1: I don't think it's fair to call her a woman
Speaker 1: because anyway, miss at the National oh the Bishop, Well,
Speaker 1: I mean, so she was out there, she was on
Speaker 1: the view, she was on the CNN, she was even
Speaker 1: talking about as if anybody Trump insaulted her and moved on.
Speaker 1: But they're going to obsess about this stupid, dumb lesbian
Speaker 1: bishop for you know.
Speaker 2: Two quick observations about that, or maybe three one is
Speaker 2: I think that she's probably racked with liberal guilt and
Speaker 2: trying to make up for all those decades when people
Speaker 2: said the Episcopal Church was the Republican party at prayer.
Speaker 2: That used to be the cliche, right, that's long since
Speaker 2: God second God, well second, literally, I thought she made
Speaker 2: a huge blunder by saying, how did she put it?
Speaker 2: But she betrayed no, no, no, no. She betrayed the
Speaker 2: sort of paternalism and condescension of the cultural left by saying,
Speaker 2: you know, these are the people who clean our houses
Speaker 2: and stalk our shelves and prepare our food. She's saying,
Speaker 2: you're threatening our cheap servant class. I mean, I mean,
Speaker 2: if you think about that for a minute, what a
Speaker 2: way to describe this set of human beings. As you know,
Speaker 2: the left always says, what you're marginalizing people. What did
Speaker 2: she do with those particular characterizations of the people she
Speaker 2: thinks for being affected by all this? But just said
Speaker 2: last thing, you know, the numbers John, this is a
Speaker 2: general point, and then I'll stop the numbers here. In
Speaker 2: the first few days are what during Biden's administration, You're
Speaker 2: getting ten to twenty thousand people a day apprehended at
Speaker 2: the border who've never let go in most cases. I
Speaker 2: think it's been under a thousand the first forty eight
Speaker 2: hours of Trump, which shows, you know what, you can
Speaker 2: control the border, and you know, it turns out well.
Speaker 2: But in the view for the under Biden and you know,
Speaker 2: the conventional wisdom is, well, you know, what can you
Speaker 2: do to stop then we can't. You know, it's really
Speaker 2: not something we can do. It's a microcope. Actually it's
Speaker 2: a macrocosm of the super macrocosm, which is the incompetence
Speaker 2: of modern government. It's a big theme for me right
Speaker 2: now for the government's increasingly incompetent and about doing what
Speaker 2: they should basically do. Control crime, you know, fill the potholes,
Speaker 2: things of that kind. They're no good at that. But
Speaker 2: they're going to control the globes temperature and you know, okay,
Speaker 2: also stop there.
Speaker 1: Yeah, I know I don't necessarily disagree to you, but
Speaker 1: I have to say that I don't think in this
Speaker 1: particular case that's what's necessarily happening. I think that the
Speaker 1: Biden administration purposely decided they didn't want to control the border.
Speaker 1: So it makes it a little bit different. But the
Speaker 1: thing I talked with you guys before the election, actually
Speaker 1: about the concept we were talking about, you know, how
Speaker 1: you might actually deport all of these what twenty eight million,
Speaker 1: thirty million illegal immigrants now in the country, and how
Speaker 1: you know it'd be too expensive And that's all we've
Speaker 1: already seen that. All it takes is you're not welcome here.
Speaker 1: And not only do you not see people coming here,
Speaker 1: you see people leaving. You see people shutting down their
Speaker 1: operations that they ran with, you know, impunity before you
Speaker 1: you And that was my argument that welcome sign.
Speaker 2: Mitt Romney was right self I could resist.
Speaker 1: No, I mean, but Mitt Romney is an idiot. It
Speaker 1: doesn't count when he says something halfway smart. No, I mean,
Speaker 1: he talked about self deportation, but you called it the
Speaker 1: infelicitous term he used. I don't find anything infelicitous about it. Yeah,
Speaker 1: you know, you're not welcome here, you can't work here.
Speaker 1: If somebody hires you, they're going to be punished. And
Speaker 1: we fix our broken immigration system.
Speaker 2: By one dominating thought, which we don't need all the
Speaker 2: pieces for. Is this again, this is a political scientist
Speaker 2: and historian. The conventional wisdom in second terms for presidents
Speaker 2: is when they have trouble and go badly, they run
Speaker 2: out of gas and the people are tired and leave.
Speaker 2: I think again, the oddity of Trump is that he
Speaker 2: just as he inverts everything else, I think he has
Speaker 2: just inverted the typical cycle of presidents. He here's my point.
Speaker 2: He already had his second term in the first term
Speaker 2: with you know, you know, unstable staff changes, not sure
Speaker 2: what they were doing. It went very well for a while,
Speaker 2: then COVID came along and wrecked everything and all the
Speaker 2: rest of that. This feels like first term, and the
Speaker 2: people coming in are much more. It reminds me of
Speaker 2: Reagan's first term, when you know, many of the people,
Speaker 2: not all of them, were really sympatical with what Reagan
Speaker 2: wanted to do. The appointments at this time around, well,
Speaker 2: just give you one example. You know, one of Trump's
Speaker 2: many mistakes going in in twenty seventeen was he listened
Speaker 2: to the Republican establishment. It was Condoleeza Rice who talked
Speaker 2: him into appointing what's his name, Derex Tillerson, second terrorist.
Speaker 2: Right nowadays, he won't call condolly'z A Rice to wish
Speaker 2: her a happy birthday, or maybe you know, hey, if
Speaker 2: I start a football league, would you run it? Maybe
Speaker 2: just for fun, but no, he knows better now. He's
Speaker 2: not going to appoint a big name just because condolliez
Speaker 2: a rise to somebody else says it's a good idea,
Speaker 2: you know, Madis. I mean I always thought well of Madis.
Speaker 2: I still do in some ways. But that was a
Speaker 2: mistake and he's not doing that this time, right and
Speaker 2: so and then the speed and the clearly as you
Speaker 2: mentioned to us, John and the pregame show, they thought
Speaker 2: these executive orders out ahead of time and really worked
Speaker 2: through the language carefully, unlike some of the ones in
Speaker 2: January twenty seventeen. They were a little slap dash and
Speaker 2: lost in court quickly. So this just seems so much
Speaker 2: more deliberate. And I'm sitting here thinking he's going to
Speaker 2: have a great second term.
Speaker 3: I think we're overdoing it a little. Maybeah, yeah, I
Speaker 3: think a lot of a lot of what this is
Speaker 3: a funny thing. I think a lot of the things
Speaker 3: that are making you happy is just that he's reversed
Speaker 3: the Biden years. Yeah, Like just a lot of the
Speaker 3: orders are just if you look, a lot of the orders,
Speaker 3: I mean a lot of you know, many of them
Speaker 3: are affirmative new orders, but maybe the most important order
Speaker 3: was the first order, which reversed something like twenty five
Speaker 3: different Biden executive orders and kind of returned the world
Speaker 3: to where it was in twenty twenty.
Speaker 2: Well, actually, John, I I mean, let's pick just one.
Speaker 2: I didn't want to get off. And you know, a
Speaker 2: lot of these could be talked on a great length,
Speaker 2: but his reversal of the famous affirmative action Executive Order
Speaker 2: eleven two forty six made in nineteen sixty six. Right,
Speaker 2: you know, the reagular administration and the second term had
Speaker 2: a huge battle ed. Mees and Bill Bennett and several
Speaker 2: others wanted to rescind it. The rhinos in the cabinet,
Speaker 2: Elizabeth Dole, of course, Bill Brock and Labor, and I
Speaker 2: think the Chief of Staff Don Reagan was a squish
Speaker 2: on this. They also, oh, we can't do that. And
Speaker 2: one of the many things the opponents did was get
Speaker 2: corporate CEOs to call up Reagan saying, oh, please don't
Speaker 2: do this, we really need to have affirmative action. So
Speaker 2: they up not doing it. So they chickened out in
Speaker 2: the end, right, and now Trump just said I don't
Speaker 2: care what you know. I'm doing this thing and it's popular.
Speaker 1: I mean, yes, no, no, no, John, Let me go back
Speaker 1: to what John said, Steve hold On. What he said
Speaker 1: was that this is merely undoing what Biden had done,
Speaker 1: as if I know what you're saying by that. But
Speaker 1: my point is this that the march toward leftist progressive
Speaker 1: policies and regulations and all of those things has been
Speaker 1: almost inhibited now since since Roosevelt practically, and that's too
Speaker 1: strong to say it like that, but this is I mean,
Speaker 1: did anybody think two years ago that we would get
Speaker 1: to the point where I could go in and say
Speaker 1: I want to fire my DEI professional because to do
Speaker 1: to keep him? You know, of course they're changing titles
Speaker 1: and things like that, but the whole idea that all
Speaker 1: that's been turned on its head. Sure somebody can come
Speaker 1: in in twenty twenty eight and try to reduce some
Speaker 1: of those things, but it's not going to be the
Speaker 1: same anymore. That it makes a difference.
Speaker 2: That's my point is is, yeah, sure a Democrat could
Speaker 2: come in in twenty twenty nine and say, oh, I'm
Speaker 2: going to reinstate the Affirmative Action Executive Order, well, yes,
Speaker 2: they have the power to do that if nothing changes legislatively,
Speaker 2: But I think then people will notice and it will
Speaker 2: be unpopular, and so that's why I think it won't work.
Speaker 2: I think you're right, they've changed the ground on all this.
Speaker 2: And oh, by the way, on the DEA stuff, I
Speaker 2: want to do an article of this if I can
Speaker 2: find time. We know what they're doing. They're changing the
Speaker 2: names or moving people around. They're calling it belonging and
Speaker 2: advancement or something like that, and so that'll be hard
Speaker 2: and well, I think they actually dropped that word too.
Speaker 2: My point is is the whole racket depends on a
Speaker 2: common vocabulary of cliches. They won't know what to say.
Speaker 2: I mean, but the last several years, I've said, you
Speaker 2: noticed that every statement from a DEI office sounds the same.
Speaker 2: They use the same sentences, the same cliches. And now
Speaker 2: they're going to invent the whole new vocabulary. And if
Speaker 2: that becomes too obvious, then you just go after that.
Speaker 2: I think that it's I mean, they'll try, and I'm
Speaker 2: not being complacent, but I think it's gonna be funny
Speaker 2: to watch them bob and weave and it'll just be incoherent.
Speaker 1: So another thing that, of course I'm thrilled to death about.
Speaker 1: And then was more than pleasantly surprised when John sent
Speaker 1: me his wonderful article from Newsweek Today about the pardons,
Speaker 1: which Steve will to in the show notes. Even though
Speaker 1: I did put it on my Twitter at all, seven
Speaker 1: of my followers read it and liked it. Actually more
Speaker 1: than that. But it was a great article. And and
Speaker 1: part of the reason that it was great, I mean,
Speaker 1: you're a partisan, John, You're not as much of a
Speaker 1: partisan as I am, of course, but you're a partisan.
Speaker 1: But you did. You went out of your way in
Speaker 1: that article. And I guess I shouldn't leave out your
Speaker 1: your co author, but I don't know him, so I'm
Speaker 1: just giving you all the credit.
Speaker 2: I don't think I think John made him up.
Speaker 1: But anyway, okay, that's fine, that's okay. Then I don't
Speaker 1: feel bad. But but it was. It was just a
Speaker 1: straight up analysis of of the use of the pardon
Speaker 1: power by Biden, by Trump, and all of the the
Speaker 1: details that people may or may not have been thinking
Speaker 1: about that that show how one even if you disagree
Speaker 1: ultimately with what would what we call it the substance
Speaker 1: of who was pardoned under Trump. Uh, what the way
Speaker 1: that Trump went about it. The exercise of the power
Speaker 1: itself was in fact consistent with the Constitution and appropriate,
Speaker 1: whereas Biden's I'm going to stop talking because you did
Speaker 1: a better job. Tell us just a little bit about
Speaker 1: the conclusion you came to, John, Well.
Speaker 3: Yeah, I tried to write it without regard to the
Speaker 3: individual cases, just the use of the power, and Trump's
Speaker 3: is much more in keeping with tradition. Or he didn't
Speaker 3: preempt anybody, and there were no preemptive pardons, right. What
Speaker 3: he did was he actually waited until after the cases
Speaker 3: were all prosecuted, and a lot of these people already
Speaker 3: spent time in jail. And you know, I was trying
Speaker 3: thing the equivalent of if Trump had followed Biden's example,
Speaker 3: he should have pardoned all the January sixth defendants on
Speaker 3: January right in January seventh, twenty twenty one, and never
Speaker 3: let them be investigative prosecutor. So this idea of using
Speaker 3: preemptive part gardens in this mass way, I think is
Speaker 3: quite dangerous. So the other thing, the second big difference is,
Speaker 3: and I think this is tisen with Steve's point about
Speaker 3: the presidency in the election. Is that for good or ill.
Speaker 3: Trump campaigned on it, like he went to the American
Speaker 3: people said, if you elect me, I'm going to pardon all.
Speaker 3: In fact, people didn't believe me he was going to
Speaker 3: do it. Even his own vice president didn't believe he
Speaker 3: was going to do it, right, but he parted them
Speaker 3: as well. It's very hard to say that this is
Speaker 3: an exercise of presidential power that the American people disapproved
Speaker 3: of because they knew he was going to do it
Speaker 3: when they elected him to office. That's also very different
Speaker 3: than Biden because Biden told, you know, before the November elections,
Speaker 3: he said he wasn't going to pardon Hunter. Then he
Speaker 3: did it. I mean, he actually broke his promise to
Speaker 3: the American people.
Speaker 2: Those are two, really, I think.
Speaker 3: The butt and the last thing. And this is what
Speaker 3: Trump's going to have to do now, because this is
Speaker 3: just part of the cycle of lawfare that the Biden
Speaker 3: people started. Is not just he pardoned his family, his
Speaker 3: political supporters, members of hisministration. I want to blame Trump
Speaker 3: when he leaves office for Greg doing a mass pardon.
Speaker 3: For every single person who serves in an administriction now and
Speaker 3: every president's going to do that from now on?
Speaker 1: Do you think that really will happen? Or do you
Speaker 1: think that maybe there are people who say some of
Speaker 1: the norms are norms, even if the Biden crime family
Speaker 1: corruption destroyed those norms. There are some things we just
Speaker 1: shouldn't do. I mean, I don't think Trump's going to
Speaker 1: go after his political opponents with the kind of lawfare
Speaker 1: Biden did, even though that practice was that that norm
Speaker 1: was broken. I really don't. I don't think he's going
Speaker 1: to would Trump?
Speaker 3: Why would Trump trust Democrats, not just federal ones, but
Speaker 3: the ones in cities like New York and Atlanta? Why
Speaker 3: would he trust them to leave not just him, after
Speaker 3: the Hospice family and anyone who served in his administration alone,
Speaker 3: after what they just did the last four.
Speaker 1: Years a federal presidential part and wouldn't stop all of
Speaker 1: those you know, brag and Fanny willis uh corrupt hacks.
Speaker 1: So you have to I mean, I get what you're.
Speaker 2: Saying, But can I just say before we move on
Speaker 2: to Cretia that John you're the byeline of the article
Speaker 2: is John Hu and John Shoe. I don't believe there
Speaker 2: is a John Shoe. I think that's you under suit
Speaker 2: in him on the blowback.
Speaker 3: Right.
Speaker 2: I've never heard of this guy. I've never seen him. Oh,
Speaker 2: he's a great guy.
Speaker 3: He's a lawyer in Orange County. Actually he's a Californian too.
Speaker 3: Oh okay, likes he likes you know what he's strings.
Speaker 3: He likes mc ribs.
Speaker 2: Also, Oh that's why McDonald's. I get it now, and
Speaker 2: now it all comes clear.
Speaker 1: Okay, Well, anyway, I really do encourage our listeners to
Speaker 1: read it. It's it's got all the excellent arguments you
Speaker 1: need for in case you come up with somebody like
Speaker 1: my idiot troll Center Senator Mark Kelly, who says, oh god,
Speaker 1: this is terrible. I'm the son of two police officers,
Speaker 1: and I am just I am just you know, the
Speaker 1: traumatized by what Trump.
Speaker 3: Yeah, what about the murderer of that that commuted who
Speaker 3: killed Yeah, I mean it's.
Speaker 1: Murdered Ashley Babbitt. Yeah, anyway, yeah, I know, I know. Sorry, Okay,
Speaker 1: I'm done with that because we want to move on
Speaker 1: to our main topic. Even though I could discuss this
Speaker 1: with John all Knight. Our main topic today is the
Speaker 1: First Amendment. Steve hopefully isn't going to do what he
Speaker 1: threatened to do. And uh, start this discussion of freedom
Speaker 1: of speech with a discussion of John Milton and John
Speaker 1: Stuart Mill made me think of wait, wait, Steve. It
Speaker 1: made me think of that great line in Animal House.
Speaker 1: I find Milton boring. Missus Milton finds Milton boring too.
Speaker 2: I don't remember that line.
Speaker 1: Oh god, it's a great line. It's a Sutherland.
Speaker 2: Uh what's his name, Donald Sutherland?
Speaker 1: Donald Sutherland. When he's standing there and he says, Okay,
Speaker 1: I come on, I get it. I find I know,
Speaker 1: you find Milton board. I find him born too, So
Speaker 1: did missus Milton. And then he takes a bite on
Speaker 1: the apple. He says, but this is my job.
Speaker 3: I don't remember that, you know, I didn't know it
Speaker 3: was I don't remember it was Milton. I remember him
Speaker 3: saying those lines, yeah it.
Speaker 1: Was Paradise Loss, that he has signed Paradise Loss. And
Speaker 1: he starts, you know, droning on, and nobody's paying attention anyway. Okay, sorry,
Speaker 1: I'm done.
Speaker 2: Well, actually I can't resist the cultural comment about my job.
Speaker 2: I mean, you may know the story that they needed
Speaker 2: a big name for the movie. Sutherland was the big name,
Speaker 2: and he agreed to do one day. They shot all
Speaker 2: the scenes in one day, for which he was paid
Speaker 2: thirty five thousand dollars. Now they offered him i think
Speaker 2: two percent of the gross, which he didn't take.
Speaker 3: It.
Speaker 2: He would have made, like, you know, twenty million dollars
Speaker 2: or something if he done that, the biggest mistake of
Speaker 2: his life. Right, Okay, I think that's a funny story.
Speaker 4: I know.
Speaker 1: But you know what if fameous the passion of the
Speaker 1: noblest mind, the ruling passion of the noblest mind. He's
Speaker 1: very famous for being in animal House.
Speaker 2: Yeah, well, look, it's not that one to talk about
Speaker 2: Milton and mill and all the rest of that. Let
Speaker 2: me work back to it this way, because it actually
Speaker 2: connects to you. John's latest response on our natural law argument,
Speaker 2: where he says something wrong in every paragraph, it seems
Speaker 2: to me but Row right, well, what do you high? No,
Speaker 2: I've got to telescare ten year old tonight is what
Speaker 2: I'm drinking. But well, no, at the at the end,
Speaker 2: you actually borrow the arguments of who was it two
Speaker 2: very bad people about how the First Amendment exist in
Speaker 2: other civil rights to protect democracy, And see, I think
Speaker 2: that's backwards. Constitutional democracy is designed as the Declaration of
Speaker 2: Independence teaches to protect our rights, including free speech. Now,
Speaker 2: the older views version of free speech, which does have
Speaker 2: its anchor, and people like John Milton especially but not
Speaker 2: so much John Stuart Mill was that speech was the
Speaker 2: tool to help us reach truth. The utter philosophical view
Speaker 2: of free speech is based not on reason but on
Speaker 2: skepticism that any truth can be reached. This is Walter
Speaker 2: Burns's point in his great first book, Freedom Virtue in
Speaker 2: the First Amendment. And by the way, he wrote the
Speaker 2: chapter on Milton and the famous Straus cropsy reader, and
Speaker 2: one of the things he teases out, I can do
Speaker 2: this Lucretian two sentences is everybody reads Milton superficially in
Speaker 2: the Aeropa gillicar wherever it's pronounced. They say, oh, Milton
Speaker 2: was the great tribune of free expression, because free expression,
Speaker 2: you know, it is great. It reaches truth. Vital to
Speaker 2: his view on free expression was individual virtue, and only
Speaker 2: a virtuous people could be trusted with free speech because
Speaker 2: then they would advance virtue and could be self governing.
Speaker 2: The implication was if you lost all that, free speech
Speaker 2: would become a danger. Okay, fast forward to the twentieth century.
Speaker 2: What the Supreme Court does. And this is what Frank
Speaker 2: Canevan taught and also Walter Burns, was we have traded
Speaker 2: some view of the reason of free speech and instead
Speaker 2: we've converted. Well, we're all looking for limits. What are
Speaker 2: the limits? It's a free speech So in the Shank case,
Speaker 2: it starts everything sort of clear and present danger. Is
Speaker 2: there a danger to national security? Right? And what Burns
Speaker 2: goes through very carefully, and I can't even begin to
Speaker 2: summarize it is that was never applied consistently or coherently.
Speaker 2: They're always making stuff up and that's part of the
Speaker 2: whole balancing test story of the Supreme Court. But the
Speaker 2: limits where they find the limits are not on some
Speaker 2: view of free expression and its contribution to virtue or freedom.
Speaker 2: It's always they'd converted an action, right, So is it incitement?
Speaker 2: Is it going to cause a riot? Is it a
Speaker 2: threat to national security? And so finally you come to
Speaker 2: you know, Cohen b. California, where they say, well, you know,
Speaker 2: one man's lyric is another man's poetry, right, and you know, right,
Speaker 2: the guy who had the the F word on his
Speaker 2: T shirt, right, which, by the way, yeah, I think
Speaker 2: I think it's correct. That the word it was on
Speaker 2: the shirt was never mentioned in the oral argument are
Speaker 2: by of the justices in that case, which tells you
Speaker 2: what there was still some sense of decency. See Walter
Speaker 2: Burns thought decency was a real thing, tangible thing, not
Speaker 2: a subjective by the way. Yeah, well he he he
Speaker 2: and Walter agree on that and agrees with Frank Canavan. Right,
Speaker 2: so some in other words Canavan in his great book, Well,
Speaker 2: actually it's in one of his columns. Uh, our lawness
Speaker 2: has abandoned reason as the foundation of liberty and a
Speaker 2: substituted skepticism. I think that's.
Speaker 3: Probably heard of this guy.
Speaker 1: Who is this Sky Cavan Cavan Heather to you.
Speaker 2: Yes, well he's Jesuit father. All I need to tell you, John,
Speaker 2: is that he and Harry Jaffer are the same high
Speaker 2: school together and graduated in the same class in Brooklyn
Speaker 2: way back when. And the rest.
Speaker 3: He's a Straussian Biosmoses.
Speaker 1: Yeah, he came to our Harry and Harry Dog and
Speaker 1: Pony show one time.
Speaker 2: Yeah. Well, his his book and I'll try and link
Speaker 2: to it, except it's out of print. It's called Freedom
Speaker 2: of Expression Purposes Limit. It's got some of the best argument.
Speaker 1: My version of it.
Speaker 3: Steve pieces, well, what is this argument that's different?
Speaker 2: Well, well, now see, I'm going to make Lucretia impatient,
Speaker 2: and she'd be right to because I haven't organized to
Speaker 2: summarize it, so I won't try.
Speaker 1: You don't need to, because I want to ask John
Speaker 1: some questions. Good, you can think about it and if
Speaker 1: it becomes relevant.
Speaker 2: Now that wasn't That wasn't too tedious, now was it.
Speaker 1: Lucretia just probably didn't add all that much. Oh, okay,
Speaker 1: it wasn't terrible. But but last time we wanted to
Speaker 1: discuss and Steve wouldn't let us. Uh. The whole concept though,
Speaker 1: of the Supreme Court's attempt to put what they thought
Speaker 1: were reasonable limitations on freedom of speech. And there are
Speaker 1: lots of different ones. Steve mentioned some of them. You know,
Speaker 1: a speech that presents a clear and present danger that
Speaker 1: indeeder's national security, the speech it causes riot, you know,
Speaker 1: those sorts of things. But John and I started and
Speaker 1: Steve stopped us last time talking about the question of
Speaker 1: libel and I think that the United States may be
Speaker 1: you can probably give me a better answer to this, John,
Speaker 1: but it may be the only uh, democracy republican form
Speaker 1: of government that actually considers libel a violation of the
Speaker 1: First Amendment, but uh, you know, tries to tries to
Speaker 1: create rules around it. In most other countries, you can
Speaker 1: easily be prosecuted for libel. Is I guess what I'm
Speaker 1: trying to say, I'm not saying it very clearly. Does
Speaker 1: that sound right to you, John?
Speaker 3: I mean, I think that the United States has probably
Speaker 3: the broadest free speech and free press rights in the
Speaker 3: industrialized world, you know, on multiple issues.
Speaker 1: So right, I know, I believe that too. It's going
Speaker 1: to say it at the end, But.
Speaker 3: Like the Kingdom, they don't have anything like the absence
Speaker 3: of malice standards. You have this weird legal situation where
Speaker 3: you can publish a book and in the United States
Speaker 3: the book can't you can't sue someone for libel even
Speaker 3: though and then in the United Kingdom people will go
Speaker 3: to the United Kingdom and sue the authors there for
Speaker 3: the exact same book. But I wanted to just briefly
Speaker 3: explain the difference I had with Steve, which I think
Speaker 3: the difference I have is I always thought was the
Speaker 3: conservative critique of the Supreme Court's First Amendment case, where
Speaker 3: you know, the Supreme Court doesn't limit speech full free
Speaker 3: speech a protections just to political speech. Right, So they
Speaker 3: provided to pornography, they provided to alleged art like the
Speaker 3: crucifix and the jar of urine. And so I thought
Speaker 3: that the idea that the real core protection for First
Speaker 3: speech should be political speech because it's necessary to engage
Speaker 3: in self government was traditionally the conservative argument against progressives
Speaker 3: who want to expand speech to inform, and they're the
Speaker 3: ones who That's why I'm very puzzled by Steve's claim that,
Speaker 3: you know, First Amendment is this kind of free speech,
Speaker 3: is this kind of right the pre exist government, And
Speaker 3: it's much broader than what we should would think it
Speaker 3: is because conservatives really oppose the effort of progressives to
Speaker 3: try to turn speech into this kind of autonomy self
Speaker 3: slash self actualization, right, which is just about right. It
Speaker 3: is about you expressing yourself, right, that's all the free
Speaker 3: speech itself protects everything. Yeah, so I'm surprised to hear
Speaker 3: that Steve comes out with this sort of a sort
Speaker 3: of Nike approach to the First Amendment, which is just doing.
Speaker 2: No, no, no, no. First of all, okay, I didn't
Speaker 2: I didn't make myself clear on that point. That's actually
Speaker 2: Canavan's book is called wait, it's called Freedom Purposes Limit
Speaker 2: and so so narrowly speaking, you can make an intelligible
Speaker 2: distinction between speech which relates to political purposes and expression
Speaker 2: which means naked dancing.
Speaker 3: Right.
Speaker 2: And when I say that the modern uh uh jurisprudence
Speaker 2: on free speech and our Supreme Court has is based
Speaker 2: in moral skepticism, that we can make that distinction. That's
Speaker 2: my argument. The three statement I just said it. So
Speaker 2: that statement I made comprises the distinction you just made.
Speaker 2: But you're saying that you missed that somehow, you're saying
Speaker 2: that the you're allergic to metaphysics. We know this.
Speaker 3: No, no, you're But your point was that the right
Speaker 3: to free expression of every speech what everyone call pre exists
Speaker 3: the government right. It's a natural right. Well, it's not
Speaker 3: just limited to political speech or the speech necessary.
Speaker 2: No I'm not. I'm not saying that.
Speaker 3: You're not saying that, no one.
Speaker 2: Well, no, you didn't. I mean, and here's where I
Speaker 2: think lucreature the way you said things. I mean, let's
Speaker 2: introduce another angle here, which was all the first amendments
Speaker 2: said Congress shall make no law a bridging the freedom
Speaker 2: of speech or of the press. They did not say
Speaker 2: what New York Times versus Sullivan said, which is a
Speaker 2: higher standard for libel and slander in other words, the
Speaker 2: very earliest days in the Republic. In other words, it meant,
Speaker 2: as we say today, no prior restraint. That did not
Speaker 2: mean you weren't liable for something that was slanderous, libelous
Speaker 2: or seditious. Soeditious libel was still prosecuted actively in those
Speaker 2: early years. That's part of the basis of the Virginia
Speaker 2: and Kentucky resolutions. What was the alien right? And the
Speaker 2: courts had no problem with applying punishments for seditious and
Speaker 2: libelist speech after the fact. And so by the time
Speaker 2: you get to New York Times, I agree.
Speaker 3: I agree on New York Times versus Solion point. I
Speaker 3: just don't think that that's the that's the central issue
Speaker 3: for first gonment.
Speaker 2: Well, we're making progress with John Lucre.
Speaker 1: I don't even remember the context now that they're looking
Speaker 1: at prosecute the Trump administration is looking at prosecuting some
Speaker 1: former Biden administration officials under the seventeen ninety eight Sedition Act.
Speaker 2: You mentioned that I think that's going a little too far.
Speaker 3: You don't want to resurrect the aliens edition XT to
Speaker 3: you really.
Speaker 1: So it might be the retribution for resurrecting the Logan Act.
Speaker 4: I don't know.
Speaker 1: I thought, I think that's go ahead.
Speaker 3: Well, I think the action such as you know, where
Speaker 3: the action for First Amendment rights is going to be
Speaker 3: is not the change in the New York Times versus
Speaker 3: Elivan's standard, though that has been corrosive in a way.
Speaker 3: But I think it's going to be actually, how did
Speaker 3: you put it, different kinds of speech, like speech by
Speaker 3: government employees, speech by social media like I think that's
Speaker 3: the going to be the harder thing, Like the case
Speaker 3: that we saw with the efforts a COVID censorship COVID censorship,
Speaker 3: remember the government not prohibiting the speech itself, but trying
Speaker 3: to persuade social media companies to do it for them.
Speaker 3: I think that's where the real hard questions in the
Speaker 3: future are going to be about the free speech class,
Speaker 3: not so much the standard, but what comes within the
Speaker 3: scope of free speech at all.
Speaker 1: I don't disagree. I do think that they'll probably revisit
Speaker 1: the absence of malice standard. My point we discussed briefly
Speaker 1: the last time is that they've begun in many ways,
Speaker 1: because it's probably so hard to figure out who is
Speaker 1: and who is not genuinely a public figure, they've begun
Speaker 1: to to apply some kind of malice standard to any
Speaker 1: libel suit or slander suit, it seems to me.
Speaker 4: But my.
Speaker 1: Back to the Missouri versus what was the actual case
Speaker 1: that went.
Speaker 3: To more important Murphy Murph the case about book.
Speaker 1: Yeah, and I would say that you're probably right, and
Speaker 1: a little bit of proof of what you just said
Speaker 1: about how those are the most difficult issues is that
Speaker 1: the dread coward Roberts refuse to take it up. And
Speaker 1: of course it's turned out that that you know, they're
Speaker 1: the whole standing the issue that somehow Missouri didn't have standing.
Speaker 1: I don't know how they did. It's so dumb. But
Speaker 1: one of the most important questions that the Supreme Court
Speaker 1: has ever been asked to decide, and one critical to
Speaker 1: I think critical to the success of our republican form
Speaker 1: of government, is that the government cannot use the means
Speaker 1: of communication out there or the media, whatever you want
Speaker 1: to call it, whether it's social media or otherwise, coerce
Speaker 1: it into regime propaganda, which is exactly what happened during
Speaker 1: the Biden administration. And again, Roberts is such a coward.
Speaker 1: He just punts on the issue, refusing standing. I think
Speaker 1: that they're going to have to decide that issue. And
Speaker 1: all of the evidence indicates that the Biden administration was
Speaker 1: corrupt and tyrannical about it.
Speaker 3: I mean, I only one of the executive orders actually
Speaker 3: that Trump signed has called something about ending censorship by
Speaker 3: the federal government, and I think he ordered every federal
Speaker 3: agency and include the Justice Department, to try to collect
Speaker 3: information on any kinds of similar uses of social media
Speaker 3: by the Biden administration, of the last or even before
Speaker 3: the Bide administration. But it focuses on the last four
Speaker 3: years and report it to the public and to determine
Speaker 3: whether any laws were violated. So we may learn a
Speaker 3: lot more soon about what the government did to deep
Speaker 3: platform and censor people.
Speaker 1: Let's take a quick break for our sponsors and come
Speaker 1: back and dig into this a little bit deeper before
Speaker 1: for Steve makes me shut the whole thing down. You
Speaker 1: know who he is. So this whole thing about freedom
Speaker 1: of speech, libel, we started talking about it last week
Speaker 1: and never finished because of the ruling against CNN. Now,
Speaker 1: as I recall, it was the Navy Seals and it
Speaker 1: last name was Young. He had been he had been
Speaker 1: libeled by CNN, the first and most important aspect of
Speaker 1: any libel cases, whether or not it's true. There was
Speaker 1: an early ruling by the judge that what CNN accused
Speaker 1: him of was absolutely not true. But they did have
Speaker 1: to John, it seems to me, in order to continue
Speaker 1: the case. They were showing the malice, not just that.
Speaker 1: They were showing that not only did what's his name
Speaker 1: Jake Tapper, Jake Tapper and others know that what they
Speaker 1: said wasn't true, but they were saying it was with
Speaker 1: actual malice. They were saying it purposefully knowing it was untrue,
Speaker 1: et cetera. So explain that a little bit too.
Speaker 2: Well, just to add for listeners. I mean, they had
Speaker 2: the emails of the producers saying, I'm going to nail
Speaker 2: this m effort. I mean, the motivation to get this
Speaker 2: guy was clear. I mean, you talk about smoking guns
Speaker 2: and by the way, I didn't you know did CNN claim?
Speaker 1: Well?
Speaker 2: Wait, because of course under New York Times, if you're
Speaker 2: a public figure, the bar is higher, and I think
Speaker 2: CNN was claiming, well, we reported on him, that made
Speaker 2: him a public figure.
Speaker 3: Really he wasn't a public figure.
Speaker 2: No, I mean, but that's okay, go ahead, John, No, No,
Speaker 2: I mean.
Speaker 3: This is the reason why New York Times versus Sullivan
Speaker 3: will quite popular, I think with progressives. Just you know,
Speaker 3: it makes no effort to fit into the original understanding.
Speaker 3: This whole structure of it's just you know, clearly just
Speaker 3: created by judges. So if you're a public figure versus
Speaker 3: if you're a private figure makes all the difference, because
Speaker 3: if you're a private figure, then the truth, you know,
Speaker 3: when the crecious talk about this, or the traditional libel
Speaker 3: and defamation law that still exists in the other common
Speaker 3: law countries would go into effect. And that's just did
Speaker 3: someone say something untrue about you which harmed your reputation.
Speaker 3: That's But if you're a public figure, then you have
Speaker 3: to show and the absence of malice standard is a
Speaker 3: little misleading in what it implies. So you have to
Speaker 3: show that the newspaper or media outlet had malice in
Speaker 3: some ways. So if there's a yes, So if there's
Speaker 3: an absence of malice on the part of the press,
Speaker 3: then they get out of it, even though there's nothing
Speaker 3: in the First Amendment which suggest public figures our government
Speaker 3: officials are subject to a different standard than regular people,
Speaker 3: and that's not the way it is say in the
Speaker 3: United Kingdom. In fact, I think that Prince Harry or
Speaker 3: Prince William just won a case just the other day
Speaker 3: against against the newspaper, So that has just no rooting
Speaker 3: in the original understanding. Now, the interesting thing about how
Speaker 3: the law works is that you don't have to show
Speaker 3: this this male stander doesn't. You don't have to actually
Speaker 3: show what Steve was saying. They did show on this
Speaker 3: trial that they were you know, they had bad motives.
Speaker 3: It's really more about did you know you were publishing
Speaker 3: something that was untrue and you decided to publish it anyway? Right,
Speaker 3: so you know, did you even could you reckulously? Sometimes
Speaker 3: there have been cases where the TV, you know, the
Speaker 3: media outlet has lost because they recklessly ignored all the
Speaker 3: other evidence that they easily could have seen showing that
Speaker 3: they were about to publish was wrong. But again that
Speaker 3: you know where you know so well, you know, I
Speaker 3: can kind of see where this is why the court
Speaker 3: decided what they did. But they went too far because
Speaker 3: if you look at the original facts of New York
Speaker 3: Times versus Sullivan. Right. This is a case by a
Speaker 3: Southern side coggregationist against the New York Times, Right, and
Speaker 3: for I believe the New York Times published a negative
Speaker 3: story about segregationists, and so he sued them in state
Speaker 3: court under common law libel and so the court, I mean,
Speaker 3: the court just went too far.
Speaker 1: But thought they could get away with it because of this,
Speaker 1: and they.
Speaker 3: Did get away with it.
Speaker 2: Can I add in what should be an obvious point,
Speaker 2: but I think has been forgotten And there's something you
Speaker 2: said about libel laws in the UK, John that prompted
Speaker 2: this thought. New York Times versus Sullivan is what a
Speaker 2: private action? The last week's case of CNN versus Young
Speaker 2: is a private action. The First Amendment says Congress shall
Speaker 2: make no law, I mean, the government shall make no
Speaker 2: law restricting freedom of speech. But we've extended that coverage
Speaker 2: of protection of the First Amendment in private actions. Now
Speaker 2: in Britain, as we know, and I think you're hinted
Speaker 2: at this, and if listeners aren't clear, the libel laws
Speaker 2: are much more as we would say, liberal. It's much
Speaker 2: more easy to win a libel case. In court. In Britain,
Speaker 2: Winston Churchill won a famous libel case against him back
Speaker 2: in the I don't know the twenties from someone in
Speaker 2: the paper who said he was a gay or you know,
Speaker 2: a sodomite or something like that.
Speaker 1: Right.
Speaker 2: Well, but the difference is in Britain they are able,
Speaker 2: the government is able to censor people, and they do
Speaker 2: that much more aggressively than we do. So, in other words,
Speaker 2: our first member of protections against the government, as porous
Speaker 2: as they are in some places like Murthy for Missouri
Speaker 2: bi Murthy proved, are better than England, where this private
Speaker 2: party is actually has more ability to sue and collect
Speaker 2: under libel, but has less ability to defend their free
Speaker 2: speech rights against their own government. And we need to
Speaker 2: sort that out.
Speaker 3: Well, that prompts this argument that Lucretia, you and I
Speaker 3: were having by text about whether writing down the rights
Speaker 3: is more protective, which is what we do in the
Speaker 3: United States versus a country, whether the rights are not
Speaker 3: written down like Great Britain. You know, Great Britain. You know,
Speaker 3: if you talk to British lawyers or British politicians, they
Speaker 3: think they have free speech there, just you know, they
Speaker 3: think they have free speech tradition there, just like we
Speaker 3: do here. But when you look at it, I think
Speaker 3: it's a lot of narrower there, yes, than it is here.
Speaker 3: I mean, you can be right, you can be punished
Speaker 3: for hate speech, yes, and Great Britain, actually in all of.
Speaker 2: Europe, but in Britain, and you get.
Speaker 3: I mean, I think the free speech there is a
Speaker 3: subject to government control the Official Secrets Act, but also
Speaker 3: to the diversity. The dei industry is much more powerful
Speaker 3: there when it comes to suppressing speech. I always think
Speaker 3: that shows that the anti federalists right, so that you know,
Speaker 3: that might show that may actually show that the anti
Speaker 3: federalists were right, which is what I was arguing about
Speaker 3: against before.
Speaker 2: But wait, and weren't they taking Hamilton's position that the
Speaker 2: Bill of Rights?
Speaker 3: Yeah, so that the English would be taking Hamilton's position
Speaker 3: and the anti federalists would be taking the position we're
Speaker 3: talking about now that actually maybe the anti federalists were
Speaker 3: right that writing down the Free Speech Club. That's not
Speaker 3: the position I was taking in the arguments we had.
Speaker 3: But I'm just saying crompt those positions. We were just
Speaker 3: talking about.
Speaker 2: It, and I just say, if we keep changing places,
Speaker 2: John we're going to confuse gen Yarborough stop.
Speaker 1: I actually want to take that up because I'm not
Speaker 1: necessarily disagreeing with you. My point is a deeper one, John,
Speaker 1: My point is, and it takes us into the last
Speaker 1: section of our discussion of this My what I want
Speaker 1: to bring to the table. My point is that the
Speaker 1: education of Americans in their in their freedoms. I'm not
Speaker 1: even going to call it rights. I'm going to call
Speaker 1: it freedoms. The education that Americans fully understand that government
Speaker 1: cannot should not make laws abridging their freedom of speech
Speaker 1: is in and of itself a powerful force. And I
Speaker 1: don't necessarily want to go back into that whole discussion
Speaker 1: of the Bill of Rights. I think we should concentrate
Speaker 1: on it and do a really good job time in
Speaker 1: the future. But what Hamilton's saying in his argument against
Speaker 1: it is that what you do is you educate the
Speaker 1: people deep. The deep point is you educate the people
Speaker 1: to believe that Congress can do whatever it wants to
Speaker 1: do unless you carve out from that certain rights for
Speaker 1: the people that stops them limitations on Congress, where in fact,
Speaker 1: a written constitution is nothing more than a grant of
Speaker 1: power to Congress whether you know, it's very difficult for
Speaker 1: me to argue that Hamilton was right, because we've had
Speaker 1: a Bill of Rights, we've had that education of people
Speaker 1: of the American people for you know, over two hundred
Speaker 1: years now in the their freedoms as outlined in First Amendment,
Speaker 1: et cetera. The question again, really interesting question, I think
Speaker 1: that we could spend a long time about. But what
Speaker 1: I would argue is, regardless of whether it came from
Speaker 1: their fundamental understanding of their sovereignty or they're being educated
Speaker 1: in the freedoms they have under the Bill of Rights,
Speaker 1: Americans are very much committed to it. And it turned
Speaker 1: out to be, in my opinion, in many ways, the
Speaker 1: difference in this election, because what you had were enough
Speaker 1: Americans upset about the fact that the Biden administration was
Speaker 1: in fact using its powers to force the regime message
Speaker 1: and force all other messages out of the marketplace of ideas.
Speaker 1: And then you had some but this guy, you know,
Speaker 1: this crazy autistic guy who says, wow, this seems to
Speaker 1: be problematic, and he buys Twitter. And Twitter's not the
Speaker 1: only place where alternative views get put out there, but
Speaker 1: it's a pretty important one, and all of a sudden,
Speaker 1: all the attempts by the regime media to control the
Speaker 1: flow of information were destroyed. I mean, I don't know
Speaker 1: if you guys saw to forget which congressman really great guy.
Speaker 1: He's talking to somebody at CNN. Uh, yes, what was
Speaker 1: his name? Who's the Yeah, that's him.
Speaker 2: Oh, Jim Acosta, though, Jim Acosta.
Speaker 1: He's talking to Jim Acosta, and Jim Acosta gets really upset.
Speaker 1: They're talking about the pardon John, and Jim Acosta gets
Speaker 1: really upset, and you know, insists that CNN showed all
Speaker 1: the horrible violence, how many thousands of police officers were
Speaker 1: killed by January six protesters. And then it was on
Speaker 1: our news and it's or you're not talking to Fox here,
Speaker 1: You're talking to CNN real news. And the congressman comes
Speaker 1: back and says, that's why more people watch episodes of
Speaker 1: sp SpongeBob, was it called square Pants? Yes, then watch
Speaker 1: CNN something along those lines, and it was just hilarious.
Speaker 1: But the point is you can do that now. It
Speaker 1: used to be that CNN could control the narrative most
Speaker 1: of the time, and before that it was you know,
Speaker 1: Walter Cronkite. But in anyway, So enough about that. My
Speaker 1: further point is that has spread. They don't have the
Speaker 1: same protections for the First Amendment in Great Britain. But
Speaker 1: all of a sudden American commitment to freedom of speech
Speaker 1: and social media, worldwide Internet, et cetera, et cetera, and
Speaker 1: all of a sudden you're seeing it make a difference
Speaker 1: in places like Great Britain.
Speaker 3: So I think you're making two different points. So I
Speaker 3: could I could totally take the argument that Americans now
Speaker 3: have lost their connection to the sort of natural right
Speaker 3: environment to the founding, don't think of rights as being
Speaker 3: unenumerated and really sort of think of rights as those
Speaker 3: in the written document. I don't think that's the fault
Speaker 3: of writing them down in the written document. That's a
Speaker 3: what you're talking about is, you know, much bigger, deeper issue.
Speaker 3: I don't think it's really affected by the writing of
Speaker 3: the rights down or not. I mean, because again, look
Speaker 3: at England, right, they did write the rights down. I
Speaker 3: would say they have even less of a view of
Speaker 3: rights being unenumerated and inherently natural than we do now.
Speaker 3: I do think though that we always no I don
Speaker 3: at the time of the Founding, the founders thought they were,
Speaker 3: you know, we're storing English rights. I mean, I think
Speaker 3: that we might have started out the same point that
Speaker 3: what's interesting is how rapidly they lost it and we
Speaker 3: kept it. But the other thing I want to just
Speaker 3: point out is I think the writing the Constitution has
Speaker 3: this beneficial effect which is and this is an argument
Speaker 3: that people are having about the Founding, which is, is
Speaker 3: the Constitution a legal document or a political document? And
Speaker 3: so sometimes I think the creature you're suggesting the constitutions
Speaker 3: a political document, but it is also a legal document,
Speaker 3: which means that you can go into court and you
Speaker 3: can defend your written rights because the rights are are
Speaker 3: right set out in the document. And that's that's something
Speaker 3: that Marshall's says for the first time in Marbury. Well,
Speaker 3: the Constitution is not just this political document which you
Speaker 3: use just for self organization and you can look at
Speaker 3: to take his inspiration, but it's also something you go
Speaker 3: into court and it makes a difference you win or
Speaker 3: lose cases based on it. That's something that's new in
Speaker 3: the That's what the Americans. Event we get written constitution.
Speaker 2: That's right, all right, But the number of our argument
Speaker 2: about natural law, John and not to divert here. I'm
Speaker 2: just gonna plant this for now. Is that the debate is,
Speaker 2: I think, is how much of the political side of
Speaker 2: the Constitution needs to inform the legal side of the
Speaker 2: judgments that come out of it. That's a short sentence
Speaker 2: for a lot. But look, I want to back up.
Speaker 3: Use some kind of like intellectual Johnny apple Seed running
Speaker 3: around throwing all kinds of seeds hoping they're going to grow.
Speaker 3: My job is to take a big food and squash
Speaker 3: them all.
Speaker 2: All right. First of all, just for listeners who may
Speaker 2: not know exactly what we're talking about, it's is it
Speaker 2: Federalist eighty four or Hamilton?
Speaker 1: Yeah, so I thought we were going to do this tonight.
Speaker 2: No I'm not. I'm just gonna say as reference and
Speaker 2: then get back to something you said, Lucretia. What Hamilton
Speaker 2: says in eighty four is a bill of rights to
Speaker 2: be dangerous because we leave things out. So the way
Speaker 2: I explained it is people the legislature comes along and says, well,
Speaker 2: the Bill of right says we can't you know, take
Speaker 2: your guns away and bridge your speech. It didn't say
Speaker 2: we can't tax dwarves, right. I mean, that's sold sort
Speaker 2: of common law contract law language.
Speaker 3: I'm all for taxing Dwarves me too.
Speaker 2: Starting with Robert Rice, you should have one hundred percent. Okay,
Speaker 2: but see Lucretia. You had said something interesting a second ago,
Speaker 2: very quickly, which was what I think John said. Americans
Speaker 2: think their right to free speech is anchored at First Amendment,
Speaker 2: and in modern times you said they always did. I'm
Speaker 2: not sure that's quite right. And here's my proposition. I'm
Speaker 2: conflicted about this. Let me brief detour. I think you've
Speaker 2: been president John when I have dissented with Alan Dershowitz
Speaker 2: and Dean Chamerinsky saying I may be the left of
Speaker 2: you guys. I'm not convinced the Skokie case allow the
Speaker 2: Nazis to march in nineteen You have that weird design
Speaker 2: it right, I know, and those guys are the PUREU
Speaker 2: and you know Durschwitz is part of the case. Here's
Speaker 2: my point is, I think Hamilton might have been right
Speaker 2: until maybe nineteen eighteen. I mean, we can pick a
Speaker 2: lot of arbitrary points in cases, but it's when you
Speaker 2: get to the shankcase I mentioned, they give us the clear,
Speaker 2: clear and resent danger test and all the ones balancing
Speaker 2: tests afterwards that have made a mismash of the First Amendment.
Speaker 2: The nowadays people wake up and said, thank god, we
Speaker 2: have the First Amendment and the rest of the Bill
Speaker 2: of Rights. By the way, the Bill of Rights never
Speaker 2: came up in federal court in the nineteenth century. Why not?
Speaker 2: I think it's I think because at that point Hamilton's
Speaker 2: instinct was people understand the rights, they don't need to
Speaker 2: recur to a written statement. That's where I.
Speaker 3: Think this, and I think it's different actually because Hamilton
Speaker 3: was right because he said, remember in eighty four he says,
Speaker 3: the reason why you don't need to write down the
Speaker 3: rights done is because otherwise you would imply that the
Speaker 3: Federal Garment has power powers. Right yeah, and until right
Speaker 3: until the progress in the New Deal, Congress didn't really
Speaker 3: exercise that much power avocations.
Speaker 1: That's the one thing, too, is never underestimate You hinted
Speaker 1: at it, Steve, but I thought, I think to a
Speaker 1: different purpose, never underestimate how incredibly damaging our Supreme Court
Speaker 1: has been to our understanding of our rights. And that's
Speaker 1: I mean, I don't know that that Hamilton per se
Speaker 1: ever ever envisioned that to be the problem, because he
Speaker 1: seems to you know, to go in the opposite direction.
Speaker 1: But my favorite example of this is what happened during COVID,
Speaker 1: and you actually had that scumbag Roberts on the Supreme
Speaker 1: Court refusing to exercise power, saying, of course you have
Speaker 1: a First Amendment freedom of religion, right to ignore any
Speaker 1: damn executive order from some community health person that you
Speaker 1: can't go to church. Well, they can go to uh
Speaker 1: just well the casinos could be open. I mean that
Speaker 1: that in and of itself. The fact that we listened
Speaker 1: to that idiot have anything to say about what we
Speaker 1: could do during COVID is it To this day it
Speaker 1: makes me so angry.
Speaker 4: I could just scream and you know you shouldn't motives
Speaker 4: to John Roberts and call them a scumbago actually just
Speaker 4: applying standard First Amendment doctrine unfortunately, and it was close,
Speaker 4: it was five to four.
Speaker 3: I think.
Speaker 1: That's my point exactly, John. I don't care what the
Speaker 1: Supreme Court has to say about my risk, Okay, use
Speaker 1: a different.
Speaker 3: One point is that the country does care in the country.
Speaker 1: And that's we have to. They don't have to, and
Speaker 1: I wish they didn't. I wish they didn't care what
Speaker 1: the Supreme Court said. I wish nobody cared. But anyway,
Speaker 1: because you know, we're every article I've been reading on
Speaker 1: birthright citizenship, well that this will be up to the
Speaker 1: Supreme Court to decide whatever UH think about. Let me
Speaker 1: do this one. Let me do it really quick, because
Speaker 1: we're almost out a time. The right to privacy. I
Speaker 1: would argue that if our constitution, who is it in
Speaker 1: the descent in Holmes versus us or excuse me, ow
Speaker 1: instead versus us the descent in there where he said
Speaker 1: that I can't I won't be able to repeat it tonight.
Speaker 1: But it's a beautiful passage where basically, if our Constitution
Speaker 1: means anything, it means that individuals, that citizens have a
Speaker 1: sphere of privacy into which the government may not intrude.
Speaker 1: I believe that in my whole heart. But what did
Speaker 1: the Supreme Court do? They took the emanations and penumbers
Speaker 1: of the Ninth Amendment and the Fourteenth Amendment and the
Speaker 1: Bill of Rights, and they came up with a right
Speaker 1: to privacy that is what only what the Court defines
Speaker 1: it as it is so the opposite of what we
Speaker 1: should be thinking about when we think about the right
Speaker 1: to privacy. It is, in my opinion, a travesty that how.
Speaker 3: Would it otherwise work? Court didn't you didn't have the
Speaker 3: Supreme Court defined the rights. You didn't have the right
Speaker 3: to defend yourself in court based on the path rights.
Speaker 3: What would you do when the government right did things
Speaker 3: like the COVID lockdown or did things like you know, well,
Speaker 3: I don't understand what this world looks like.
Speaker 1: Here's here's another example that maybe helps answer that question.
Speaker 1: In twenty ten, after the passage of Obamacare, how many
Speaker 1: how many seats did Obama losing? Did the Democrats lose
Speaker 1: in Congress? It was a wipeout. Twenty twelve. June of
Speaker 1: twenty twelve, the Supreme Court issues its decision in Sibelia's
Speaker 1: versus and if whatever it is, and you know, it's
Speaker 1: this muddled up, stupid ass decision. This that the other thing. Oh,
Speaker 1: it's the main date is the text blah blah blah whatever.
Speaker 1: But the point of the matter was they found that
Speaker 1: the Affordable Care Act was constitutional. Now, Roberts has a
Speaker 1: bunch of namby pamby blah blah blah in thereabout it's
Speaker 1: up to citizens to decide when the stupid laws are passed,
Speaker 1: and they should you know, the blah blah blah, except
Speaker 1: the world we live in. What was the headline everywhere
Speaker 1: after that Supreme Court finds Affordable Care Act constitutional. Obama
Speaker 1: got on the damn stump and said it everywhere he went,
Speaker 1: even the Supreme Court said it's a great law. And
Speaker 1: he won reelection because he lied about it and the
Speaker 1: Supreme Court was dumb enough to give him something to
Speaker 1: lie about. That's so what happens. If the Supreme Court
Speaker 1: had never gotten involved, the people would have kept voting
Speaker 1: those Democrats out of office and they would have overturned.
Speaker 3: The saying there shouldn't be any judicial review, and the
Speaker 3: Supreme Court no, no, I don't really understand.
Speaker 2: Let me try. Let me try. We're running late on time.
Speaker 2: But the amazing irony of that decision lucreti, it was
Speaker 2: that the dissent that Kennedy signed on to, I think
Speaker 2: he actually wrote it where he said there are I
Speaker 2: think something like their implications to the structure of liberty
Speaker 2: embedded in the Constitution. Ah. This gets to the wider
Speaker 2: point that Walter Burns and others made, which is the
Speaker 2: Supreme Court it's not just deciding cases and controversies. It is,
Speaker 2: as Marshall put it, expounding a constitution. They're telling us
Speaker 2: the meaning of the thing. And that's where Roberts I think,
Speaker 2: by the way, he had the same education you did. John,
Speaker 2: that's the problem.
Speaker 3: Your turning to Anthony Kennedy is the great welter.
Speaker 2: That was natural, right, that was the amazing.
Speaker 1: You just do what I just said, Steve, I have
Speaker 1: no idea what that means.
Speaker 2: Well, outright, I'm trying to be brief, and maybe I
Speaker 2: don't want to take time to explain it. Walter Burns.
Speaker 2: Is big argument against Holmes, against the Supreme Court is
Speaker 2: they don't take seriously their duties to be teacher constitutional
Speaker 2: meaning to citizens. And that's the effect of saying Obamacare's constitutional.
Speaker 2: It's just up to you people to decide it right.
Speaker 2: And changing right one of the things. What does he do?
Speaker 2: He rewrites the law to make it.
Speaker 3: There's nothing after Obamacare that doesn't prevent other parts of
Speaker 3: the government to challenge the decision. And you could say
Speaker 3: that's what Trump's doing now. I mean, I think the
Speaker 3: president has this right with the birthright citizenship. He has
Speaker 3: every right to have the executive branch take a different
Speaker 3: position than the Supreme Court and to try to push
Speaker 3: his powers to advance his constitutional interpretation.
Speaker 1: My point is that at the very you think about
Speaker 1: Lincoln's speech against the dread Scott decision, where he says, yeah, sure,
Speaker 1: the Supreme Court can decide what it wants to who cares.
Speaker 1: They're not the final say on you know they Okay,
Speaker 1: dread Scott will be a slave. That's fine. Nobody's going
Speaker 1: to challenge that. But it doesn't have any impact beyond
Speaker 1: that particular decision. Okay, well, we'll give it a little
Speaker 1: bit of a but we're not going to change the
Speaker 1: laws of the country because the Supreme Court decided some
Speaker 1: stupid thing. I think that's how it ought to be.
Speaker 1: And the problem is what ever, since eighteen fifty seven,
Speaker 1: we've all deferred. Oh, the Supreme Court said it, we
Speaker 1: have to do it. And that's the problem because they've
Speaker 1: been wrong so many times.
Speaker 3: John, I think you didn't have the Supreme Court there interpreting,
Speaker 3: and I disagree. I mean, I disagree the Court quite often.
Speaker 3: I don't think they're perfect. But if they were not
Speaker 3: there defending a written Bill of rights and a written
Speaker 3: reconstruction amendment supplying those bill of rights to states. I
Speaker 3: think individual liberty in the country would be far worse now.
Speaker 3: It would be worse like England, or worse than it
Speaker 3: is today.
Speaker 1: I don't but we don't have time to keep discussing it.
Speaker 1: So when we get you back, John, that'll be the
Speaker 1: first item of business. Okay. I had a student who
Speaker 1: said to me that the problem with the Supreme Court
Speaker 1: is that it took away the people's responsibility to be
Speaker 1: the guardians of their of the Constitution.
Speaker 3: And they didn't take it away that people don't.
Speaker 1: Want it, Steve says, I have to and I'll keep
Speaker 1: it short. I have a whole big list, Steve, but
Speaker 1: I'll keep it short for your sake. The Babylon Bee
Speaker 1: has been busy this week. I will try to keep
Speaker 1: it very short, but it's very difficult. Democracy falls as
Speaker 1: man who received the most votes becomes president. And I
Speaker 1: don't know if you guys happen to be sitting there
Speaker 1: watching the inauguration and it came over. I was watching
Speaker 1: it with my computer on two clump of cells. Dies
Speaker 1: at sixty seven. Do you know what that refers to?
Speaker 2: That's the seal Richards the long time.
Speaker 1: The person died. I thought that one was good. I laughed,
Speaker 1: sad Hunter wondering why no one buying his Why no
Speaker 1: one is buying his paintings anymore? The nation is actually
Speaker 1: impressed that Biden lived through all four years of the presidency.
Speaker 1: And just a little bit about Steve mentioned Elon Musk's
Speaker 1: Hitler No, maybe John mentioned it, Elon Musk's Hitler salute.
Speaker 1: Liberals briefly pause chanting death to Israel to call Elon
Speaker 1: Musk a Nazi. Yeah, right, Yeah. There was a couple
Speaker 1: of good ones that, you know, the the village people
Speaker 1: played at.
Speaker 3: I wish I'd never seen those pictures.
Speaker 2: That was great stuff.
Speaker 1: Yeah, and so one of them was showing that the
Speaker 1: Indian with both arms out in and said journalists horrified
Speaker 1: as village people performed double Hitler salute. The other one
Speaker 1: had something to do with Elizabeth warrened made her peace
Speaker 1: with Trump and was dancing.
Speaker 2: Says Trump can't get along with the first people. Look
Speaker 2: at him dancing with Elizabeth Warren.
Speaker 1: Right, Okay, just two more. The first one nothing to
Speaker 1: do with politics. But you guys travel a lot. I'm
Speaker 1: sure you'll appreciate this. Babylon Bee fashion tip, Ladies, choose
Speaker 1: your rattiest set of pajamas to wear to the airport. Okay,
Speaker 1: final one way to end it announcement the Babylon b
Speaker 1: to shut down, as there will be nothing to make
Speaker 1: fun of during the perfect Trump administration.
Speaker 2: John got any new stuff yet? Or no?
Speaker 3: I mean all I have is always drink your whiskey meat.
Speaker 3: The Brandon line makes no sense anymore. Now Biden's gone,
Speaker 3: so we got to think of something else.
Speaker 2: But I'll tell you, I'm.
Speaker 3: Sure Trump, I'm sure we're going to have lots of material.
Speaker 2: Oh yeah, that's right.
Speaker 3: Shortly, So have you come up with after always drink
Speaker 3: your whiskey meat? Steve, do you have a off for
Speaker 3: us now?
Speaker 2: Yeah? Something that has gotten old? Slavely adapt it is.
Speaker 2: I can't believe how good it feels to say we
Speaker 2: are unburdened by what has been Bye. Everybody see it
Speaker 2: next week?
Speaker 1: Hm.
Speaker 4: I was at the immigration scene, shine and everything.
Speaker 1: Could it be a sin?
Speaker 4: I heard it stop by.
Speaker 1: The immigration man said he doesn't know.
Speaker 4: It becan.
Speaker 1: D immigration man. Can I crossed the line and grace instead?
Speaker 1: Immigration man? I won't show you a line today. I
Speaker 1: can't see it anyway.
Speaker 2: Ricochet joined the conversation.
Speaker 3: MM hm