Judging Freedom - Ask The Judge: A Brief Lesson on Free Speech w/ Q & A

Episode Date: May 3, 2024

Ask The Judge: A Brief Lesson on Free Speech w/ Q & ASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Thank you. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Friday, May 3rd, 2024. It's time for Ask the Judge, but a special edition of Ask the Judge for which many of you have asked, in which I'm going to talk for a couple of minutes about the First Amendment, about the freedom of speech. And then I will take your questions. Many of your questions have lined up already, and many of them are excellent and profound and challenging questions. Some are directly on point and some are on other issues. We'll see where this goes. So when teaching law students, and I taught full-time at Seton Hall Law School in Newark, New Jersey, at Delaware Law School in Wilmington, Delaware, and at Brooklyn Law School in New York

City, one of the ways that you start teaching about the freedom of speech is the following. The First Amendment says that Congress shall make no law abridging the freedom of speech is the following. The First Amendment says that Congress shall make no law abridging the freedom of speech or of the press. If the states ratified an amendment repealing the First Amendment, would we still have the freedom of speech? Now, early on in law school, almost every hand goes up and says, no, no, no, no, no, without the First Amendment, we wouldn't have freedom of speech. Then you begin to address the students on the concept of natural rights, that our rights come from our humanity. And then you go over the wording of the First Amendment and even of the other amendments in the Bill of Rights very carefully with the students. And then they

realize that in these amendments, Congress is not granting freedom. Congress is restrained from interfering with freedom. Well, if Congress is restrained from interfering with freedom, if the government doesn't grant freedom, where does it come from? So listen to the words again carefully. Congress shall make no law abridging the freedom of speech or of the press. Second question is, which is the most important word there? Congress shall make no law abridging the freedom of speech or of the press. The most important word is the, the freedom of speech, because by insisting that the word the precede freedom of speech, James Madison, who authored the First Amendment, was making it clear to the ratifiers, people who would vote to make it part

of the Constitution, and to posterity, his understanding that the freedom of speech pre-existed the government. Well, if it doesn't come from the government, where does it come from? It comes from our humanity. It comes from our natural rights. When Jefferson wrote in the Declaration of Independence that all men are created equal and endowed by their creator with certain inalienable rights, and among these is life, liberty, and the pursuit of happiness, he's recognizing natural rights. He didn't appeal to the British Parliament when he was articulating these rights. He didn't appeal to anything George III, the King of England said. He didn't even appeal to British tradition at the time, which was well understood. There was

more freedom in Great Britain than there was in the colonies. He appealed to the creator, and later on in that opening lines of the Declaration, to nature and to nature's God. This is the concept that we call natural rights. So from all of this, we can argue that the freedom of speech is a natural right. It comes from our humanity. Your right to think as you wish, to say what you think, to publish what you say, to read whatever you want, to publish what you believe in with others or by yourself, quietly or loudly. These are natural rights that come from your humanity, and they exist whether the First Amendment exists or not. That brings us back to the question I put to the law students. So the freedom of speech is both a natural right and a constitutional right because it is protected by the Constitution. I don't want to get into the other parts of the Bill of Rights, but they're the same. Your right to self-defense is a natural human right.

It is also a constitutional right because it's protected by the Second Amendment. When Justice Scalia wrote the definitive opinion called Heller versus District of Columbia, he argued that your right to self-defense is a pre-political right. When I asked him why he didn't say natural right, he said, oh, it sounds too Catholic. I might not have gotten five votes for it. And he's right. It does sound very Catholic. The idea of natural rights was articulated by St. Thomas Aquinas, who died 750 years ago. But you don't have to be Catholic. You don't have to be Christian. You don't even have to believe in God to accept the concept that our rights come from our humanity. We are the highest rational beings on the planet today. And by the exercise of our reason, we can discover the truth, that reason must be unimpeded. And one of the ways we exercise that reason is by thinking, by reading, and by speaking.

So does no law in Congress shall make no law really mean no law? Well, that depends who you ask. If you ask an absolutist like your humble professor tonight, no law means no law. If you ask big government types, they'll think of all kinds of exceptions and speech that can be punished. of May. The House of Representatives voted by overwhelming numbers to define anti-Semitism in such a way that if you repeat certain phrases from the New Testament, you can be declared an anti-Semite. Okay, let them say what they want about me. Ah, but if you're a college professor or a college administrator, or you're a student and the college lets you say this, the college can actually lose federal funds. Now, this is not the law yet. The Senate hasn't voted on its version of this yet. Joe Biden would probably sign it because he likes to curry favor with Prime Minister Netanyahu and his government. But I would think that the first person harmed by this law would challenge it

in a federal court, and the first federal judge that sees this thing will invalidate it. Because Congress shall make no law, abridging the freedom of speech basically means that you decide what to say and what to listen to, and the government has no say in making those decisions because the whole purpose of the First Amendment, this is right out of about two dozen Supreme Court opinions now, is to keep the government out of the business of speech. Okay, it says Congress. What about the courts? What about the president? What about the states? Well, from and after the ratification of the 14th Amendment, Congress shall make no law applies to the states? Well, from and after the ratification of the 14th Amendment, Congress shall make no law applies to the states and their subdivisions, counties,

regional governments, compacts, like the Port Authority of New York and New Jersey is a hybrid government. It's not New Jersey. It's not New York. It's some sort of a creature under the compact clause. Well, that's regulated by the First Amendment as well. And the president is regulated by the First Amendment. Many of you know I'm a graduate of Princeton University, and Woodrow Wilson was once a professor of constitutional law there and the president of Princeton before he was the governor of New Jersey and president of the United States. During World War I, Princeton students who remembered him in order to taunt him went to draft offices in Trenton, New Jersey, that's the capital of New Jersey, about a 25 or 30 minute car ride today, maybe it was longer then,

from the Princeton campus. And what did they do in front of draft offices? They read the Declaration of Independence aloud. The Declaration of Independence, the sheet anchor of our liberty, the document that Congress enacted unanimously, which was the trigger for the American Revolution that was our secession from Great Britain. And Woodrow Wilson sent a flunky from the Justice Department to arrest them. The flunky's name was John Edgar Hoover. Yes, the same one who later called himself J. Edgar Hoover and became the boss of the FBI for 45 years. When he was asked, well, how can you do this? The First Amendment, you can't arrest somebody for reading something out loud, much less the Declaration of Independence. Wilson said, well, the First Amendment only applies to Congress. It doesn't apply to the president. Now, that's wrong on both counts.

First of all, it applies to all government, executive, president, legislative, Congress, judicial, the courts. And now it applies to all levels of government, local, regional, county, state, and federal. If he had said in a constitutional law exam it doesn't apply to the president, well, he would have flunked the exam. And remember, he used to teach constitutional law. Why would he have flunked it? A, the First Amendment applies to him. B, under our system, only Congress can write laws and decide what's a crime, not the president. So that's sort of a philosophical, historical, legal background for the significance of Congress shall make no law abridging the freedom of speech.

I've argued that even though it's not the first freedom, if you read the First Amendment, the first freedom is freedom of religion. It is the most important freedom because without the freedom of speech, we would never have had the American Revolution. According to the late Professor Bernard Balin of Harvard University, I read a great, great book. It's not that long. It's maybe 125 pages called The Ideological Origins of the American Revolution. I encourage you to read it. He reports that after surveying sermons and broadsides and editorials and posters and pamphlets in the era. In 1776, only about one-third of the adult white males in America wanted revolution. About one-third wanted to stay

under the king, and whatever disputes we had with London, they thought would go away. And about one-third, hard to believe, didn't care. Well, by the middle of the revolution, that number of one third in favor of the revolution had gone up to two thirds because the brush fires of freedom were ignited by the exercise of the freedom of speech. It is the linchpin of all freedoms. It is not only necessary for personal happiness that you can say whatever you want. It's necessary for democracy that you can shake your fist in the tyrant's face. You can challenge the government. You can force transparency and you can say this with impunity and without a permission slip from the government and without fear of government reprisal.

One more principle before I go to your questions, and that principle is called chilling. Chilling is what the government does when it gives you second thoughts before you criticize it, that it might do something to you to make your life difficult. Chilling is absolutely prohibited by the First Amendment. Again, prohibited to the president, the Congress, the courts, prohibited to local, state, and federal. No government may engage in chilling. An example of chilling would be sending FBI agents to a public rally to take pictures right in your face as you're being critical of the government. That might not give the students at Columbia or UCLA second thoughts, but it might give a lot of other folks second thoughts as well. So chilling is prohibited as well as the direct interference. Finally, I know I said chilling was the last. The government can't do indirectly what

it is prohibited from doing directly. So the government can't hire other people to interfere, excuse me, with the freedom of speech. Who might it hire? Ah, Facebook, Google, YouTube, TikTok. The government might browbeat them to suppress your speech because the government knows that it can't do it directly. So Congress shall make no law bridging the freedom of speech is very, very broad. And it accords every human being, everybody above the age of reason, the right to say whatever they want without fear of government reprisal. Okay. Longer than I thought it would, but I'm happy to go to your questions. We've preselected some, but those that have come in during my little lecture, we'll look at those as well.

So you can start popping them up, Chris, from John McGuire. Regarding the House of Representatives anti-Semitism bill, did all the members of Congress who voted for passage of the bill violate their oaths of office? Yes, they did. Great question. They violated their oaths of office because every one of them took the same oath I did when I became a state judge in New Jersey, the president did when he became president, a school board janitor takes, and that is fidelity to the Constitution, which includes the First Amendment. Not the Constitution as they want it to be, but the Constitution as the courts have interpreted it. Great question, Mr. McGuire.

From Mousy Brown, HR 6090, speech has made a crime. How long before thought crimes? This H.R. 6090 is the legislation that the House passed yesterday making anti-Semitism the subject for government reprisal. It doesn't make it a crime, but it makes it the subject for governmental reprisal. The next step is thought crimes, Maisie, and that, of course, would be a horrible state of affairs. The last time FBI Director Chris Wray testified before Congress, he revealed that one-third of the FBI is engaged in, you ready for this? Predicting crime. Not solving it, predicting it. Well, how do they do that? They look for your thoughts. And how do they get your thoughts on social media? Some in the public sphere,

some private, because they've hacked into your computer under statutes that let them get away with it. It's reprehensible where we are now, but we're moving towards 1984. I realize 1984 was 40 years ago, but we're moving towards the concept of 1984, an all-knowing totalitarian government right under our noses. Next question from Rupert Fellows. Under HR 6090, the New Testament is anti-Semitic hate speech. How can you swear on the Bible in court now? How can they swear on the Bible when they take their oaths of office? Great question and great observation. Statements made in the New Testament, Matthew, Mark, Luke, and John, the Acts of the Apostles, and St. Paul's letters to the Hebrews, to the Romans, to the Colossians, to the Thessalonians.

All of that is hate speech under this despicable legislation that the House of Representatives passed yesterday. I don't think the Senate's going to pass it, and it is inconceivable to me that a judge would allow it to last. The first judge before whom it's challenged will enjoin its enforcement immediately. From Luca Clemente, there are some who think the Brandenburg v. Ohio case went too far in protecting free speech. I don't share this view. Thank you, Luca. You think that any argument against Brandenburg has merit? I don't. So Brandenburg is a case in which a Ku Klux Klan member by the name of Brandenburg at a Ku Klux Klan rally in Hamilton County, Ohio, not far from Cincinnati, called for revengeance, a word that he made up against blacks and Jews and suggested that we should, that the people listening to him should leave from Hamilton County, Ohio and go to Washington, D.C. and fight the blacks and the Jews and take the government back from them. It's absurd what

he said. He was prosecuted under an Ohio statute that prohibited such speech and he was convicted, upheld in an Ohio appellate court, upheld in the Ohio Supreme Court. He appealed again to the U.S. Supreme Court, reversed unanimously, 1969. And the reversal says this, all innocuous speech, all innocuous speech is absolutely protected. And all speech is innocuous when there is time, time for more speech to challenge it. So if he had said, there's a Black person, there's a Jewish person right there, get them. And the crowd in an unthinking response attacked that person. The speech could be prosecuted. But because he said, do it in Washington, D.C., and he was in Ohio, there was time to challenge what he said. This is a very, very broad definition of First Amendment rights, but it's the definition that we happily live under until Congress starts tinkering with it.

Great question, my friend. From Freedom For Thee, could you explain SCOTUS decision, Terry versus Ohio? Does that decision play into any of the protests related to free speech being stopped during a peaceful event? Well, Terry versus Ohio applies the First Amendment to the states. And Terry versus Ohio says if the police gather information in an illegal way, evidence in a criminal prosecution, it cannot be used to prosecute the case. So the question would be, does Terry versus Ohio apply in the case of the 2,000 people that have been arrested in the United States in the past week for expressing their free speech. Terry versus Ohio would militate against these prosecutions. Good question. Next one. Patrick Jean-Claude, you always send great questions, Patrick. Four years ago,

there was chaos following George Floyd's death and the COVID lockdown. Now pro-Palestine protests are creating chaos all over the country. Can we assume this is done on purpose in an election year? I don't know the answer to that. I just did the Intelligence Community Roundtable with my friends and colleagues Larry Johnson and Ray McGovern. Ray has seen no evidence of agitators from the government. Larry thinks there may very well be agitators from the government on the college campuses in an attempt to rile things up for political purposes. This will come out if any of them is prosecuted. None of them, except those who destroyed property or swung their fists at others, have committed a crime. And there was no violence on any of these campuses until the police arrived. Next question from Robert Brown. Judge, is there any recourse against the administration

of colleges that acted in a way to provoke rather than de-escalate violence between the police and students on their campuses. Yes, there is. Anybody that provokes a crime and then calls in the police to arrest those is guilty of either malfeasance in office or obstruction of justice. If it's a private person as opposed to a public office holder, like an FBI agent, then it's a civil wrong. Then you can sue that person for the harm that was caused by the crime that they provoked and the arrests that they ordered. From Ash M., what does it say about our elected government when a group such as AIPAC or any professed Zionist Biden, Blinken, or BB, as his last quote regarding speech on the U.S. campuses, undermine our First Amendment? Whenever the government punishes speech or whenever the government evaluates the

content of speech and does something from that evaluation or whenever the government chills the exercise of free speech, the government has violated the First Amendment. The problem is that if you are the victim of this, you might not have recourse unless you're prosecuted because of a clause in the Constitution which requires a real case or controversy. So your ox must be gored. You must be prosecuted because of your free speech before you can challenge the government. Otherwise, the Joe Bidens and the Tony Blinkens and their buddies in AIPAC will get away with it.

Next question. From Kareem, regarding freedom of speech, given that the House anti-Semitism bill will likely become law, what recourse do we have short of the Supreme Court? Well, if it does become law, you would have to be harmed by it, and then you could challenge what the government is doing to you before a federal district court judge. That's the trial court. So that's two steps below the Supreme Court. If you're vindicated in the district court, that is, if a district court judge, a trial judge, throws this legislation out, the government might appeal that to a circuit court of appeals. And then whoever loses there would appeal it to the Supreme Court. That process takes three or four years. But again, you can't just go to court and say, I don't like this statute. You have to wait for the government to harm you by using the statute before you can challenge

the statute's constitutionality. We have time for just one or two more, and my voice is starting to crack from Hege. Could you comment on the law teacher named Fisk from UC Berkeley who grabbed a law student who stood up at a dinner party at the professor's house to give an anti-war speech? Was that an assault? Yes and no. It's private property. It's not a college or a university. So Columbia University is private property, but under the laws of the city and the state of New York, the public parts of Columbia University are open to the public, and anybody can come and say whatever they want. But this professor's backyard is private property. And when the professor asked the student to stop, you're ruining my private party here,

and she didn't. And the professor's wife, also a law professor, grabbed the student and threw her out of the property. That's not an assault. That's exercising your right to exclude an intruder from your private property. Just like if you wake up in the middle of the night and there's somebody standing at the foot of your bed with a gun, you can take a gun and blow the person away. You can also physically throw the person out of your house. Not an assault, but the exercise of your private property rights. We'll take one more. From Megajohn F1, honorable judge, can a state enlarge the scope of the First Amendment to protect speech between individuals and companies? That is a great question. And the short answer is yes. In New Jersey, for example, the state Supreme Court has enlarged nearly every aspect of the Bill of Rights. So more personal liberties are protected from state infringement in New Jersey. The state cannot expand these liberties from federal infringement.

Only the federal courts can do that. But the states can expand personal private liberty from interference by state officials, state and local police, state and local authorities. New Jersey is an example of that. This is called making the states a laboratory of liberty, whereby the states experiment with protecting more freedoms in their borders than the feds protect. New Jersey, even though I disagree with much of what New Jersey has done, even though I was part of the system for my years as a Superior Court judge here, has taken the lead in that regard. So next week, thank you very much for

all of this. Thank you for the number of you watching. Thank you for your great and challenging questions. Next week is an odd week, just like when I went to the Vatican. We put all of our shows up front. So you will see all of your favorites, but one, Colonel McGregor on Monday, Colonel McGregor on Tuesday, and then I'm off to lecture on all of this at the University of Milan. Thank you for listening. Thank you for your continued faith in the show. You may know that this show now reaches 10 million of you a month. That's more than any show on Fox Business, any show on MSNBC, any show on CNBC, any show on Newsmax, any show on CNN, all because of you. Thank you, my dear friends. Have a great weekend. We'll see you for 10 shows on Monday and one because somebody wants to sleep late and one on Tuesday. Judge Napolitano for judging freedom. Thanks for watching!