Judging Freedom - Ask The Judge: Viewer Questions LIVE with Judge Nap

Episode Date: December 21, 2023

Ask The Judge: Viewer Questions LIVE with Judge NapSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, December 19th, 2023.

Part one of Ask the Judge. Part two, of course, will be on Friday as it usually is. Why am I doing it today? Well, a lot of our guests have begun to get into the Christmas holiday season mode and are dialing back their generous time with us. And I had a little extra time and I still have a lot of energy. You know, the good Lord didn't give me everything I wanted in life, but he gave me a lot of hair and a lot of energy. And so I thought we would have this additional ask the judge and a lot of you have lined up. So Chris and Sonia have been going through the questions

and guys, I'm ready for the first one there from someone called Think For Yourself. Which nation in the world has the most respect for natural law? That is right up my alley, as you guys know. Natural law is the belief that our rights come from our humanity. This belief goes all the way back to Aristotle, was reinforced by Augustine,

was written down for the first time by Aquinas, was adopted by John Locke, was articulated by Thomas Jefferson in the Declaration of Independence, and was codified into law in the Ninth Amendment by James Madison in the Bill of Rights to the Constitution. It is the principle and the belief and the understanding that our rights come from our humanity. They do not come from the government. Now, this is not theoretical. If our rights come from the government, well, then the government, like a water faucet, can open it up in good times and close it down in bad. If our rights come from our humanity, then the government can't take them away unless we have given up our rights,

waive your rights, you give them up when you violate somebody else's rights. So a bank robber gives up his freedom when he steals the contents of the bank. And as long as he's had a fair trial before a neutral jury and with a neutral judge, stealing somebody else's property is a violation of their natural rights, their right to own the property. So that's just a basic primer on natural rights. My most recent book, and I'm not a book salesman, but my most recent book is called Freedom's Anchor, An Introduction to Natural Law Jurisprudence in American Constitutional History. It's 500 pages. I think it's the best there is as an introduction on natural law for lawyers, for judges, for law students, for lay people that want a good sweeping introduction on natural law.

Now, to the question, which country most respects natural law? It is not the United States of America. Even though everybody that works for the government in the United States, from the president down to a part-time school board janitor, takes an oath to uphold the Constitution. And even though the Constitution articulates natural rights, the United States of America does not defend natural rights. Every president was under the belief and operated as if he could curtail natural rights. That is, interfere with a person's freedom on the basis of an executive command or a statute written by the Congress. Switzerland, Switzerland has the highest respect for natural rights. I know this from my studies and I know this from all the time that I have spent there. I have friends,

a married couple, he is a professor at the University of Zurich Law School, the best law school in Switzerland, one of the top five in Europe. And she is a judge in Switzerland. And we spent a lot of time together on emails, on texting, and in the United States and in Switzerland. So I'm very familiar with their system. There is no country in the world that has better respect for natural rights than Switzerland. So the advantage of natural rights is where they're honored, the government is restrained

because it knows that it cannot interfere with individual liberty without a trial, without proof of guilt, without guilty behavior on the part of the person that they want to interfere. The disadvantage to natural law is it's not written down in any one place. One person's natural law is another person's libertinism. So for the most part, the first eight amendments to the Constitution of the United States articulate natural rights. But St. Thomas Aquinas, whose 700 and the 750th anniversary of whose death will be celebrated by the Vatican this March, and I've been asked to participate in that celebration with a lecture on natural rights, said that natural law is like peeling an onion. Every time you peel some off, you see there's more in there. So modern day rights like the right to choose your sexual partner, freedom of travel,

these are not rights that were articulated 500 years ago because the government didn't really interfere with them. Now when the government does interfere with them, we articulate them. Sometimes natural rights have funny names. I once had a dispute, a public dispute, an academic dispute with my late great friend Justice Antonin Scalia, who insisted on calling natural rights by another name because he thought that natural law and natural rights sounded too Catholic. Well, it's not Catholic. You don't have to be Catholic. You don't have to be Christian. You don't have to even believe in God in order to accept natural rights. Traditionalist Judeo-Christian belief is that our rights come from our humanity and our humanity is a gift from God. That as God is perfectly free, we are

perfectly free and he gave us this freedom. But if you don't believe in God, you as God is perfectly free, we are perfectly free, and he gave us this freedom. But if you don't believe in God, you can accept the idea that human beings are the highest rational beings on the planet, and we can rationalize the fact that we are entitled to freedom. So you don't need to be a theist, a believer in God in the traditional sense or even in a non-traditional sense to accept natural rights. Okay, probably a little bit more than you asked for, but it is, that subject is close to my heart. Whatever is next, Chris. From John McGuire. Good Lord.

One of my dearest friends, he's no longer with us, was a priest named John Patrick McGuire, for whose soul I pray every day. Great name. Thanks, Your Honor. You, the Judging Freedom staff, and the array of insightful, informative guests do us all tremendous service providing honest reporting with a moral imperative. Well, thank you, John McGuire. We do our best. A lot of people say to me, Judge, you seem happier than when you're at Fox.

Well, I have more freedom than when I was at Fox. I get to say what I want, when I want to say it, how I want to say it. And my job is to bring a moral perspective and a moral challenge to government. And that gets back to the first question, natural rights. Does the government have the right to kill? Generally, no. It can pull the trigger before somebody else pulls the trigger, but that's about the only time it has the right to kill. You wouldn't know that to pick up the newspapers today. All governments, all presidents think they have the right to kill. So I enjoy John McGuire making that challenge, whether the challenge stems from my understanding of natural law

or whether challenge stems from my understanding of the Constitution. And thank you for your flattering comments. I'll give all the credit to the staff and none to me. I am their puppet. They tell me when to go on and they make all of this work. What about the inflammatory propaganda spewing nonstop from Israel and being regurgitated by the United States mainstream media? Are there deliberate propaganda campaigns, evidence of complicity, and thus also war crime? A great question. In some cases, I believe mainstream media is complicit in the government's misbehavior. And I'll name a name for you, the Washington Post. It is well known in journalistic circles and political circles and constitutional law circles in the intelligence community circles that the Washington Post has

been a mouthpiece for the U.S. intelligence community, particularly the CIA. And the CIA wants information out there, even information damaging to the president, even sometimes information damaging to itself, sometimes you want to get bad information about yourself out there before somebody else does, the CIA goes to the Washington Post. So if mainstream media is knowingly reporting false information in order to fortify the government, and if the government is engaged in war crimes, you could make the argument that media is involved in war crimes. I wouldn't make that argument because the contrary argument is the freedom of speech. And the freedom of speech cuts both ways. It allows the media to say whatever they

want about the government, even whatever they want about the government, even if they're supporting the government, even if what they are saying about the government they know is wrong, they have the freedom of speech. So as much as I love the freedom of speech that I have on judging freedom and that Colonel McGregor has and Scott Ritter has and the great Max Blumenthal has and Glenn Greenwald and Tucker Carlson and those of us who, and Tom Woods, who challenge orthodoxy. The flip side of that is mainstream media has the freedom of speech to support orthodoxy, to support the elites, to support the government, even when they know it's wrong. So should mainstream media be prosecuted when they support war crimes? Absolutely not. A war crime is spending money and providing resources to violate international norms, which usually results in the killing of individuals. Can you stand on the sidelines and cheer? It's repellent,

but the First Amendment says, yes, you can. Next question, guys. Diego Macau, I recognize the name. You have, one second, you have written to us before, Judge, once a president signs a bill into law, where does that document actually go? Is it stored somewhere? Is there a repository with all bills somewhere going back to Washington? You mean George Washington? The short answer to that question is the United States archives. So you can go to the archives and see the actual Declaration of Independence. They signed three of them.

You can see the actual Constitution of the United States. You can see legislation that Joe Biden signed into law last week of people that want to go. But once you get in, you'll find a very helpful, neutral, apolitical staff. They'll find almost anything you want. I once went there and I looked up the admissions documents for my three grandparents who came here from Southern Italy through Ellis Island, and I found them. And this was before everything was on the internet. So it's a lot easier to find it now. Next question. From Alibi Ranch. Boy, that's an interesting name. Question, is so-called hate speech protected by the First Amendment? The short answer is yes. The shorter and the longer answer is all speech is protected by the First Amendment. So the leading cases, you've heard me talk about this case called Brandenburg versus Ohio.

In Brandenburg versus Ohio, Clarence Brandenburg, a reprehensible individual, a Ku Klux Klan leader in Hamilton County, Ohio, gave a terrible speech attacking African Americans and attacking the Jewish people and threatening violence against them. It was a classic example of hate speech and it was a classic example of violence. And Mr. Brandenburg was convicted in an Ohio state court of something called criminal syndicalism, a fancy phrase, an old phrase at the time the statute was written, basically meaning encouraging crime and hatred. And that conviction was upheld by an Ohio appellate court, and it was upheld by the Ohio Supreme Court. Actually, the Ohio Supreme Court refused to hear the appeal. The Supreme Court of the United States heard the appeal and reversed his conviction nine to nothing, and in doing so gave us the modern, this is 1969,

the modern iteration of free speech. And it's a very simple one-liner. Here it is. All innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to challenge it. So even though Clarence Brandenburg called for violence, violence which never actually happened in this case, because there was time for others to challenge his call for violence before any violence happened, the speech is protected. So if I'm

standing in front of a crowd and Hillary Clinton walks by and the crowd has pitchforks in their hands and I say, there's Hillary, let's get her, and people go after her with the pitchforks, that speech is not protected because there is no time for more speech to challenge it. But if I say, Hillary, I'm giving an absurd example, so you'll remember it. When I taught law school, I would give ridiculous examples, and then they'd be regurgitated back to me during the exams. I'm going, okay, it worked. I wanted them to remember this example, so I made it ridiculous. But if I say, Hillary's coming, get your pitchforks out and we'll get her. That speech is protected because there is time before she arrives for more people to challenge the speech.

Let's bring this up to date. If somebody's on the Columbia University or Princeton University campus and says, from the river to the sea, Palestine shall be. Absolutely protected. From the river to the sea, all of Israel shall be. Absolutely protected. Kill the Palestinians or kill the Jews. Absolutely protected. As horrific as those words are, because there is time for more speech to challenge, rebut, and neutralize that speech. That's the lesson of Brandenburg versus Ohio. If you are a free speech absolutist like I am, you love the case. Next one.

From Mega John One, Judge Knapp, can U.S. weapons manufacturers be sued in U.S. courts for complicity or conspiracy to commit war crimes? Good question. The short answer is no. Once the United States government, well, let me explain it. So when Joe Biden says we are giving Israel or we are selling Israel or we are giving Ukraine or selling to Ukraine $100 million worth of goods, the U.S. government is not the seller. The U.S. government is authorizing an arms manufacturer to sell it. Or if the U.S. government owns the goods, the U.S. government is giving them to Israel and then ordering, or Ukraine, and then ordering from an arms manufacturer equipment to replace what we have given away. So the act of giving it or the act of authorizing it to be sold,

sometimes the arms manufacturer will sell it directly to the foreign government and the U.S. government will pay for it or will reimburse the cost of it. However that happens, there's an immunity built into the relationship there. So the federal government immunizes itself and the arms dealers with which it deals from the consequences of the use of those arms by foreign government? Okay, I could have answered that a little bit more directly, but that's the short and direct answer. Good question, Megajohn. From Alejandro Nieves, Scott Ritter and McGregor face-to-face. I rarely went face-to-face in my 24 years and 14,500 appearances at Fox, and I never do at Newsmax. I just think you get a clearer explanation of the law from me when there isn't someone there nudging or challenging me. But I will tell you

this, we are thinking of a town hall, and I'm not sure how we'll do it. I'd love a town hall in person and with an audience. That would be Grand Slam and the bottom of the ninth of the seventh game of the World Series. But we may have to do it by Zoom. However we do it, you'll all be invited to watch. And if we do, it will include all of our heavy hitters, not just Colonel McGregor and Scott Ritter. A word about each of them. They are both brilliant, gifted, and courageous. Like I, they make a lot of enemies in the establishment of what they say. They don't lose a wink of sleep over it, and I love them for it. From Stefan Vale or Stefan Vale, Judge Napolitano for SCOTUS. Oh, well, I was up for it twice, and it didn't happen, and I might be a little long in the tooth,

but you never know. My mother's 98. This will be her 99th Christmas And she's in great shape If she were here she'd be dancing But thank you Thank you for your thoughts Mega John F1 again Did you watch the Beatles live On the Ed Sullivan show In February of 1964

I sure did I was 13 and a half years old And and it was a moment of triumph. Now, in fairness to you, I'm not a Beatles fan. I have nothing against them, but since my infancy, I have loved opera and Beethoven and Mozart and Rachmaninoff, but who could have missed that historic moment? And if every once in a while you download it from Netflix or wherever you can get it today, it's a joy to watch. But thank you for that. Got a very, very normal blue collar Italian American youth in northern New Jersey. From Andrew L., will you interview RFK?

Please get his head right on Israel because he is good on everything else. Andrew L., I could not agree with you more. Bobby is a friend of mine through his brother, Doug, with whom I was privileged to work for many years at Fox. Doug Kennedy is the outlier of the Klan because Doug is the Kennedy who's the libertarian. He doesn't mind me saying this. Doug is Bobby's younger brother. I did interview Bobby once about a year ago. He and I text each other often about Israel. We do disagree, as you know, but I would love to have Bobby back on. I think Bobby stands for a level of individual freedom and governmental restraint unknown in the modern era, even unknown under Ronald Reagan. And I think Bobby's going to have an outsized influence. I don't think he's going to get

elected president, but I think he's going to have an outsized influence in the 2024 election. From Sherpa Sherpa, Judge, can guilty verdicts in the many Trump trials be applied as precedent against Obama, Bush, and even Biden crimes? Okay, a couple of basics. The statute of limitations on federal crimes is five years ago with the exception of certain tax crimes and certain unusual circumstances involving taxes, it's too late to prosecute. Second, can a guilty plea be a precedent? No. A guilty plea is unique to that case. It doesn't establish a precedent. A precedent is an explanation of a standard of law or a value judgment underlying the law that other judges will rely on. So precedent usually comes from appellate courts when they have either upheld or overruled but explained what the law is. It is almost unheard

of for something that a trial court did to become precedent unless that thing that the trial court did was challenged in an appellate court and the appellate court upheld it or reversed it, then the reversal would become the precedent. Judges like precedent because it explains what the law is. So you walk in the courtroom, you shouldn't be blind. You should know what the law is and you know what it is by looking it up, or your lawyer does, before you get in the courtroom and the lawyer looks for the precedent. Occasionally, you have a precedent-setting case, meaning the precedent will be made or will be changed. Like, can the president of the United States,

can a former president of the United States of America be charged criminally for alleged crimes committed while he was in the White House? There's no case on that. So this will be precedent setting, however the courts rule. The trial judge has ruled, yes, he can be prosecuted. Otherwise he could kill somebody

while he's president with impunity. So clearly, the doctrine on immunity doesn't protect him once he leaves. It only protects him while he's there so that the courts are not interfering with his exercise of the presidential function. That has been appealed to the Supreme Court of the United States. And however the Supreme Court rules, that will be a precedent. Okay, we'll take one more. Marte Rizos Tejedor, watching from Philippines. God bless you, sir, Judge Napolitano. God bless you too, Marte, all the way from the Philippines. So Merry Christmas, everyone. I'm thrilled that so many of you joined on a Tuesday morning. We'll do it again Friday afternoon, same place, usual time, late in the day, of an understanding of peace and morality, and of a State Department official, all to our camera. He'll be here at 2 o'clock this afternoon and the rest of our crew at 2 o'clock Eastern for the rest of the week.

Judge Napolitano, thank you for watching. Judge Napolitano for Judging Freedom. We'll see you next time. online 24-7 and monthly start dates, WGU offers maximum flexibility so you can focus on your future. Learn more at wgu.edu.