Judging Freedom - Banning Tik Tok_

Episode Date: December 14, 2022

#tiktokSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, December 14 communists. As Yogi Berra once said, when he learned the mayor of Dublin was a Jew, only in America. I don't know if he said it. It's one of those apocryphal things he has alleged to have said, like out there it gets late early when he's talking about shadows in Yankee Stadium. However, TikTok is owned by ByteDance, and ByteDance is either owned or controlled by everything that owns or controls anything of value in China, except for the few people that they've allowed to engage in private enterprise, and that's the Chinese Communist Party. This, of course, has resulted in a lot of Republicans wanting to suppress TikTok and put it out of business. The governor of North Dakota, Kristi Noem, former member oflause of the Constitution, only Congress can ban the flow of goods or services over state lines. Another issue for another time. Congress has, of course, grossly abused that authority. But the reason I bring this to your attention today is because for the first time, either last night or this morning, Democratic members of the House have begun to talk about banning TikTok, arguing that it's NSA, which spies on Americans? Why don't they ban the FBI, which spies on Americans? Why don't they ban the DEA, which spies on Americans?

Go to judgenap.com or go to lewrockwell.com or townhall.com or washingtontimes.com tomorrow, and you'll see my column that comes out at midnight tonight called Holes in the Constitution. It's all about the federal government spying on Americans and the tricks that your and my federal government plays in order to get away with it. So these members of Congress that want to ban TikTok, I like TikTok. They take my what I say and my producer Gary condenses it into 90 second clips. We run it. People do duets with me. They make fun of me. They like me. They praise me. They mock me. It increases my numbers. I know I'm kind of old for TikTok, but I enjoy it and I hope it stays. To get serious for a minute, can the Congress ban TikTok? An interesting question.

Why? Because TikTok is commerce and Congress can regulate commerce and Congress can ban the movement of goods and services and commerce. But Congress has never banned the movement of thoughts and ideas on the internet because thoughts and ideas are protected by, you got it, the First Amendment. So you have two portions of the Constitution clashing. The Commerce Clause, which says Congress can regulate interstate commerce and international commerce, and the First Amendment, which says Congress shall make no law abridging the freedom of speech. Very interesting to see how the courts

address it. What happens when the two issues clash? Well, the First Amendment was written after the Commerce Clause, so the First Amendment would presumably trump lowercase t, the Commerce Clause, meaning Congress could make it expensive to send newspapers over interstate lines, but it can't ban them. It certainly can't ban them because of the content of what the newspapers are saying. Congress could tax TikTok, but the tax couldn't be so high that nobody wanted to use it. So my guess is that this congressional effort to ban TikTok, just like the state efforts to ban TikTok, will be invalidated in the courts. Now what has TikTok done to me? Okay, when Stuart Rhodes, the head of the Proud Boys, was indicted and charged with sedition and convicted. Sedition is a

conspiracy to overthrow the government of the United States. Rhodes was indicted with four other people. So five people were accused of a conspiracy, an agreement to overthrow the government of the United States. I made on air the same argument that Rhodes' lawyers made to the federal judge to whom the case was assigned. And that is, when a conspiracy is impossible to perform, to perfect. The government has no business prosecuting it. The judge rejected that. That's not the law. The law is that two or more people can conspire to overthrow the government, even though it's impossible for two people alone to overthrow the government if they conspired and one of them took at least one step in furtherance of the

conspiracy, they can be prosecuted. Well, I made the defense argument on air to you and Gary, my producer, cut it and ran it on TikTok. And they said, Judge Napolitano, you're banned for five days because by defending this guy, Stuart Rhodes, you're encouraging violence. Well, that is nonsense. I was not encouraging violence. I have never encouraged violence in my life. I was merely making what I thought was an astute legal argument, the same one his lawyers made and which failed. And by five days, so we were back five days after they shut me off. I still defend TikTok as a means of communication, funny communication and profound communication, hilarious slapstick goofball communication, serious communication, communication where anybody can say anything they want about me, and I love it. Congress often does things that it knows are unconstitutional, and it does them because it wants to please the crowds at home because the Congress couldn't give a damn about

the Constitution. You and I do. Or as we we get it judge napolitano for judging freedom