Judging Freedom - Disney v DeSantis_ Gun Control_ SCOTUS ethics

Episode Date: April 26, 2023

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following which the great Colonel Doug McGregor at three o'clock eastern. So there's about two or three pieces of legislation introduced in the Senate and the House, intending to bring the justices of the Supreme Court under the umbrella of the same ethics rules that govern all other judges in the federal judiciary. So you understand it. Your humble correspondent was a state judge. New Jersey is one of three states that offers lifetime tenure to state judges. You have to retire on your 70th birthday, and then you come back at a different salary rate the day after your 70th birthday. But effectively, the appointment is for life. In return for that, you agree to give up a lot of things,

some of which is the freedom of speech. You can't contribute to political campaigns. You can't stand outside of your own courthouse and advocate for a political outcome or even a legal outcome in another case. The federal system is comparable. Different rules, but basically the same thing, to keep judges so that they not only are neutral, but appear to be neutral. When it turned out that Justice Clarence Thomas was the beneficiary of very lavish, high-end, truly first-class vacations by a longtime personal friend of his. People in the Congress, usually liberal Democrats that oppose his rulings, came up with proposals to restrain Supreme Court justices from doing this. Now, why would they have to restrain Supreme Court justices? Well, the rules that govern all federal jurists do not apply to the nine Supreme Court justices. So if Justice Thomas

were a circuit court judge, which is what he was before he was put on the Supreme Court by George H.W. Bush, the Circuit Court of Appeals is the intermediate appellate court between the federal trial courts, called the district court, and the Supreme Court. So it's a three-step process. It's the same in most states. Delaware only has two, trial court and Supreme. The other states have three. If he was still in the circuit court, the intermediate trial court, he would have to have reported that, those benefits, the fair market value of them. Doesn't mean he can't accept them, just means he has to tell the world that he received them so that if anybody has a case before him that his benefactor is even marginally involved with, they would point it out to him and he would recuse himself

from the case. That requirement does not apply to members of the Supreme Court when the gift is hospitality. So if the gift were a car, a house, a set of valuable books, golf clubs, the justice would have to report it. But the gift instead was private jet flights to five-star locations, all the bills paid at five-star locations, private yacht trips to five-star locations, all the bills paid there under rules that govern just the members of the Supreme Court because it was hospitality. It didn't have to be reported. Justice Scalia was once involved in a case like this, except there his benefactor was the government itself. So his friend, Vice President Cheney said, I see you're going on a hunting trip. I'm going on the same hunting trip. Do you want to fly from D.C. down to Houston with me?

And Justice Scalia got on a government jet, Air Force Two. It didn't cost the government anything because the flight was going that distance. There was just one more person on it or two. I think Mrs. Scalia may have been with him. And they flew to the hunting trip, and then he and Mrs. Scalia paid their own way on a commercial flight back. He did not report it when it was revealed. He made a long, typical Scalia-esque 21-page scholarly defense of what he did, saying it didn't cost the government anything. It was a government jet. I didn't think I had to report it, but here's the report. Okay,

you get the background. So now the Congress is considering forcing Supreme Court justices to abide by the same rules that apply to federal judges. Here's the problem. The rules that apply to federal judges are imposed upon them by the Supreme Court, not by Congress. Why? Because the court is a separate branch of the government. And just as Congress writes its own rules that regulate the House rights rules that regulate members of the House, the Senate writes rules that regulate members of the Senate, the Supreme Court writes rules that regulate all federal jurists. The Congress doesn't do that. So if some of these bills become law, which require the court to set up committees and have committees evaluate the cost and the committees decide whether the cost has to be revealed, I don't know that it's

going to pass constitutional muster. You're basically going to have Congress telling the Supreme Court what to do and the Supreme Court invalidating it as unconstitutional. Then we sort of have what people like to say is a constitutional crisis when we have a standoff between two branches of government, Congress and the court. Typically, Congress writes the laws and the court interprets them. If the court interprets a law as unconstitutional, that's the end of it. The only way to get around that would be to amend the Constitution, which I don't think is likely in this case. Is there a compromise? Will the

Supreme Court on its own decide that the rules that apply, there's about a thousand federal judges, trial court and circuit court. Will the rules that apply to the other thousand apply to the nine? Don't know the answer to that. Don't know where this is going to go. My guess is that there'll be some sort of a compromise that the Supreme Court will take up. But a push comes to shove if the Congress tries to force mechanisms on the Supreme Court, a committee to do this, an outside group to do that, judges below the Supreme Court evaluating the behavior of justices on the Supreme Court. I think the Supreme Court's going to invalidate it, not because they don't like it, but because it violates the separation of powers. The Congress can't tell the courts what to do. Yesterday, there was great jubilation in the Statehouse of the State of Washington

as Governor Jay Bybee signed three gun control laws, laws profoundly violative of the Second Amendment, one of which banned assault weapons immediately from the moment that he signed it. And it defines assault weapons as automatic rifles. Well, excuse me, excuse me, semi-automatic rifle. An automatic rifle is that old-fashioned from the movies machine gun where you hold the trigger and all the bullets come out. That's been unlawful in the United States since 1934. The police have them. The military has them. They have been unlawful, and that has not been challenged since 1934. A semi-automatic rifle is one where when you pull the trigger and the round comes out, the next round is automatically put in place for you to pull it again.

You don't have to do anything. Semi-automatic. You need to pull the trigger for it to come out, but you don't need to do anything else. So they have declared that an assault weapon. These are rifles of which hundreds of millions are owned in the United States. These are even lawful in New Jersey, for gosh sakes, the most repressive state in the union for the Second Amendment. I'm convinced that this is unconstitutional, uh, because, uh, the right to keep and bear arms includes according to justice Scalia in the Heller decision, 2005,

the same level, uh, of machinery that the bad guys have. They all have these semi-automatic rifles, and that the government has. Governor Bybee himself, as he signed this, was being protected by Washington State Police who were carrying the very weapons that the governor was purporting to make illegal. So you can see how this is unconstitutional. The legislature of a very liberal state, a governor of a very liberal state, have decided that a class of weapons should be made unlawful to manufacture, to transport, and to own. What about people that already own them? I don't know what the statute says about that. But because it interferes materially with the right to keep their arms, it's unconstitutional. It'll be invalidated as soon as it's challenged. And it ought to be challenged today. There's still plenty of time

to file that challenge in a federal court in the state of Washington because it defies the Supreme Court's three most recent decisions on the right to keep and bear arms. That's the Heller case, the McDonald case, and the Bruin case, all of which say the right to keep them bare arms, the traditional arms that have traditionally been owned and carried by Americans, and semi-automatic weapons have been carried by Americans for the past 100 years, are lawful and cannot be interfered with in this country. Theory of interfering with handguns is you can hide a handgun on your clothing and your victim wouldn't know you have it. There's no such theory, of course, with these semi-automatic rifles because you can't hide it. You have to carry it out in the open. Some of them do collapse, but these are the ones that Secret Service, who protect high-ranking federal officials,

and state police that protect high-ranking state officials carry. But still, when you open up, it's a full-length rifle. The advantage of it is it's powerful and it's accurate. The longer the barrel, the more accurate the aim. I don't think the governor and his colleagues in the state of Washington have the remotest idea of what they are doing for the right of people in that state to protect themselves and the right of people in that state to exercise a natural right to defend yourself using the same modern means that the bad guys do and that the government does. Remember, you might be defending yourself against the government. I don't think they have the remotest idea that these are natural rights prohibited from interference by the Second Amendment. The Michigan School District

recently banned students from wearing a t-shirt that says, let's go, Brandon. You know, I heard this let's go, Brandon thing. I didn't know what the heck it was. I had to ask a number of people, including my very smart producer, Gary Villapiano, who often explains these things to me. So this fellow, Brandon, I don't remember his last name, won a race, a NASCAR race, and was being interviewed by a very attractive female sports reporter. And in the background,

the crowds were chanting something very negative about Joe Biden, basically F plus U and Biden, only they didn't say it the way I said. They set out the words, and it was almost drowning out her efforts to interview him. And she said, do you hear that? And he goes, yeah, they're saying, let's go, Brandon. And of course, everybody laughed. That's what they weren't saying, and his name is Brandon. So this let's go Brandon has become a very popular and clean way to say the F word with respect to Joe Biden. That's the background. So some kids in middle school show up with a t-shirt or t-shirts or sweatshirts that say, let's go Brandon. And the school bans them from wearing it.

And now their parents have filed a lawsuit against the school. So we have a couple of cases, one of which says if the free speech of the students is disruptive to the school or suggesting a criminal act, then the school can ban it. But if the free speech of the students is being critical of politics, is being critical of the government, if it's political speech, then the school cannot punish it because of its content. The school could only punish it if the speech disrupts the school. There's no evidence that this speech disrupts the school because the school disbanded, the school made the shirts illegal before anybody could even see them. So there was no opportunity for them to gauge whether or not there's any disruption in the

school. But basically, you have school administrators and teachers saying they don't like the content of Let's Go, Brandon, and therefore they're going to suppress it. Do students, do young people have the freedom of speech? The short answer is yes. The longer answer is yes, as long as the exercise of that speech does not disrupt the school's core mission, which is to deliver education. If the speech disrupts the core mission, then the school can limit it in time, place, and manner or ban it from the

school property. But without a demonstration of that disruption of the core mission of the school, the students have the same freedom of speech rights as the rest of us. I hope this litigation prevails, and I hope the school ends up paying the legal bills of the parents who brought the litigation, because you parents are teaching your children a lesson on the freedom of speech, which the schools that your taxpayer dollars fund, here we go again, government schools suppressing ideas they hate, which the schools that your taxpayer dollars fund are failing to do. Disney is suing Governor Ron DeSantis of Florida, and this is also a free speech case. Disney is arguing that the reason the governor has pushed for and signed legislation to disrupt Disney's relationship with the state of Florida and with local officials in Florida where Disney is. And by the way, Disney employs 80,000 people, second largest employer in the state.

The only one larger, I believe, is the Publix supermarket chain. Disney employs more people than the government in Florida employs. Why are you messing with this, Ron DeSantis? Well, according to Disney, it's because Disney employees were critical of Governor DeSantis with the Don't Say Gay Bill. The Don't Say Gay Bill, what it really did was to prevent public government school teachers from teaching children about sexual orientation, saying things like what they must say in New Jersey. Oh, Susie, you can be a boy without a penis. Johnny, you can be a girl with a penis. That's what they say to seven-year-olds in New Jersey, as repellent and disgusting as that is. That's what government teachers

are required to say in New Jersey. Governor DeSantis and the legislature in Florida prohibited them from saying that in Florida. People that didn't like it called it, don't say gay. I've described it as fairly as I can. I think the legislation is warranted. I don't think public schools, government schools should have anything to do with teaching about sex and gender orientation, particularly not at that age. But I also think that Disney's people can criticize this to their heart's content, and the government shouldn't be punishing the corporation because of what its employees say. Even if Disney as a company decided to exercise the freedom of speech, a right that it has under current Supreme Court case law, I believe the freedom of speech is a natural right, and only individuals have it,

but that's not what the court says. The court says governments and corporations have the freedom of speech. And if they do, then the government can't punish it. That's the litigation filed against Governor DeSantis this morning in a federal court in Florida prediction. This will either be settled or the governor will lose and Disney will win. And finally, we have some interesting tape for you. Columbia Journalism School had a three-day conference on the First Amendment and the freedom of speech. And at this conference, members of the audience were asked to make their own comments to the panel. The panel consisted of the executive editor of the New York Times and other publications. I think the Washington Post was there. And I think one of

the networks, either MSNBC, CNBC, or CNN was there. It was a liberal group, but they were well-regarded executive editors of well-established media entities when the following happened in the audience. Now, the audience was given a chance to speak and you had to get on line to speak and a very active, articulate, passionate young man jumped to the head of the line and said this. Shouldn't we be talking about the Nord Stream since that's the biggest story of the century? And you guys, you know, I mean, you have the executive editor of the New York Times there who came out with a phony story to try and block Seymour Hersh. It just all of you are executive editors of papers that broke Pentagon, My Lai, Watergate? Is this the same papers or not?

I mean, is there anything you've gotten right in the last 20 years? Or am I mistaken about that? Iraq? Wrong. Syria? Wrong. Russiagate? Really wrong. Okay, I mean, the list goes on and on. So will you at least say something either about nordstrom or ukraine or the fact that zelensky brought us to the verge of world war three and the only reason we knew about that was through leaks can you let them go ahead it's a free speech event right you guys are the press well i just want to hear what they have to say go ahead I'm done. All right. It's hard for us to determine whether or not he disrupted, whether he jumped online. But boy, everything he said was true. The media just doesn't want to be interested in the truth. It's just interested in its spin and its version

on things. I don't know who this young man was. If he was a heckler, if he was interrupting the panel, I cannot approve of that. The Supreme Court has condemned the heckler's veto, the idea that when the heckler disrupts the speaker, that the heckler's speech is more protected than the speaker. No, he was there to listen. He did wait, as I understand it, until it was time for audience members to speak. He did jump online, so he didn't wait his turn. He didn't really ask a question. He made a very strong and passionate speech, but everything he said was true, and we thought you'd appreciate hearing it. We'll follow the story. We'll find out who he is.

Maybe we'll get him on the show and we'll find out if he changed the minds of anybody on that panel. But in terms of the essence of what he was saying, he was correct. The New York Times suppressed the Nord Stream Pipeline reporting of Cy Hirsch because he embarrassed the New York Times

by getting to the truth before they did. The New York Times just shows one side on the Ukrainian war and doesn't even want to consider the fact that Zelensky may be dragging us into World War III, on and on and on and on and on. So young man, whoever you are, reach out to us here at Judging Freedom. We'll put you on. We'll have a nice, serious conversation about it because I can see from those of you that are writing to me as I'm speaking, you appreciate what he said. More as we get it. Colonel McGregor at three o'clock today, Eastern. And the guy you all love to hate, Jack Devine at four o'clock Eastern. Judge Napolitano for judging freedom.