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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, October 24th, 2022.
It's a little after three o'clock in the afternoon on a rainy, dreary day here on the east coast of the United States.
Down in New Orleans, Louisiana, however, where I believe the sun is shining,
an interesting case is making its way through the courts. This is a lawsuit by the Attorney General
of Louisiana against the federal government and against big tech. And the argument is
that big tech and the federal government are in bed with each other and that much of the censoring
of free speech on big tech has been done by big tech at the request of the federal government.
Now, a little bit of background here, and then I'll tell you why it's newsworthy today. It's
newsworthy today because two people, I'm going to hold their names for a few minutes, have been
ordered by a
federal judge to give testimony in this case, even though they resisted doing so. So big tech,
you know, Facebook, Google, YouTube, Twitter, they own bulletin boards, electronic bulletin boards,
and they can decide what they want to put on their own bulletin boards
if they don't like what what I say they can take me off they haven't I've had my wrist slapped a
few times by TikTok of course I had my wrist slapped a few times by Fox in the 24 years that
I worked there but Fox has the right to put in front of cameras whoever they want, and TikTok and YouTube and Facebook and Twitter have
the right to post whomever they want. The problem arises when a private entity does the government's
bidding. Here's why. The First Amendment prohibits the government from deciding who is allowed to
speak based on the content of their speech.
So the government could prevent you from making a speech in the middle of a courtroom,
in the middle of a trial, because you're disrupting a government function.
However, they have to give you an alternate venue for that speech.
They can prevent you from using a bullhorn in a residential neighborhood
to give a political
speech at three in the morning, but they have to give you an alternate venue for that kind of
speech. But they can never stop you from speaking because of the content of your speech. That would
be an exquisite, egregious, direct violation of the First Amendment. They can only stop you because
of the time, place, and manner. And then, as I said, they have to give you another time,
another place, and another manner comparable in reach to the one from which they stopped you.
So that's the law of the land, and it's been the law of the land in the United States in most of
the post-World War II era, certainly since the 1960s,
when there was a little bit of a judicial revolution on the Warren Court, and all the
cases began falling in favor of the freedom of speech. But what happens if big tech is intertwined
with the government, so that big tech is doing the government's bidding. Aha, when that happens
and you have been taken off air and you can prove it, you can get a judge to determine that big tech
is engaged in, here's the technical legal phrase, state action. Doesn't mean an action by a state,
it means an action by a government, but they call it state action. If big tech engages in state action, that means that big tech and the government are in such
a symbiotic relationship. Look at my fingers intertwined with each other. A symbiotic
relationship that one, that each is benefiting the other. And when big tech does something,
you don't know if they're doing it on their own or
because the government wants them to. If a court finds that, then the court will impose the First
Amendment restrictions on big tech, which will prevent it from sanctioning speech because of
the content of the speech. So that's the purpose of this litigation in Louisiana. I applaud this litigation.
I'm generally not in favor of attorneys general going around and willy-nilly suing people at the
government expense. But this is a profound lawsuit aimed at finding out if we've all been
bamboozled in this country. If when Mark Zuckerberg says it's an algorithm that kept Bill O'Reilly or Donald
Trump off, and it's not an algorithm, it's the Biden administration asking them to keep O'Reilly
or Trump off. I'm just using O'Reilly and Trump as examples of controversial people who from time
to time have been sanctioned. And Zuckerberg, and I'm just using him as an example, I'm not
saying he personally is involved, but he and his people are doing the government's bidding.
Then they are doing what the government can't do, and the restraints that the First Amendment
imposes on the government will be imposed on them. That's the background of this litigation. The litigation seeks to find out
by discovery, by interrogating government officials about who they talked to at big tech
and what kind of arrangements they made to determine whether or not there has been a
symbiotic relationship between big tech and the government. So earlier today in that case, a federal judge ordered
Dr. Anthony Fauci, we all know who he is, and Jen Psaki, now a correspondent,
political analyst for MSNBC, but for two years or nearly two years, the chief spokesperson for the White House,
a position that used to be called the press secretary. The federal judges ordered the two
of them to testify about who they spoke to in the federal government when they worked there. I think
Fauci still works there for another month, can't come soon enough. And who they spoke to at Big Tech.
These will be profound depositions.
You know what a deposition is.
It's an examination under oath before trial.
There's no judge there.
There's no jury there.
It's the lawyers for the attorney general who are suing Big Tech and the feds.
And that will be lawyers for the DOJ who are defending the feds,
representing Agent Pisaki and Dr. Fauci, and lawyers for big tech will be there.
But if the lawyers for the Attorney General of Louisiana find out that there was a symbiotic relationship between the federal government and big tech, my dear friends, we have an entirely new ballgame because then big tech will not be able to censor based on the content of speech.
Now, as a believer in first principles, that property ownership gives you the right to kick off your property, whoever you want, even the government.
I support big tech's position to decide who it wants to kick off
its venues. Ah, but if they're doing the government's bidding, then the First Amendment
applies to them and they can't do it on the basis of the content of speech. So we'll see where this
litigation goes. Where do I hope it goes? I hope it discovers the truth. More as we get it. Judge Napolitano. What a fascinating case
this is. Judge Napolitano for judging freedom.