Judging Freedom - Mike Benz: What Happened to Freedom of Speech?

Episode Date: April 11, 2024

Mike Benz: What Happened to Freedom of Speech?See 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 Thursday, April 11th, 2024. Apologies for the late start. Still some gremlins hanging around here, which we've managed to address. Mike Benz joins us today. You may recall Mike's prior experience here. Mike is a fierce, even ferocious, exposer of the government's assaults on free speech and defender of the freedom of speech. Mike, welcome here.

I wrote a column just last week because a bunch of these things were bubbling up and got under my skin. In the same week, the state of Texas enacted legislation requiring schools to punish students from pre-K to grad school if they uttered a statement that administrators deemed as anti-Semitic, the state of South Dakota did the same thing. The FBI showed up at a lady's house in Stillwater, Oklahoma, asking to look at her social media. Whatever happened to the freedom of speech? Yeah, that's not the way to deal. as you just pointed out, whatever the concerns are about the the undermining of social cohesion that comes with some of the different identity conflicts that that can bubble up in a multicultural society. This this sort of speech policing that simulates the effectively the hate speech laws in Europe is the exact opposite

way to go about it. I mean, no one's mind was ever changed on the issue by effectively criminalizing speech or destroying your career over it. What that creates is a lifelong simmering resentment and actually the sort of validation of whatever resentments were giving rise to that speech in the first place, and then a desperate search for allies to overcome that. It basically, you know, I think is the reason that oftentimes things explode is because of the censorship rather than the asset of censorship sort of first came to social media in 2016, and it became such a useful proxy political weapon from Democrats and, you know, primarily against Trump supporters here in the U.S., although there was, you know, it's not a partisan thing. They would have done the same thing to Bernie Sanders if he had become president or to Jeremy Corbyn and the anti-NATO sort of labor party vestiges over in

Europe. But I think once that tool opened up, there became a lobbying inflow from all the different groups who have a role in American politics to lobby for that tool to be turned in their favor because it's such a simple, easy, you know, band-aid over the problem they're trying to solve. They just don't really see the disease that festers. I get it that the Jewish people in America fear another Holocaust and want to suppress speech that they think might lead to that. But the whole purpose of the First Amendment is to keep the government out of the business of speech. Now, this is not a federal issue yet, except for the

FBI. We can talk about that in a few minutes. This is two states doing what is absolutely prohibited under the First Amendment. Even though the First Amendment, you know this, I want to make sure the audience does, says Congress shall make no law abridging the freedom of speech from and after the 14th Amendment. That has been interpreted to mean no government shall make any law abridging the freedom of speech. Well, right. A federal legislative executive judicial. The government's got to be out of the business of evaluating the content of speech.

We're not talking about somebody with a bullhorn holding a political rally at three o'clock on the morning in a residential neighborhood. We're talking about the government looking for and punishing or suppressing or exposing speech that it hates and fears. Yeah. And, you know, as you pointed out, these are Republican states. These are these are red states. These are the same states that have been complaining about the government, the federal government's role in censorship. You know, in Texas, it's, you know, State Attorney General Ken Paxton has been a champion. You know, Texas passed this anti-censorship state law shortly after Florida did in, you know, in like 2021.

And then it was fought, you know, by the censorship industry and, uh, you know, actions like this very much undermine the credibility of, of the idea of, of, uh, you know, free speech as being the thing that they're arguing about. It starts to make it look like, well, now you don't really hate government censorship. What you hate is the, is just censorship of your own political viewpoints. I mean, this, this can be boomeranged back to hurt Texas interests in process. It's not just the Texas state social media law that's in play right now, but also Ken Paxton is bringing a lawsuit against the State Department for the federal government's role in internet censorship in tandem with, I believe, it's the Federalist and Daily Signal, I believe,

or Daily Signal or Daily Wire. But this is something that can be turned right back on Texas. I mean, I could totally see the federal government citing in their own basically response briefs that what they're doing is no different than what Texas itself does. Right. The case you're the case you're talking about is actually a species of the case. Not this very one is before the Supreme Court as to whether or not the Department of Homeland Security can use carrots and sticks to get social media to suppress what it hates and to push up what it wants the public to hear. The oral argument was very, very disturbing because some of the so-called conservatives on the court seemed to grant that the government has this power to do this stuff. Well, my God, if the government can punish speech or advance speech indirectly because the Constitution prohibits it from doing it directly, what else?

What other curveballs are they going to throw to get around the constitutional restraints imposed on them? Yeah, well, and, you know, the Supreme Court laid down a clear standard around the government's involvement in speech in the Brandenburg decision. Right. You know, 40, you know, essentially, if you say, you know, I'm going to, I'm going to blow up this, you know, this movie theater or something while you're in it, then that's obviously something that has an immediate nexus to a criminal activity. On the other hand, if you're a thousand miles away and you have no present apparent ability to do it, and there's time for more speech to rebut what you said your speech

is protected right and the issue is brandenburg he was in ohio and he was calling for violence in washington dc right right because there's all there's there's levels of essentially you know um things get very attenuated the more distal something something is you know maybe the person wasn't really serious you know maybe he couldn't have the means to pull it off anyway. It was, you know, the speeches, inflammatory speech is used for many purposes beyond the sort of literal, you know, literal bounds of, of the, of the strict meaning, you know, it's oftentimes such speech is symbolic, but, you know, you have no intent to actually back it up. All of those different associations are cut off from when you move into the formal censorship of it. That is, you're sort of

saying, well, you're now cutting off the ability to even say such a thing symbolically, to even say such a thing hyperbolically, even say such a thing hyperbolically, to say such a thing satirically. All of that is sort of collateral damage. And that makes sense when there's an imminent nexus to violence because you just don't have time to go through whether or not he was joking or symbolic or whatnot, because it's about to happen right now. And he just told us it is. What's happening's happening here is, is not that, you know, this is just hate speech. This is, this is, this is just generic sort of, and, and, and not even in, in some cases, not even clearly that by, uh, you know, by, by what you, what's often associated

with the concept of hate speech. And this is a very vague concept, the definitions of it. You know, there are some very troubling ways in which even the definitions of this, you know, sort of thing have been rolled out that, you know, the issue is, is regardless of how you feel about, about, you know, the issues right now around, around Israel, around Iran, around Hamas, around any of that, the appearance of rigging the debate, so to speak, by preventing the precursors to opposition to one side of the debate is not good for folks who happen to be. That's not a good look beyond the

fact that it's against the law. Let me throw a few ideas at you. I have often argued, and this is not, I'm, the argument is not original with me, that one of the reasons we should not suppress hate speech is because you want to know who the haters are. If you suppress hate speech, you'll just drive them underground and it'll become anonymous hate speech. If they are free to articulate their hatred, at least you know who they are and that's a positive benefit. You may be able to engage with them. You may be able to Canada, or if we go across the pond to Germany, in both places, if you deny the Holocaust with ordinary speech, you can go to jail. Now, not if you deny the War of 1812, not if you deny the American Revolution, not if you deny World War I, but if you deny the American Revolution, not if you deny World War I, but if you deny the Holocaust. So these are countries that have taken just one small category of speech and made it so

profoundly criminal, five years in jail for a simple public denial. Should we worry about that coming here with all these assaults on free speech, Mike? Well, what you just said is as really interesting as it's playing out in Europe right now, because it's about, you know, there is in Europe, the new government in Spain has passed a law on protecting history. And, you know, this has to do with the fact that the Spanish Vox Party is rising in power. It's a right-wing nationalist populist party that is very NATO critical, and NATO has been working very hard to suppress the rise of Vox in Spain. And because they are sort of right-wing populist nationalists, there is a sort of valorization of the sort of Franco and anti-communist era in Spain. And so the Spanish left-wing government there has now,

and this is something that was consensus built by many of the sort of NATO-EU arms, and I'm concerned about its rise all across Europe, is this idea of defending history in the name of democracy. I mean, I think the word, like defending democracy through historical preservation is sort of the way that they've, they've constructed that legally, but now it is illegal to deny in, in Spain, effectively the, the controlling parties, historical, you know, concept of, of what played out during the Franco era or valorization, for example, of Franco is, is, is, is illegal and people are being, you know, people are being prosecuted under it.

It's a, it's, and then, you know, there is that thing of he controls the past. They even removed Franco's remains from the elaborate tomb and buried him in some anonymous grave. And if you show up at that grave and express some support for him, you can be prosecuted. Right. But the issue here is no matter where you fall on the issue, once you unleash this weapon as fair play in politics, the moment you slip in power, you have no defense on principle and in public relations to be able to argue that it's unfair. Like, so, you know, those types of, of, you know, uh, criminalization of, of speech, you know, around,

around historical events is, is gives you no recourse. Many of those same people who, who support that are against, for example, DEI and against the excesses of critical race theory and things like that. Well, you now have no defense except raw political power. There's no consistent principled value underneath what you're doing. Right. It's just suppress the speech I hate and advance the speech I like as long as I'm in power. And the purpose of the First Amendment was to make sure that in America that never happened. Right. There's a natural ebb and flow of political forces over time. And sometimes one faction wins, sometimes another.

But that's held together by these concepts of fair play around you know, around censorship and criminalization of speech that, that, you know, it's at the end of the day, it's a persuasion game, not a prosecution game. That's what we're told as the presupposition of democracy's legitimacy, that it's about the hearts and minds of the people. That's what gives the government legitimacy, that they've ratified it in the form of a vote. Well, if you can't utter the words to be able to even go about the, you know, the, the political coalition building process, because the, the very, you know, sort of atoms, the, uh, that, that comprise the, the material that you're, that you're building as you, as your plank are, are illegal, the, the raw materials, the words, the concepts, the, uh, you know, historical interpretations, if, if it interpretations, if it's banned at that level,

well, then that's a God button to be able to control politics. And the moment you slip and the other side wins, there's nothing to really stop other than, again, just raw political power, their ability from using that to permanently subjugate you. Because they'll argue you, you call it for it yourself. Let's come back to what we know is happening here. Three FBI agents, two, two male, one female show up this lady's door. She's a local political activist in Stillwater, Oklahoma.

This is three weeks ago and say, we want to talk to you about your social media. She says to them, where's your warrant? Which is the right thing to say. They say, we don't have one. She asked for their ID. They say, well, we showed it to you earlier before your camera came on. They knew she was filming them at this point. We don't know what happened before the camera came on. She refuses to talk to them. And in the course of this conversation, I will tell you this, they were polite. They were profoundly wrong to be there. We'll get into those reasons in a minute.

But they were polite. They said to her, she said, what are you doing? You're FBI agents. And they said, well, this is our job. We spend all day, every day talking to people about their social media. She told them to leave and they did. In a piece that I wrote about this, I got a little snarky and I said, what you should have done is to call the local police and say, there are three people on my front porch who have guns and they're harassing me. Would you please come? The local policemen show up with armada at that point just to teach the FBI a lesson. But where does the government get the business, the time,

the assets, and the authority under the Constitution to surveil social media and knock on somebody's door because of what this lady typed into her Twitter account a week earlier? Well, I think what we've seen is that the true role of federal police in the modern era is to be political police. We've seen this at the FBI. We've seen this at DHS. We've seen this, you know, at the, at the whole JTTF, you know, structure, see this at the DOJ. At the same time that you have essentially, you know, prosecutors campaigning at the, at the, at the sort of law enforcement level on how soft on, on crime they can be, there's been on, on hard physical crime, you know, I mean, in San Francisco, you know, in California where they basically said shoplifting is legal,

as long as you steal less than $900, you can't go into a, into a CVS and buy a toothbrush without having, you know, a formal store employee unlock it because, because the law enforcement apparatus has loosened up so much on hard physical actual crime. But the thing that has been more and more strongly enforced and criminalized is any sort of proxy for membership in a political organization in opposition to the current regime. And this is, you know, every, I mean, there's so many programs now at DHS and the F and the FBI dedicate to this. You know, DHS is a counter radicalization program where, you know, they, they pay tens of millions of dollars to universities and NGOs and civil society organizations just to draw political maps of who's saying what on Twitter and social media. Right. Who's, who's, you know, who's pro-gun, who's the Catholic.

DHS also bribes social media for access to their venues and then uses carrots and sticks, that's what this case before the Supreme Court is about, to reward social media that plays ball with it, or like Apple, God bless them, punish social media that tells DHS to go take a hike. Most social media takes the cash and gives DHS what they want. Apple, for whatever reason, told them, again, go take a hike, literally. I don't know how that will end up. But that is the government doing indirectly what it obviously can't do directly. There's that famous line,

I've quoted this a couple of times, in the Pentagon Papers case. That's Daniel Ellsberg stealing documents, giving them to the New York Times and the Washington Post and the Supreme Court in record time said, absolutely constitutional. The Times and the Post are immune from criminal and civil liability because they are publishing matters of material interest to the public, doesn't matter how they got it. What happened in Ellsberg is another story, personally. But during the course of the oral argument, Justice William O. Douglas says to the lawyer for the government, let's see, I have the First Amendment here. Congress shall make no law abridging the freedom of speech. Let me ask you, Mr. Solicitor General, does no law really mean no law? And they publish that Q&A in the middle of the opinion. They never publish a portion of oral argument in their opinion, except for this, Douglas insisted on it.

And of course, the government can't answer that because in the government's mind, no law doesn't mean no law. No law means, well, whatever exceptions we can find for it. Right. No law means creative structuring. Now we need to turn to creative structuring in order to fudge out of that constriction. But this point that I don't think with what has been revealed about the corruption of our own government and permanent structures of our own government in the social media era and the revulsion that everyday Americans have against that, I think what many of the sort of federal police equities have turned into is a kind of political counterinsurgency

force where all proxies for opposition to sensitive regime policies are basically soft criminalized at the very least. And you have this window being extended where it used to be the FBI would hypothetically go after crime. The category of pre-crime has been massively extended in order to create a kind of drag net to be able to have a political radar system that you can add friction layers. I got to stop you, Mike, because of another commitment I have. But one third, according to Chris Ray, the director of the FBI, one third of FBI assets are spent on predicting crime. Mike, it's a pleasure. Thank you very much for joining us. Thanks, Judge. Okay. Coming up later today at 3 o'clock, Professor Mearsheimer at 4 o'clock, Max Blumenthal at 5 o'clock, the Intelligence Community Roundtable.

Judge Napolitano for Judging Freedom. I'm out.