Judging Freedom - Twitter DMs and US Gov _ Tik Tok ban_ Clarence Thomas_s Trouble

Episode Date: April 17, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, April 17th, 2023. It's about 9.30 in the morning here on the East Coast of the United States. Here are your hot topics, and there's four of them of a variety of interests, I think, a variety of topics, but all of substantial interest to you. Elon Musk did an interview over the weekend with my friend and former colleague, Tucker Carlson. The interview will be aired on Fox News tonight and tomorrow night. And there's a lot of things that they talked about, but I haven't seen the whole interview. I've just been informed of excerpts from it. Here's the most startling excerpt.

That under the former Twitter ownership of Jack Dorsey, the United States government had full access to all the communications on Twitter. Even if you sent a private message from you to another Twitter user, not the public message, the United States government was aware of it and saw that. Now, how the heck did that happen? Well, they didn't hack into Twitter because that would have been a federal crime, not that that stopped them in the past. We know that the best hackers in the world are agents, so I shouldn't say the best, the most prolific hackers in the world are agents of the federal government. They, of course, engaged in a relationship with Twitter, whereby Twitter gave them, gave the federal government of the United States access to your private

communications if you use Twitter, which I imagine most of you do. This is a problem that Judging Freedom and a lot of us on the libertarian side of the world have been talking about for a couple of years now. Big Tech allowed the feds access to communications that all of us thought was just being seen by Big Tech and by the people at whom the communications were aimed. What favors did the government do in return for Big Tech? What non-prosecution was there? What carrot, what stick was there? What right did Twitter have to reveal the contents of all of your communication with the federal government? And who in the federal government? Was it the FBI?

Is this a fishing net thrown out there to see what fish they can pull in? Can the FBI just throw out fishing nets just to see if anything criminal comes back? No, it cannot. The Fourth Amendment has been interpreted clearly and unambiguously by the courts. The police can't even run your license plate without articulable suspicion, the ability to articulate some suspicion about you. No criminal or investigative procedure can be commenced in the United States of America by any law enforcement agency without articulable suspicion about the person who is to be the target of that investigation. That was written. The implication is in the Fourth Amendment. It's been interpreted that way

because the government in this country cannot just start a criminal investigation against anybody it wants. So why does the government want all of your private communications? Why did Twitter, the former Twitter under Jack Dorsey, not the present Twitter under Elon Musk, why did Twitter enter into this symbiotic relationship? Here's Twitter, my one hand, and here's the federal government with my other hand. it's only worth $22 billion now, and he paid $44 billion for it. He knows how to deal with that. But my hat is off to him and off to my friend Tucker Carlson for revealing that the feds have done this. And the feds must be bitter because they're locked out of Twitter. Bitter because they're locked out of Twitter. State of Montana thinks it can interfere with the freedom of speech. The legislature in Montana enacted legislation banning TikTok in the state of Montana. Well, the legislation actually bans the sale or the availability of the TikTok app in the state of Montana. They really can't ban you from using it, and the legislation doesn't even attempt to do that. But basically, the legislature of the state of Montana claims that

TikTok is a national security risk, and therefore, the legislature of the state of Montana is going to keep you, if you live in Montana, safe from a national security risk. There are many constitutional issues with this. The first is that national security is a federal issue and not a state issue. And who cares what the legislature of the state of Montana thinks about it? The second is that this is a commercial enterprise TikTok. And under the Commerce Clause of the Constitution, only Congress can regulate channels of interstate and foreign commerce, not the legislature of the state of Montana. And the third is TikTok is effectively the freedom of speech. You want to risk agents of the Chinese

Communist Party having access to your private, personal, even intimate data on your mobile device or your desktop. That's your choice. You can do it. The legislature doesn't exist to protect you from yourself. So for all of these reasons, this legislation should not be signed by the governor. And if it is, I think a federal judge won't join it as soon as it is challenged. Another example of do-gooder, big government, government trying to tell you how to live. This in a conservative Republican, small government state like Montana. What are they trying to do? Impress the folks back home because they want to take on TikTok? Leave TikTok alone and let me decide what app I will use and what means of communication I will use. I've had my own problems with TikTok,

as a lot of you know. Last week, one of our segments had a quarter of a million views on TikTok. The week before, a similar segment, five, six, seven, 10,000 views. They promote what they want. They suppress what they want. Guess what? They can do it. They're not the government of the United States. They can make judgment based on the content of speech, just like Twitter. I'm not suggesting Twitter should make judgments based on the content of speech, but it can do so. Facebook can do the same. YouTube can do the same. I've been sanctioned by all of these entities. They don't like the things that I say. I understand it. I get it. They're private bulletin boards, and the government should have nothing whatsoever to do

with it. You like TikTok? You like that sort of fast 90-second off-the-wall way of communicating? Use it. You don't like it? Don't use it. You don't need the government to tell you what to use and what's dangerous for you. The whole purpose of the First Amendment is to keep the government out of the business of speech. Okay. First Amendment. Congress shall make no law abridging the freedom of speech or of the press. Today, that means no government shall make any law abridging the freedom of speech or of the press. Federal, state, local, executive branch, legislative branch, judicial branch. The courts can't silence you any more than the legislature can. And the legislature of Montana, every member of that legislature took the same oath that I did when I became a judge in New Jersey. What? New Jersey and Montana? Yeah. The Constitution of the United States requires that every public official in the United States, from a school board janitor to the president,

from a national guardsman to a governor, every public official in the United States of America takes an oath to uphold the Constitution of the United States. Obviously, you take other oaths. I took an oath to uphold the Constitution of the state of New Jersey when I became a state judge. These legislators in Montana take an oath to uphold the Constitution of the state of Montana. My point is that they took this oath to uphold the U.S. Constitution, which includes the First Amendment. Government shall have no involvement in the content of speech, which includes the Commerce Clause. Congress regulates commerce, interstate commerce, and commerce with foreign nations. The states do not do so. That's pretty basic first-year constitutional law, con law, constitutional law 101, and the legislature of the state of Montana should understand that. Shame on them for not.

I hope that Governor Gianforte does not sign the legislation. I have a feeling from his prior comments that he will. Justice Clarence Thomas in a little bit more hot water this morning. I don't know where this is going. Full disclosure, Justice Thomas and I have socialized a few times in large gatherings with other people there. I have applauded his work on the Supreme Court. I've applauded to the skies his decision in the Bruin case. That's the right to keep and bear arms, which re-identifies the Second Amendment as a first class right. It puts it in the same category as the First Amendment. The Second Amendment protects, doesn't grant, protects your right to keep and bear arms. Where does it come from? According to Justice Scalia, not in Bruin, Justice Scalia was dead when Bruin was decided, but in Heller, the right to keep and bear arms

is a modern extension of the ancient right to self-defense. You can use the same means to defend yourself that the bad guys use and that the government uses. That's Heller. Bruin is you can carry the same weapon that the bad guys do and that the government does. Okay, if you're convicted of a crime, there's going to be violence, there's going to be some restriction on your ability to carry. But if you don't have a criminal record, every state in the union now is a shall carry state, meaning the presumption is that you have the right to carry. In states like New Jersey and New York and California and Illinois, the presumption was that you couldn't carry. You had to prove why you needed to carry the weapon. Thanks to Bruin, the Justice Thomas opinion, back to Justice Thomas in a moment, that presumption is now switched. The presumption

is now that you can carry and that the government shall issue you the permit. And if they don't want you to carry, they have to prove to a judge and jury why you shouldn't. I don't think you should need a permit anyway. You don't need a permit to own a printer. You don't need a permit to run a podcast. You don't need a permit to print your political views. Why should you need a permit to keep them bear arms? Why? Because if the bad guys take over the government and in some places they have, the first thing they're going to want to do, and in some places they try and do this, is to take your guns away. Okay, Justice Thomas apparently has been receiving lavish vacations from a billionaire and didn't report them. All right, I know how much of a pain in the neck it is to report gifts from people. I had to do it when I was a state judge.

The federal rules are even stricter. In Justice Thomas's case, these were many, many very lavish, very expensive trips. There's an exception to the reporting requirement for hospitality. Hospitality is defined as staying overnight in someone's home or in a hotel room that they have paid for or dining with that person. And Justice Thomas declined or failed to report that. Now it turns out that Justice Thomas has been receiving rental income from a phantom organization, from some organization that hasn't existed or company that hasn't existed since 2006. I don't know if these reports are true or not. I mention them to you because this is going to be

the basis of a major push to attempt to drive him from the court. As conservatives drove Justice Abe Fortas from the court in the 60s when LBJ was president. Liberals are going to try and drive Clarence Thomas from the court while Joe Biden's in the White House, while the Democrats have 51 senators in the Senate. They'd love nothing more than to switch, than to replace Justice Thomas with a choice of Joe Biden's. This will change the ideological balance of the court substantially. It won't tip it over to the liberals, but it would change it substantially. Is this a basis to impeach him? Probably not. Is this a crime? No, it's not. Is a violation of legal ethics? It may be. I don't know. I say I don't know because technically the legal ethics

rules don't apply to justices of the Supreme Court. They apply to state judges. They apply to federal judges. They apply to every judge in the union except the Supreme Court of the United States. There are federal statutes that require reporting of gifts and benefits, even for justices of the Supreme Court. These are not criminal statutes. These are administrative statutes. So the failure to comply with them results in a compulsory report of them. It doesn't result in any prosecution or impeachment. So again, I know the liberals can't stand Justice Thomas. I think he's a great jurist.

I don't know where this is going to go, but I point it out to you because it's a danger for Justice Thomas and this battle is coming. Why he didn't report this stuff? Well, in the one case, the hospitality, there was an exception. This latest stuff that came out this morning, I really don't know. How could he receive income from a corporation that doesn't exist? What's the true origin of the income, and why didn't he report it? Questions that hopefully he will answer. It won't satisfy those who want him on the Supreme Court, no matter what his answers are, but he does have a lifetime appointment. Finally, people that have been questioned before the grand jury in Washington, D.C., investigating former President Trump's retention and use or abuse of

national defense information documents at Mar-a-Lago are reporting that they are being asked if President Trump showed them a secret map. Now, we don't know what's on the map, but we know that the map contains national defense information. Were you at Mar-a-Lago? Yes. Have you seen this map? We don't know what the answer is. Did the president show this map to you? We don't know what the answer is. I say we don't know what the answer is because these witnesses have told reporters that they've been asked about the map. They haven't told reporters what their answers have been. Why do I mention this? Well, this is a new area that the feds are investigating the former president for.

We know that as far as Mar-a-Lago is concerned, they're investigating him for possessing, for transferring, and for hiding. Three separate crimes. Possessing, moving, and hiding national defense information, information which is always and everywhere criminal to possess or move or hide outside of a secure federal facility. Even the president can't do this. Mar-a-Lago is not a secure federal facility. The White House is, and there are numerous secure federal facilities around the country. I mention this to you because of reports this morning that witnesses who have testified before the grand jury investigating Mar-a-Lago, have reported they've been asked about this.

What's the law? Well, if President Trump retained national defense information, whether it's marked top secret or not, whether he purported to declassify it or not, it's still national defense information, and it's still criminal to possess always and everywhere outside of a secure federal facility, if he showed it to them, that would be a federal crime. And if they told the grand jury that he showed it to them, even if they had a top-secret security clearance because of where it was when he showed it to them. Mar-a-Lago and not a secure federal facility.

It's a federal crime. There's Chris getting excited. He wants to be on camera. Chris, daddy's over here. I'm not making light of the investigation of Donald Trump. Chris, my dog, just sees something outside and he's excited about it. And I'm not going to leave you to go silence Chris because we're almost done. Jack Smith is almost done.

That's the chief, the special counsel investigating President Trump. It appears that they are nearing the end of the investigation on Mar-a-Lago. They are not nearing the end of the investigation. Well, they're nearing it, but they're not there yet on January 6th. But expect a decision soon about whether the federal government is going to seek an indictment of the former president on Mar-a-Lago. Not gloating about this. I'm not happy about it. But my duty is to report it to you as I understand it to be. There you go. 10.15 today, the great Ray McGovern. How do these secrets get out? 11 o'clock today, the great Larry Johnson.

Is this a controlled government leak? What Jack Tashira revealed. And 3.30 today, Tony Schaefer. How difficult is it to get a top secret national security clearance when you're 21 years old? More as we get it. If you like this, like and subscribe. See you later. Judge Napolitano for judging freedom. E aí Okay. you you Thanks for watching!