Judging Freedom - Twitter, Google & Ukraine War w_ Scott Horton

Episode Date: January 16, 2023

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Monday, January 16th, 2023. It's about 2.30 in the afternoon here on the East Coast of the United States. My guest today is no stranger to the Judging Freedom audience. Scott Horton is one of the best known, most consistent, most persistent defenders of human liberty in the United States of America today. We often talk about anti-war and about government excess. I guess between anti-war and government excess, that's just about everything there is to talk about. the DEA, the BATF, all these three and four letter government agencies, which have co-opted private entities to do their dirty work. So the FBI obviously, or theoretically, I should say, not obviously, can't surveil someone or interfere with their procedures because of the content of

their speech. But the FBI could certainly get Twitter or Facebook to do it, either because the FBI has threatened, coerced, bribed, cajoled, put in any verb that makes sense. How dangerous is this? Well, it's completely crazy. I mean, for people who are keeping up with the Twitter files, one of the first things that Matt Taibbi, you know, was clear on here is that they don't even pretend to be following any particular law or even regulation that says that they can do this. The FBI's job, if it's not, you know, counterintelligence, you know, the counterintelligence division dealing with foreign countries or foreign terrorist groups or something then their job is building criminal cases who says that they have a job who at all ever what law did congress ever pass or edict did any president ever issue that says that their job is to tell twitter to you know shadow ban or ban or boost this that or the other person at all. How in the world did we come up with this, where this is their role? And that's why it was all secret, right? It's probably

all illegal. And of course the Twitter files and people really should go look at that. I know that, you know, TV news has not done a great job because mostly, you know, they're not, they're kind of in the same position. They're not interested in telling this story and they're not interested in giving a big scoop to a guy on Substack, but the extent of the government's dictation to Twitter about how they're to operate and who they're allowed to speak is really mind boggling. It is. There's a couple of basic principles of constitutional law here with which I think my listeners and viewers are generally familiar. One is if the government can't do it, they can't get somebody else to do it for them. And here we're talking about punishing speech or evaluating, investigating based on the content of speech. The First Amendment prohibits the FBI from investigating somebody because of the content of their speech.

Another principle is no law enforcement can commence any criminal investigation without what's called articulable suspicion. It must be able to articulate what it believes would be a case against the person they're going to investigate. Otherwise, it's a phishing expedition, which the Fourth Amendment was written to prohibit. And a third principle of law is, and this is something that Twitter and Facebook and Google and the high-tech, big-tech companies that have been suckered into working for the FBI and other federal agencies should know about. If Twitter is doing the FBI's bidding for it, then Twitter could have the First Amendment applied to it, and it would no longer be able to make judgments based on the content of speech.

The critic can kick you and me off because they don't like what we say. It's horrible. It's happened to you. It's happened to me. I'm enduring it now with TikTok. They're a private bulletin board. They can do it and I can go somewhere else. That's the law. But if they're doing the government's bidding and a proper case is brought before a federal judge, if they're engaged in, I'm holding my fingers of my hands together, a symbiotic relationship, Twitter, FBI, doing the same thing together, then the First Amendment, which restrains all of government, can be used to restrain Twitter. I'm just using Twitter as an example because we've both suffered at their hands. And they will lose the value of being private and being able to make private decisions.

So this is going to come back and bite them. What I want to know is why big tech is doing this. What is the FBI? What is the DEA? What is the Bureau of Alcohol, Tobacco, and Firearms? What is the NSA, the federal government's 60,000 domestic spies giving big tech in return for doing this? Scott, do we even know? Yeah. Well, I want to ask you though first, I mean, does that mean that we really just need

a good lawsuit with standing and you think of any good federal judge is going to strike this down or is there a fictional version of how it's supposed to be but you're glad you get away with this now the one word answer to your question is yes the longer answer is there is such a case which is how we know about a lot of this 16 uh state attorneys general they all happen to be Republican, and they all want to be the governor of their state. Every attorney general wants to be the governor in the state systems, are suing big tech before a federal judge in New Orleans.

And that federal judge has opened up discovery, the exchange of documents and information before trial. And that process has exposed damning emails between the Department of Homeland Security and big tech. And they're just at the tip of the iceberg of discovery. So what is the purpose of this litigation not money the purpose is to impose the first amendment right on big tech yeah which causes it to lose its status as a private entity and and lose its ability to make judgments on the basis of the content of speech then they can't ban you uh when you say the individual is sovereign and war is evil. And they can't man me when I say the individual is greater than the state.

But you're saying that the Constitution and the law are so clear on this that they'll have to rule the right way because of previous precedent, etc. You're very confident in that. You can always find an exception, but I'm saying the jurisprudence is very clear. Yeah. an exception, but I'm saying the jurisprudence is very clear. When the private actor, Twitter, using it as an example, and the government actor, any one of the three-letter agencies, and in the case I'm talking about, the principal defendant is DHS, Department of Homeland Security, are engaged in a symbiotic relationship, each benefiting the other so that you can't really tell who's directing whom,

then the doctrine of state action imposes the government restrictions and restraints on the private actor. I mean, the last case is somebody getting injured at a stadium. Who owns the stadium? You're at a Yankee game. You're going to sue the Yankees because the escalator didn't work or you're going to sue the city. Well, the city owns the stadium. The Yankees are the tenant, but because they're in a symbiotic relationship, you can't tell who owns it. They're both on the hook. I see. Okay. So now that explains why we see in the Twitter files that essentially what happened was this is all illegal and that was why it was all secret. And you have a big part of the narrative seems to be congressmen coming because they just have their short-term political interest on the line.

So you have Senator Warner coming. And Greenwald's been writing about this for a long time, Glenn Greenwald, about Senator Warner going to California and telling Facebook and Twitter, you guys better start doing this dirty work or we're going to make you, and that's going to be more costly. So just go along. Essentially, they wanted previously to just hide behind 230 and say, hey, people can say whatever they want and we want to stay out of that. The government made them do that. When you say hide behind 230, you are referring to a section of a statute which immunizes the bulletin board for liability for what is posted there.

Stated differently, if I post something on Twitter that really harms someone, Twitter can't be sued because of this Section 230. The government has been holding like a sword of Damocles, the threat to abolish 230 over big tech. They shouldn't be doing that. Either it shouldn't exist, in which case it would just cost more to use these entities because they'd have to get defamation experience. But the government shouldn't exist, in which case it would just cost more to use these entities because they'd have to get defamation experience. But the government shouldn't be threatening people on account of speech. That's called chilling. You know, there's a famous case, this is Nixon era, where he sent the army in plain clothes with those old-fashioned flashbulb cameras at the anti-war demonstrations to take pictures of the anti-war demonstrators. The courts found that to be chilling.

That is the government scaring people into not expressing their freedom of speech. That's effectively what Senator Warner and others have been doing in the situation you described. In the case in New Orleans, it's far more insidious and far more complex. Warner is just one of 100 senators, and he needs 60 plus the House to change legislation. In the DHS case, any one of those bureaucrats can say to Twitter, we're going to make your life miserable if you don't work with us. Right. And that's what it all comes down to. So it's sort of a soft coup. And of course, you know, you have to, if you rewind the thing, I know you're familiar with the great

journalist, James Bamford, who wrote a puzzle palace body of secrets in the shadow factory, all about the national security agency. And you see there where really the entire telecommunications industry in America post-World War II was built with the U.S. government hand in glove all along, maybe even before that. And so that was what we found out from Snowden, for sure, was he confirmed everything that a Bamford fan ever worried that turned out to be true, that the government had total access to all of these companies and all this data, everything that goes through the fiber optic line or bounces off one of these cell phone towers. They got every

bit of it and on all of us and they keep all of this data. And so then now this is like the next stage is now then they turn back around and they use the data to tell the at least some of it to tell the Silicon Valley, you know, the website companies, the social media companies who's allowed to talk about what. And it's pretty crazy that this would even happen in America. I guess we've got to stop calling it that. One of the problems with this is it's not just confined to the people that do it. It spreads as a culture in the government. My column this morning is about a rather remarkable admission that the FBI made. It published in 2001 a 906-page set of rules for FBI agents telling them how they can get around using the Fourth Amendment, which requires that they develop probable cause and present it to a judge and get the judge to sign a search warrant just by getting the NSA and the CIA to do the spying for them. And in 2001, 2021 and 2022, they've been training at management's been training FBI agents on how to do this. That document was just released to the Congress last week. So the FBI is now admitting what you and Glenn Greenwald and Edward Snowden and Ron Paul and I have been complaining about for 20 years since the Patriot Act, that they have developed a culture of cutting

holes in the Constitution and using the spy agencies to gather evidence for them in criminal cases. When FISA first came down, there was a wall in FISA and what the intel community developed couldn't go over to the law enforcement community. The Patriot Act destroyed that wall. We now know that it not only destroyed that wall, but a culture of FBI agents has come of age and they've been taught spy first and worry about the fourth amendment later. So the FBI has become the KGB. It's a domestic spying entity. It wants to predict crime rather than solve crimes that have already been committed. That's where we are today, my friend. Yep, absolutely. And you know what? 20 years ago, I interviewed Tim Lynch from the Cato Institute about the Patriot Act and how you see what's going on here. They're going to take all the

spying power and they turn it on us. But then they say, but don't worry, the CIA and the NSA and the FBI counterintelligence division, they don't have any power over the American people. So they might be spying on you, but it's essentially, it's all sealed. And I says to Tim Lynch in that interview, I go now, but see what's going to happen is they're just going to violate the fourth amendment wholesale and just transfer all that information right over to the cops on whatever level that they want. As you know, they call it parallel construction and come up with a fake excuse for kicking in your door later, but they can go off a secret information that they got right off of the top secret grid that they should not even be able to have on us in the first place.

Parallel construction occurs when the FBI or any police entity, the FBI is the masters at this, obtains evidence of a crime by an illegal means, they then have to reconstruct, actually recreate a means by which they claim to a judge that they obtained it, because if they obtained it illegally, theoretically, the exclusionary rule would prevent prosecutors from using it. So they use various teams. So the team that committed the crime, the spying, and the team that wants to use the fruits of the crime in a courtroom, they don't even know each other. There are so many different steps between them. So the prosecutors in the courtroom are misleading a judge, but they don't know it. They think that they have acquired it by legal means.

I mean, the government is insidiously smart in its efforts to cut holes in the Constitution, dupe federal judges, trick defendants, trick defense lawyers, because all they want to do is win, even though they have taken the same oath that I took when I became a judge, which the president took, which a school board janitor takes, which anybody that works for the government takes to preserve, protect, and defend the Constitution, which includes the Fourth Amendment. All right, let's switch gears. How aggravated are you that as we speak, the United States military in Fort Sill, Oklahoma, is training Ukrainian troops how to use the Patriot missile system at federal government expense. Well, I mean, the entire thing from beginning to end is completely crazy. And I'm right now writing a history book of why this is all George Bush, Bill Clinton, George Bush, Barack Obama, Donald Trump, and Joe Biden's fault. And, you know, all of it from the very beginning of the fall of the Soviet Union, when H.W. Bush pretended that they were going to do this partnership for peace, when they meant all along to build NATO up at Russia's expense. And knowing all along, and as all their critics said, as even the guilty said all along, boy, is this going to provoke a reaction from the Russians? And they did

it all anyway. And then if you go back to a year ago, you could see where the Biden administration was not willing to negotiate in any real way on this. They were willing to tell the Russians, you better not. But then plan B is go ahead and do it. And they even assumed, Judge, that the government in Kiev would be toppled immediately, that the Ukrainian military would be smashed. Their plan was to back an insurgency, maybe from the West against the Russian occupation in the East and replicate Rambo three. And that's great time that we back all the Mujahideen, including bin Laden and his friends in Afghanistan against the Soviets in the 1980s, which worked so well to help bankrupt the Soviet union. And they just have worn it on their sleeve all along.

We don't want talks. We want to weaken Russia by dragging this war out. And then of course it's mission creep. A thing keeps growing and growing. The Sunday Times in London says that America, essentially the Pentagon, authorized the Ukrainians overseeing another allied NATO state's intelligence agency running sabotage missions. Our critical infrastructure inside Russia right now. Our mutual friend Gerald Salenti has been saying since last February that World War Three has begun with every tick of the clock. There's more and more evidence to back up what he's saying. So we have advisers in Fort Sill, Oklahoma. You know those advisors will be on the ground in Ukraine to make sure that their pupils are properly using the Patriot system.

According to Colonel McGregor, it takes 100 human beings operating in tandem with each other to fire one of those missiles off. So you'll have a hundred human beings plus their American advisors. All it will take is for a few of those Americans to get killed by accident or otherwise. And then Joe Biden has his war. And listen, Joe Biden doesn't want a war with Russia. He said all along that he wants to do everything but get into a war with Russia. And what we're going to do is we're just going to pour in so many arms and kill so many Russians and they'll be humiliated and beaten and leave. And we'll even give Crimea, you know, get Crimea back and it'll be great. And the Russians won't do anything about it. This is, they're even calling it the new thinking is that, geez, you know, we were hesitant to do things like Patriot missiles before and tanks.

But now we've decided that, geez, Putin's hardly reacted to everything we've done so far. So let's go ahead and ratchet up the pressure even more and escalate. So, you know, they justify the mission creep, see, he hadn't nuked New York City yet, so let's go ahead and push him further and push him further. The main thing I don't understand, Judge, is where are the seven and a half billion, eight billion earthlings on this? What are we doing? There should be an entire global general strike until Blinken and Lavrov hammer out a damn deal. This is crazy that we're allowing this to continue this way. Well, old Joe, whatever he has between his ears is listening to

Blinken, the Secretary of State, and Lloyd Austin, the Secretary of Defense, and all of their globalist nationalist buddies in the governments in Western Europe. Colonel McGregor predicts the government of Germany will fall if it sends three or four hundred tanks to Ukraine, particularly if a Russian missile lands in Munich. So I don't know where this is going to end, but it doesn't look good. And the people that want war will always keep starting a war unless and until they realize how horrible and detrimental it truly is. Scott Horton, always a pleasure, my friend. You're always welcome on the show. I can tell from the emails that we're getting how popular you are with the Judging Freedom fans. And you know how popular you are with yours truly. Thank fans, and you know how popular you are with

yours truly. Thank you very much, my dear friend. Thank you, Your Honor. Appreciate it. Judge Napolitano for Judging Freedom.