Judge Napolitano - A Brief History of Free Speech in America

Episode Transcript

Speaker 1 (00:00):
Here it is. It is your Channa nine first morning
weather forecast, mostly cloudy, isolated showers, high at seventy seven,
mostly cloudy showers sixty overnight Tomorrow mostly cloudy, isolated showers
seventy eight, same thing overnight down to sixty four, and
a really substantial likelihood for rain on Friday. It would
be cloudy day all day, but by two pm and
through two a m. Saturday, showers are quite likely. Seventy

(00:21):
nine for a high. Right now, it's sixty seven. Time
for Chuck Ingram with traffic.

Speaker 2 (00:34):
Or not Wow.

Speaker 1 (00:38):
Usually not Chuck's fault. That's probably a system issue because
he does record the traffic. Welcome back to the fifty
five Kersey Morning Show appointment listening for so many of
my listening audience Judge Andrew Neapolitano every Wednesday with a
judge perfect timing on your call today, your on apologize
for Ingram not being there. Joe did talk with him
this morning, but sometimes the system just does not take

(00:58):
when it comes to recording the trap.

Speaker 3 (01:00):
Do you want me to give you the New York
traffic instead? Would be to your listeners.

Speaker 1 (01:08):
Much of the same way Chuck's traffic is useless for you,
with the exception of his weekly commentary. So anyhow, I
love the timing of your column. I'm lucky enough man
to get a copy of the advance copy of his
comm which comes out at midnight tonight every week. A
brief history of free speech in America because and I
love your reaction to this. If you may give me

(01:29):
a moment to tell you about what happened just yesterday.
There's an immigration advocacy group called Haitian Bridge Alliance, apparently
based in San Diego, and they represent women, girls, LGBTQ,
t q I, a black people, Haitian community and to
end racist border policies like remain in Mexico. Okay, that's

(01:50):
the fundamental nature of the group. They have submitted a
petition to the Clark County Municipal Court. That's the county
in which Springfield, Ohio sitch. You may be familiar with
the Haitian immigration issue that made the news.

Speaker 3 (02:02):
Well you know what's coming. This is a proposed criminal
compute think against Donald Trump and jd Vance. Is that right?

Speaker 1 (02:09):
That is right the Haitian community. This is the lawyer,
the lawyer for this group. The Haitian community is suffering
in fear because Trump and Vance is relentlessly irresponsible, False
alarms and public services have been disrupted. Trump and Vance
must be held accountable to the rule of law. Anyone
else who wreaked havoc the way they would have been
arrested by now. There's nothing special about Trump and Vance

(02:32):
that entitles them to get away with what they've done
and are doing. They think they are above the law.
They're only talking about what these men said about the
migrant situation in Springfield. That's free speech, and that is
a political issue at the core of free speech.

Speaker 3 (02:50):
It is clearly a free speech If you don't like
what Trump and Vance are saying about Springfield, and a
lot of people don't, including the Republic and mayor, go
into the marketplace of free speech and counter what they're saying.
I understand that Ohio has a statute whereby a private

(03:14):
citizen can file a criminal complaint and it is presented
to the local prosecutor, who must decide if there's probable
cause of crime. So this doesn't automatically become a criminal complaint.
Good God. If a private citizen could automatically trigger criminal prosecutions,
we'd still be trying cases from nineteen forty six. However,

(03:37):
this would never pass First Amendment to jurisprudence. Whatever you
think of Trump and whatever you think of what he said,
and the same for Senator Advance, their speech is absolutely protected.
I would think that whoever the lawyer is, an American lawyer,
an Ohio licensed lawyer who filed this would know that.

(04:02):
And I don't know if Ohio has a frivolous pleading sanction,
as New Jersey does and as the Feds do, but
this would clearly be deemed frivolous that is so unlikely
to succeed that it is a waste of the system's
time to file it.

Speaker 1 (04:19):
It's a Rule eleven violation. You have to have a
judicial cause. It has to be straight It passed the
straight face test, as I used to call it when
I was practicing law. You can't just file a random
complaint just because you feel like it. There has to
be a legitimate, lawful basis to do so. And you
would think this firm would know that, and this lawyer,
Sobdah Chandra, knows that as well. But my view is

(04:43):
that the Clark Keunty Municipal Court judge who is going
to be presented with this would immediately chuck it out
for the reasons that you and I are talking that
would preclude a Rule eleven violation if it moved forward.
Then I suppose the party that would have to respond
to the challenge of the legal action could then advance
that argument. So hopefully the judge puts the brakes on it.
But this is what's going on.

Speaker 3 (05:03):
Rule eleven is Rule eleven is only in the federal system,
and its purpose is to compensate a victim who had
to spend money on legal fees defending against a frivolous action.
I guess there is no victim here. Maybe the local
prosecutor would write a one page memo to the local

(05:24):
judge saying, you know, here's basic first Amendment. Lord, send
him a copy of my column. Right.

Speaker 2 (05:31):
That's why I said the timing was great because this
I just found out about this lawsuit this morning when
I was going over the news. I'm like, oh my god,
this is in my backyard, and there's a lawyer out
there in the world that thinks that is a crime
to make an offhand comment about and it was made
in the broader context of discussing a legitimate national political issue.
Which is the open borders problem that these cities are facing.

Speaker 3 (05:54):
Is political speech and therefore it is absolutely protected from
civil liability or criminal prosecution period. End of the story.
I'm giving a speech to a couple of thousand people
in Kingston, New York this Saturday, along with the Scott Ritter,
at Gerald Solente and Max Blementhal. It's a rally for peace,

(06:19):
and my assignment is the freedom of speech. So I
banged this out yesterday as sort of the basic outline
of what I'm going to talk about on Saturday. It's
a primer, a very very very short premer on the
freedom of speech, the history of the freedom of speech
in America.

Speaker 1 (06:37):
Well, it's a wonderful, wonderful premer too, because you know,
some of you know, the greatest presidents of the world
has ever seen, like Abraham Lincoln, he was engaged in this.
He arrested, as you point out, three thousand journalists and
newspaper publishers in the North because they criticized his government.
The oh, our own beloved Abraham Lincoln violated the First
Amendment and just stomped on it.

Speaker 3 (07:00):
And many of those people, you know, he not only
arrested them, he suspended the rid of habeas corpus, meaning
they couldn't even get brought before a judge to have
their incarceration justified until after the war was over and
Lincoln was dead. Of course, at that point they were
all freed. One case made its way to the Supreme Court.

(07:21):
The case is n Ray Milligan. It is a fabulous
opinion written by the Chief Justice of the Court. Lincoln
had appointed four of the nine members of the court,
and it overwhelmingly condemned what he did. There are no
he claimed he had emergency powers under the Constitution. The

(07:41):
opinion stands for the proposition that there are no emergency powers.
The rights guaranteed by the Constitution are guaranteed in good
times and in bad. They apply to the government and
to individual persons as well. But what triggered this was
not just my speech this weekend, and I wrote about
this either last week or the week before. What triggered

(08:04):
this as these prosecutions by the Biden Justice Department of
these Americans and Russians. For as Chris Array, the director
of the FBI, says, advancing Russian propaganda, Well, you can
advance any idea you want in the political environment in

(08:26):
the political context in America, and the government can't evaluate
it and say this is acceptable and this is not acceptable.
The reason we have a First Amendment is to prevent
them from doing that.

Speaker 1 (08:37):
Amen to that, but didn't stop President Woodrow Wilson another
thing you brought up here from and Congress from enacting
the Espionas Act in nineteen seventeen, which does exactly that.

Speaker 3 (08:48):
Yes, yes, And I love the tale that I told
in there. You know, Wilson is the former professor of
constitutional law and former president of Princeton University, then becomes
the governor of New Jersey for eighteen months and then
President of the United States. So while he's in the
White House, there are still students at Princeton whom he taught.

(09:10):
In order to taunt him, they went to the Draft
offices in Trenton, New Jersey, which is the local draft
office for Princeton, and they read subversive material aloud, and
he had them arrested because he felt it was impeding
a governmental function, which was the draft. What did they

(09:32):
read aloud? The Declaration of Independence. When he was challenged,
he gave a very very legalistic response. He said, read
the First Amendment says Congress shall make no law bridging
the freedom speech. I'm not Congress, I'm the president. It
doesn't retain to me. Well, that would presume that the

(09:54):
president can make a law, which is what he effectively did.
Note on this, he sent one federal agent to Trenton
to arrest these half dozen Princeton students. His name was
John Edgar Hoover.

Speaker 1 (10:09):
Oh no kidding, yeah, Oh my word, that is unbelievable.
Holy cow. Well, and then the other, the other story
or the other illustration or tale that is woven around
the First Amendment and how profoundly important they are and

(10:30):
how much it is protected. This termini illo and the
speech that he was a Roman Catholic priest, as you
point out, he was opponent of the Truman administration. He's
speaking with a crowd of almost two thousand people, most
of whom were supportives of him, but the detractors, you know,
were getting a little riotous. They stormed the stage. They

(10:50):
police tried to shut down his speech, and lo and behold.
The Supreme Court said no, you can't do that. Then
reminded me.

Speaker 3 (10:59):
Drove when the crowd got routy. The police told him
to stop and leave. He said no. The crowd trashed
the place. They didn't arrest a single person who trashed
the place. They arrested the priest because he wouldn't stop talking.
Convicted in our Chicago municipal court upheld in an Illinois
appellate court, refused review by the Illinois Supreme Court. US

(11:24):
Supreme Court in a very very famous case called termin
Yellow versus Chicago, reversed the conviction and said, the First
Amendment is so important in our culture it will even
tolerate a violent audience. And there's no such thing as
the Heckler's veto, meaning just because the audience is rowdy,

(11:46):
that rowdiness cannot be used by the government as an
instrument to silence the speaker because speech is paramount, speech
is paramount to safety.

Speaker 1 (11:57):
And this seems to have application, and many state funded,
government funded universities who seem to want to stop conservative
minded speakers from uttering a syllable because the students are
going to get out of hand, the anti Jewish protesters
are going to get out of hand, the pro Hamas
for example, protesters are going to get out of hand,
So we'll have none of that.

Speaker 3 (12:17):
It's all right there, it is, It is all right there.
If you own private property that's been dedicated to the
public use, meaning you're a college or a university that
accepts federal funds or state funds. In a state like
New Jersey, I don't know what the law is in Ohio,
then the First Amendment applies to you. And if there

(12:41):
is a public space, and I'm talking about a dean's office,
but if there's a public space on the college, you
can't silence students because you don't like the content of
their speech. And if other students don't like the content
of their speech, it is your duty to protect the speaker,
not to silence the speaker. To protect the speaker, whether

(13:01):
they're pro nuts and Yahoo, pro IDF, pro hamas, whatever
their views are, the content is of no moment to
the university. They have to protect the speaker. Well, now
it's your backyard. If you invite me to a garden
party and I start spewing hate speak, you can throw

(13:22):
me out. It's your backyard. It's not dedicated to the
public use. There is no First Amendment right on private
property unless the private property has been dedicated.

Speaker 1 (13:31):
To the public One quick point need to make for
we part company to they judge Innapolitano. When your company
becomes so inextricably intertwined with government that it becomes an
extension of government, your company, as independent as it may be,
like your backyard, your company then must abide by First
Amendment protections as well. And I'm looking forward today when

(13:52):
you know social media companies are prohibited from removing content
merely be based upon the the viewpoint of the speaker.

Speaker 3 (14:03):
That's called state action. When the private company, whether it's
Facebook or Verizon or Google, becomes so intertwined with the
government for the mutual benefit of both, then the restraints
imposed by the Bill of Rights on the government will
be imposed on the private company, the private landowner. I

(14:29):
think that's coming, Brian. I'm not here yet, but I
think it's coming.

Speaker 1 (14:32):
I do too, and I welcome that decision when it
ultimately comes. Judge, Editor Polatan, I'll always end on defending
freedom and your guests, who's coming up?

Speaker 3 (14:42):
I have Colonel Douglas McGregor today at two o'clock. He's
my superstar analyzing the latest in Israel and Hesbala, but
mainly the thin ice that the government of Ukraine is on,
and how old Joe and uh former President Zelensky's not

(15:04):
the president anymore, he just refuses to leave office. Are
doing everything they can to keep Zelensky above water until
November sixth.

Speaker 1 (15:15):
And we all know the Ukrainian government would more than
be happy with a Kamala Harris presidency versus Donald Trump presidency,
given their comments on the situation in those countries. Judge
Edna Paula Tana Defending Freedom. Search for them online. You'll
find the podcast at Catching Judging Freedom, Judging Freedom. I apologize,
I've been getting it right. This is the first day anyway.

(15:36):
No chuck Ingram because Ingram's not there to correct you,
I know, throw me off my ballance here until next Wednesday,
my friend, God bless you, sir, take care, Thank you, Brian,
all the best and to you a fourty three fiftybout
care se the talk station. Prestige Interiors get your kitchener
model done right with Prestige Interiors. When you call Prestige
Interiors or check them out online at Prestige one two three.

(15:58):
You are looking at John Ryan's website. You're looking at
the work that John Ryan has done or facilitated. Of course,
John isn't in there doing carpentry work. But he manages
the crews, gets everything lined up, and it's a juggle
when you think about all the different parts and pieces
that go into a kitchen and modeling project. You're plumbing
and tile work and you know, maybe flooring and all that.

(16:18):
It has to be organized. He has been doing kitchens
almost exclusively for more than thirty years. He knows everything
there is to know about form, function, flow and storage.
He's got great ideas. But even if you just want
to do cabinets and countertops, leave everything generally the same.
He's a great guy to get to work with on
that as well, because he'll stay within your budget help
you out. But in terms of gut rehabs, that's what

(16:40):
we went with him, and man, I'm telling you just
the ideas that he gave us that we incorporated into
our kitchen design. Just absolutely love the work that he
does and you will too. A plus with a BBB
prest He's one two to three dot com is his website.
Tell John Ryan Brian said high can you call him?
Five one three two four seven zero two two nine
two four seven zero two two nine