November 12, 2025 • 13 mins
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Speaker 1 (00:00):
Anyway, so we have Strecker around for he looks into
these things.
Speaker 2 (00:07):
Thank you, Joe.
Speaker 1 (00:09):
We are back to a recurring theme with the column today,
which is can the president disrupt free speech? And I
had you know, I went back and forth just a
little bit yesterday. I had some outstanding questions. We're talking
about the right to peace leassemble, we're talking about the
First Amendment, right to free speech. We're talking about prior
restraint on free speech. And welcome back one of our
favorite cases, Brandenburg versus Ohio. Let's walk through the history
(00:31):
of this, because I did not real I couldn't recall
the president Woodrow Wilson arrested people for merely reading the
Declaration of Independence.
Speaker 3 (00:38):
Well, not only did he arrest people for reading the
Declaration of Independence, he arrested some of his former students
when he was the president of Princeton. They were freshmen.
By the time they were seniors. He was the president
of the United States. He was only the governor of
New Jersey for eighteen months when he ran for and
(00:58):
was elected president. Now, I don't know if they did
this to taunt him, if they did this to deter
people from registering for the draft. And he was of
the view that any speech which deterred people from registering
for the draft, men for registering for the draft in
time of war was an interference with the war effort,
(01:20):
and therefore was criminal. When he was challenged in a
press conference that there are two interesting footnotes to this.
Speaker 2 (01:27):
One is this one.
Speaker 3 (01:28):
When he was challenged in a press conference about how
he could arrest people for speech. This former professor of
constitutional law at Princeton University said.
Speaker 2 (01:39):
Read the First Amendment.
Speaker 3 (01:41):
It says Congress shall make no law bridging the freedom
of speech. There's nothing in there about the president. Now
you're laughing because if you had given that answer in
an exam in constitutional law in a law school, you
had flunk answer. Said that okay, because he's saying that
(02:03):
because he was not restrained, he was at liberty to
do it. This is the Wilsonian view of the government.
It's the opposite of the Madisonian view. Madisonian, which was,
with the exception of the Civil War years, pretty much
followed from Washington up to the time of Wilson, was
that the federal government is limited to do that which
(02:25):
is it is expressly authorized to do in the Constitution.
The Wilsonian view is the federal government can do anything
for which there is a national problem, and the national
political will accept that which is expressly prohibited to it
in the Constitution. So these two views of the federal
(02:46):
government are the opposite. The other interesting fun fact who
arrested these Princeton students A young federal agent by the
name of John Edgar Hoover.
Speaker 1 (03:01):
Okay, well that answers the question right there. Hey, ja.
Speaker 3 (03:06):
So as a result of not this arrest, but many others,
the DOJ Wilson's Department of Justice persuaded I'm happy not
a reluctant Supreme Court to permit these suppressions. First, they
came up with a bad tendency test. If speech would
(03:28):
have a tendency to the neutral ear to incite violence,
the speech was criminal. Then they came up with a
clear and present danger test. If the speech is a
clear and present danger to violence or to national security,
then the speech is criminal. These two monstrosities existed for
fifty years from nineteen nineteen until nineteen sixty nine. When
(03:53):
in Hamilton County, Ohio, a crackpot I forget his first name,
last name Brandenburg. I think it was Alvin gave an
incendiary speech in which he condemned blacks, and he condemned
Jews and said, we're going to march to Washington, and
they run the government, and we're going to take it
back from them. He was prosecuted in a Hamilton County
(04:17):
court and convicted of criminal syndicalism basically speech which encourages violence.
Upheld by the Ohio Appellate Court, upheld by the Ohio
Supreme Court, unanimously reversed by the Federal Supreme Court in
validating state and federal criminal syndicalism laws and giving us
(04:39):
the Brandenburg test, no more bad tendency test, no more
clear and present danger test. Now all innocuous speech is protected,
and all speech is innocuous when there is time.
Speaker 2 (04:54):
He were time for.
Speaker 3 (04:56):
More speech to rebutt it, even if there isn't any
speech that robuts it. If there is time for it,
then the speaker is not liable for the consequences of
his speech, and his speech is protected.
Speaker 2 (05:09):
That's the law today. Brandenburg was so cited as recently
as last.
Speaker 3 (05:12):
Year by the same nine justices who are sitting today.
Notwithstanding all of this, President Trump wants to bring back
the bad tendency and clear and present danger days because
he has directed federal law enforcement to disrupt.
Speaker 2 (05:31):
I put the word in caps.
Speaker 3 (05:32):
I didn't think my editors would let me get away
with it, but they did to disrupt the speeches of
those whom the president believes are anti Christian, anti capitalist,
anti American. He singled out Antifa, but the language has
brought enough to cover almost any group that the law
enforcement deems to be anti Christian, anti capitalist, anti American.
Speaker 2 (05:56):
Look, I'm an old fashioned pre Vatican too Latin mass
attending world Roman Catholic. You know of that. I am
the antithesis of anti Christian.
Speaker 3 (06:04):
But you have the right to be anti Christian in America,
and you have the right to express that.
Speaker 1 (06:10):
Indeed, I'd embrace that all day long. Before we get
to some of the subtleties on this, I'm just wondering
if there is a particular case or an illustration of
those situations that where someone has been prosecuted or held
criminally response for whatever because there wasn't enough time to
(06:32):
ject counter sees.
Speaker 3 (06:33):
The leading case is called Turman Yellow versus Chicago, which
is nineteen fifties, so it's before it's a precursor to
and leading up to Brandenburg.
Speaker 2 (06:46):
But Turman Yellow was a Roman.
Speaker 3 (06:48):
Catholic priest who hated Harry Truman and condemned his use
of atomic weapons and condemned his failure for father term.
And Yellow got a little off the rails to crack
down on communists in the government. This is a Joe
McCarthy era now, and he rented a hall, got a
(07:09):
permit from the Chicago Police department, gave an incredibly incendiary
speech saying horrible things about Harry Truman, and the mob
descended upon him, trashed the hall, and the police barely
got him out of there with his life. Well, they
got him out of there and brought him into a
patty wagon and arrested him for incendiary.
Speaker 1 (07:33):
Speech, inciting a riot, basically right.
Speaker 3 (07:36):
And he was convicted in a Chicago local court, upheld
in an Illinois appeals court. The Supreme Court of Illinois
didn't even want to touch it. And then it went
to the US Supreme Court five to four, not unanimous,
so it's a different court. At the time we get
to Brandenburg five to four reversing his conviction.
Speaker 2 (07:55):
Listen to this.
Speaker 3 (07:57):
First Amendment speech about the government is so important to
our democracy.
Speaker 2 (08:04):
It will even tolerate a little bit of violence.
Speaker 3 (08:07):
Wow, Now they didn't arrest the people that trashed the hall, right,
they arrested the Catholic priests that got the permit to
have the gathering.
Speaker 1 (08:18):
All right, now, as this applies to Antipha, the st
hypothetical I pose to you, and you wrote in the
article that it is a political philosophy. Most certainly is
it's Marxist, it's communists. Label it whatever you want to
label it is it is not something divinely inspired. Isn't
arguing about a particular issue or a law that should
be passed. This is the fundamental nature of our government.
(08:39):
They don't like it. They want to undermine it. They
hate capitalism, so they can scream about that all day long.
That's political speech. If, however, they are and organized in
some capacity, they're receiving money and funding an organization, they
belong to a particular group. That group's goal is to
tear down the United States of America like a terrorist
organization would. If they are organized and they commit two
(09:03):
or more action further and criminal actions furtherance of their goal,
are they not subject to prosecution for what there It'll
be for what they're doing, though, I said, you can
label the mafia it's organized crime. You can go after
their activities, you can label them antifa. If they are
organized and they do commit criminal acts, you can go
after them as an entity. So does that still stand.
Speaker 3 (09:26):
Well, the short answer I think to your question is yes.
If this is an organized entity and it commits two
or more acts of violence, it then subjects itself to
the penalties under RICO, the Racketeer Influence Corrupt Organization Act.
Speaker 2 (09:42):
Why did they have.
Speaker 3 (09:43):
To use Rico, an Italian nickname.
Speaker 1 (09:49):
Yeah, because this.
Speaker 2 (09:51):
Was originally written to cripple the Mob.
Speaker 3 (09:55):
And thanks to its use by then US Attorney Rudy Giuliani,
it was used to bankrupt the mob. So two or
more criminal events contributing to an enterprise, a financial enterprise
subject the financial enterprise to treble damages. It could so
(10:16):
be used. There are criminal Rico statutes and civil Rico statutes.
I don't know what this antifa is. I only know
that when Chris Ray, the former head of the death
of the FBI, last testified before Congress, which is now
a winter of twenty four, after Donald Trump had defeated
(10:38):
Kamala Harrison, and mister Ray knew he'd better resign or
he'd be fired in a month, he said. FBI intel
found that Antifa is not an organized group.
Speaker 2 (10:52):
It's not even a group. It's just it's just an idea.
Speaker 3 (10:55):
There's no central authority, there's no central command, there's no
central treasury. That's the last intel made public that we
have on this. Whether there is subsequent intel or not,
I don't know. It hasn't been made public.
Speaker 1 (11:08):
Well, there's a lot of research out there, but the
Tides Foundation, Sous Foundations, all these very very leftist, pro communist,
pro globalist organizations which seem to be behind the funding.
At least that's what it's been largely suggested. Now. I
suppose this will all play out ultimately if it's investigated.
But in so far as raised, can you know conclusions.
Perhaps it was the timing, they hadn't looked into it yet.
(11:30):
But I know in among my listening audience, the man
who's behind Arctic frost doesn't carry a lot of weight
in terms of his.
Speaker 3 (11:38):
Well, there's no question about that. I mean, the Arctic
for ust thing is very unusual. Senator Ted Cruz, who's
a graduate of Harvard law school who clerked of the
Supreme Court of the United States but doesn't practice law, said,
you guys tapped my phones. They didn't tap his phones.
(12:00):
They got metadata who called home from?
Speaker 2 (12:04):
What number? Two? What number? And for how long?
Speaker 3 (12:06):
Now I condemn that, but the statutes for which Senator
Cruz voted here we go remit the government to do
that without a subpoena or a search warrant.
Speaker 1 (12:17):
Thank you for reminds if.
Speaker 3 (12:19):
The government wants the telecom not to tell the customer
that the government has metadata, they go to a judge
and the statute permits that. I just don't think that
these members of Congress who voted for this ever imagined
it would be used against them exactly.
Speaker 1 (12:38):
But the opportunity that it could be was enough to
say no in the first place. And you've pointed out
time and time agoin exactly the way it should have been.
Speaker 3 (12:45):
One of those who screamed the loudest, and I'm not
a fan of his, but I have to be into ellectually,
be honest, he did vote against this all the.
Speaker 2 (12:52):
Time, that Senator Josh Walley of Missouri.
Speaker 3 (12:56):
But these authorities that Jack Smith used, many of them
go back, some go back to the Reagan era. Most
go back to the Patriot Act era, right after nine
to eleven. They're reprehensible. They all violate the Fourth Amendment.
They've never been passed upon by the Supreme Court, but
Congress voted for it, and most of them expire every
(13:16):
five years and Congress reenacts them every five years. You'll
see that happening during Donald Trump's current term.
Speaker 1 (13:23):
Always get the truth from you, Judge and Napoloton will
be listening for Judging Freedom your podcast. We're out of time.
I would like to elaborate on that, but you know
how much I love having you in the show, and
I certainly appreciate your willingness to come on every week.
Can the President disrupt free speech? Find the calumn tonight
after midnight, Judge, until next week, have a fantastic week,
my friend.
Speaker 2 (13:41):
Thank you, Brian, all the best, go ID.
Speaker 1 (13:43):
Love you forty five
Anyway, so we have Strecker around for he looks into
these things.
Speaker 2 (00:07):
Thank you, Joe.
Speaker 1 (00:09):
We are back to a recurring theme with the column today,
which is can the president disrupt free speech? And I
had you know, I went back and forth just a
little bit yesterday. I had some outstanding questions. We're talking
about the right to peace leassemble, we're talking about the
First Amendment, right to free speech. We're talking about prior
restraint on free speech. And welcome back one of our
favorite cases, Brandenburg versus Ohio. Let's walk through the history
(00:31):
of this, because I did not real I couldn't recall
the president Woodrow Wilson arrested people for merely reading the
Declaration of Independence.
Speaker 3 (00:38):
Well, not only did he arrest people for reading the
Declaration of Independence, he arrested some of his former students
when he was the president of Princeton. They were freshmen.
By the time they were seniors. He was the president
of the United States. He was only the governor of
New Jersey for eighteen months when he ran for and
(00:58):
was elected president. Now, I don't know if they did
this to taunt him, if they did this to deter
people from registering for the draft. And he was of
the view that any speech which deterred people from registering
for the draft, men for registering for the draft in
time of war was an interference with the war effort,
(01:20):
and therefore was criminal. When he was challenged in a
press conference that there are two interesting footnotes to this.
Speaker 2 (01:27):
One is this one.
Speaker 3 (01:28):
When he was challenged in a press conference about how
he could arrest people for speech. This former professor of
constitutional law at Princeton University said.
Speaker 2 (01:39):
Read the First Amendment.
Speaker 3 (01:41):
It says Congress shall make no law bridging the freedom
of speech. There's nothing in there about the president. Now
you're laughing because if you had given that answer in
an exam in constitutional law in a law school, you
had flunk answer. Said that okay, because he's saying that
(02:03):
because he was not restrained, he was at liberty to
do it. This is the Wilsonian view of the government.
It's the opposite of the Madisonian view. Madisonian, which was,
with the exception of the Civil War years, pretty much
followed from Washington up to the time of Wilson, was
that the federal government is limited to do that which
(02:25):
is it is expressly authorized to do in the Constitution.
The Wilsonian view is the federal government can do anything
for which there is a national problem, and the national
political will accept that which is expressly prohibited to it
in the Constitution. So these two views of the federal
(02:46):
government are the opposite. The other interesting fun fact who
arrested these Princeton students A young federal agent by the
name of John Edgar Hoover.
Speaker 1 (03:01):
Okay, well that answers the question right there. Hey, ja.
Speaker 3 (03:06):
So as a result of not this arrest, but many others,
the DOJ Wilson's Department of Justice persuaded I'm happy not
a reluctant Supreme Court to permit these suppressions. First, they
came up with a bad tendency test. If speech would
(03:28):
have a tendency to the neutral ear to incite violence,
the speech was criminal. Then they came up with a
clear and present danger test. If the speech is a
clear and present danger to violence or to national security,
then the speech is criminal. These two monstrosities existed for
fifty years from nineteen nineteen until nineteen sixty nine. When
(03:53):
in Hamilton County, Ohio, a crackpot I forget his first name,
last name Brandenburg. I think it was Alvin gave an
incendiary speech in which he condemned blacks, and he condemned
Jews and said, we're going to march to Washington, and
they run the government, and we're going to take it
back from them. He was prosecuted in a Hamilton County
(04:17):
court and convicted of criminal syndicalism basically speech which encourages violence.
Upheld by the Ohio Appellate Court, upheld by the Ohio
Supreme Court, unanimously reversed by the Federal Supreme Court in
validating state and federal criminal syndicalism laws and giving us
(04:39):
the Brandenburg test, no more bad tendency test, no more
clear and present danger test. Now all innocuous speech is protected,
and all speech is innocuous when there is time.
Speaker 2 (04:54):
He were time for.
Speaker 3 (04:56):
More speech to rebutt it, even if there isn't any
speech that robuts it. If there is time for it,
then the speaker is not liable for the consequences of
his speech, and his speech is protected.
Speaker 2 (05:09):
That's the law today. Brandenburg was so cited as recently
as last.
Speaker 3 (05:12):
Year by the same nine justices who are sitting today.
Notwithstanding all of this, President Trump wants to bring back
the bad tendency and clear and present danger days because
he has directed federal law enforcement to disrupt.
Speaker 2 (05:31):
I put the word in caps.
Speaker 3 (05:32):
I didn't think my editors would let me get away
with it, but they did to disrupt the speeches of
those whom the president believes are anti Christian, anti capitalist,
anti American. He singled out Antifa, but the language has
brought enough to cover almost any group that the law
enforcement deems to be anti Christian, anti capitalist, anti American.
Speaker 2 (05:56):
Look, I'm an old fashioned pre Vatican too Latin mass
attending world Roman Catholic. You know of that. I am
the antithesis of anti Christian.
Speaker 3 (06:04):
But you have the right to be anti Christian in America,
and you have the right to express that.
Speaker 1 (06:10):
Indeed, I'd embrace that all day long. Before we get
to some of the subtleties on this, I'm just wondering
if there is a particular case or an illustration of
those situations that where someone has been prosecuted or held
criminally response for whatever because there wasn't enough time to
(06:32):
ject counter sees.
Speaker 3 (06:33):
The leading case is called Turman Yellow versus Chicago, which
is nineteen fifties, so it's before it's a precursor to
and leading up to Brandenburg.
Speaker 2 (06:46):
But Turman Yellow was a Roman.
Speaker 3 (06:48):
Catholic priest who hated Harry Truman and condemned his use
of atomic weapons and condemned his failure for father term.
And Yellow got a little off the rails to crack
down on communists in the government. This is a Joe
McCarthy era now, and he rented a hall, got a
(07:09):
permit from the Chicago Police department, gave an incredibly incendiary
speech saying horrible things about Harry Truman, and the mob
descended upon him, trashed the hall, and the police barely
got him out of there with his life. Well, they
got him out of there and brought him into a
patty wagon and arrested him for incendiary.
Speaker 1 (07:33):
Speech, inciting a riot, basically right.
Speaker 3 (07:36):
And he was convicted in a Chicago local court, upheld
in an Illinois appeals court. The Supreme Court of Illinois
didn't even want to touch it. And then it went
to the US Supreme Court five to four, not unanimous,
so it's a different court. At the time we get
to Brandenburg five to four reversing his conviction.
Speaker 2 (07:55):
Listen to this.
Speaker 3 (07:57):
First Amendment speech about the government is so important to
our democracy.
Speaker 2 (08:04):
It will even tolerate a little bit of violence.
Speaker 3 (08:07):
Wow, Now they didn't arrest the people that trashed the hall, right,
they arrested the Catholic priests that got the permit to
have the gathering.
Speaker 1 (08:18):
All right, now, as this applies to Antipha, the st
hypothetical I pose to you, and you wrote in the
article that it is a political philosophy. Most certainly is
it's Marxist, it's communists. Label it whatever you want to
label it is it is not something divinely inspired. Isn't
arguing about a particular issue or a law that should
be passed. This is the fundamental nature of our government.
(08:39):
They don't like it. They want to undermine it. They
hate capitalism, so they can scream about that all day long.
That's political speech. If, however, they are and organized in
some capacity, they're receiving money and funding an organization, they
belong to a particular group. That group's goal is to
tear down the United States of America like a terrorist
organization would. If they are organized and they commit two
(09:03):
or more action further and criminal actions furtherance of their goal,
are they not subject to prosecution for what there It'll
be for what they're doing, though, I said, you can
label the mafia it's organized crime. You can go after
their activities, you can label them antifa. If they are
organized and they do commit criminal acts, you can go
after them as an entity. So does that still stand.
Speaker 3 (09:26):
Well, the short answer I think to your question is yes.
If this is an organized entity and it commits two
or more acts of violence, it then subjects itself to
the penalties under RICO, the Racketeer Influence Corrupt Organization Act.
Speaker 2 (09:42):
Why did they have.
Speaker 3 (09:43):
To use Rico, an Italian nickname.
Speaker 1 (09:49):
Yeah, because this.
Speaker 2 (09:51):
Was originally written to cripple the Mob.
Speaker 3 (09:55):
And thanks to its use by then US Attorney Rudy Giuliani,
it was used to bankrupt the mob. So two or
more criminal events contributing to an enterprise, a financial enterprise
subject the financial enterprise to treble damages. It could so
(10:16):
be used. There are criminal Rico statutes and civil Rico statutes.
I don't know what this antifa is. I only know
that when Chris Ray, the former head of the death
of the FBI, last testified before Congress, which is now
a winter of twenty four, after Donald Trump had defeated
(10:38):
Kamala Harrison, and mister Ray knew he'd better resign or
he'd be fired in a month, he said. FBI intel
found that Antifa is not an organized group.
Speaker 2 (10:52):
It's not even a group. It's just it's just an idea.
Speaker 3 (10:55):
There's no central authority, there's no central command, there's no
central treasury. That's the last intel made public that we
have on this. Whether there is subsequent intel or not,
I don't know. It hasn't been made public.
Speaker 1 (11:08):
Well, there's a lot of research out there, but the
Tides Foundation, Sous Foundations, all these very very leftist, pro communist,
pro globalist organizations which seem to be behind the funding.
At least that's what it's been largely suggested. Now. I
suppose this will all play out ultimately if it's investigated.
But in so far as raised, can you know conclusions.
Perhaps it was the timing, they hadn't looked into it yet.
(11:30):
But I know in among my listening audience, the man
who's behind Arctic frost doesn't carry a lot of weight
in terms of his.
Speaker 3 (11:38):
Well, there's no question about that. I mean, the Arctic
for ust thing is very unusual. Senator Ted Cruz, who's
a graduate of Harvard law school who clerked of the
Supreme Court of the United States but doesn't practice law, said,
you guys tapped my phones. They didn't tap his phones.
(12:00):
They got metadata who called home from?
Speaker 2 (12:04):
What number? Two? What number? And for how long?
Speaker 3 (12:06):
Now I condemn that, but the statutes for which Senator
Cruz voted here we go remit the government to do
that without a subpoena or a search warrant.
Speaker 1 (12:17):
Thank you for reminds if.
Speaker 3 (12:19):
The government wants the telecom not to tell the customer
that the government has metadata, they go to a judge
and the statute permits that. I just don't think that
these members of Congress who voted for this ever imagined
it would be used against them exactly.
Speaker 1 (12:38):
But the opportunity that it could be was enough to
say no in the first place. And you've pointed out
time and time agoin exactly the way it should have been.
Speaker 3 (12:45):
One of those who screamed the loudest, and I'm not
a fan of his, but I have to be into ellectually,
be honest, he did vote against this all the.
Speaker 2 (12:52):
Time, that Senator Josh Walley of Missouri.
Speaker 3 (12:56):
But these authorities that Jack Smith used, many of them
go back, some go back to the Reagan era. Most
go back to the Patriot Act era, right after nine
to eleven. They're reprehensible. They all violate the Fourth Amendment.
They've never been passed upon by the Supreme Court, but
Congress voted for it, and most of them expire every
(13:16):
five years and Congress reenacts them every five years. You'll
see that happening during Donald Trump's current term.
Speaker 1 (13:23):
Always get the truth from you, Judge and Napoloton will
be listening for Judging Freedom your podcast. We're out of time.
I would like to elaborate on that, but you know
how much I love having you in the show, and
I certainly appreciate your willingness to come on every week.
Can the President disrupt free speech? Find the calumn tonight
after midnight, Judge, until next week, have a fantastic week,
my friend.
Speaker 2 (13:41):
Thank you, Brian, all the best, go ID.
Speaker 1 (13:43):
Love you forty five
Brian Thomas News
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