Judge Napolitano - Free Speech!!

Episode Transcript

Speaker 1 (00:00):
Coming up next, our guest wants to celebrate National Punctuation
Day and points out that it can be a very
big difference in this sentence, A woman without her man
is nothing. With punctuation, a woman without her man is nothing.
The judges next, Chuck Ingbram on fifty five KRC the

(00:23):
talk station.

Speaker 2 (00:27):
Okay, okay, I know Judge Ennen of Voltano every Wednesday
at this time on the five KRC Morning Show for
Constitutional Brilliance. Welcome back, my friend. It's always a pleasure
to have you on the program.

Speaker 3 (00:40):
Watch this punctuation marks, Brian Try.

Speaker 2 (00:46):
It's easy to pay attention to them when you're writing.
Although you know anyways, speech is what it is, free
form speech. And let us start with I know you
had to have seen it. Give me your column, which
is wonderful free speech, and it's discontents that the timing
couldn't be better on this one. Google actually admitted they
their lawyers in a letter to Jim Jordan and members

(01:06):
of Congress that they did, in fact, at the behest
of the Biden administration, dictated what content could be posted
and specifically removed content related to COVID nineteen vaccines mask mandate.
Senator Rand Paul was the subject of one of these
bands on YouTube for his comments that we find out
were actually correct at time that masks don't work, so

(01:29):
they were specifically identifying certain content. And Google parent company
Alphabet admitted that it capitulated to the Biden administration's demands
to censor our speech.

Speaker 4 (01:42):
So we start with basics.

Speaker 3 (01:43):
The First Amendment says Congress shall make no law abridging
the freedom of speech. Today Congress means all government. So
can the White House call up Google? Can the Attorney
General call up a book publisher and say, like what
people are saying on your bulletin board Google, or we
don't like what your authors are putting in their books

(02:05):
and we want you to dial it back. Supreme Court
has been very very clear in this that the answer
to that is no, that the government cannot do indirectly,
either by using a carrot or a stick to a
book publisher or to Google, what the Constitution prohibits it
from doing directly abridging the freedom of speech. I use

(02:28):
the book publisher example because that's the leading case. It's
an old case goes back to nineteen sixty three, but
the law has been consistent since then that the government
can't do that. Google's lawyers obviously told Google to go
along with the by deministration.

Speaker 4 (02:45):
They know the law. All lawyers know the law.

Speaker 3 (02:48):
They should have advised Zuckerberg and others tell the by
deministration to go take a hike, that they can't tell
us what to do. But instead they did it. And
you're quite correct. They not only suppressed.

Speaker 4 (03:05):
People who were.

Speaker 3 (03:07):
Frivolously challenging the prevailing views on vaccines. They suppressed scientific
disagreements on the vaccines, and they suppressed civil liberties like
Senator Randpole disagreements on the vaccine. Rand Pole is in
a unique position because he is a civil libertarian, he

(03:30):
is a member of the Senate, and he's a physician.
He's the last person that they should have suppressed, but
they went after him, and now we know that they
were wrong. So I said this morning on my early
morning Newsmax hit, maybe this Jimmy Kimmel kerfuffle following the

(03:51):
murder of Charlie Kirk will have a happy outcome. Maybe
it's time to revisit the influences on the freedom of speech.
Maybe this is bigger than Jimmy Kimmel. Maybe this is
not a coincidence that Google made this statement yesterday, the
same day that Kimmel came back on air and doubled down.

Speaker 4 (04:11):
On what he said.

Speaker 3 (04:13):
Well, I don't watch the show. I'm sleep at that time.
I probably don't agree with most of what he says,
But like Voltaire, I disagree with what you say, but
we'll defend to the death.

Speaker 4 (04:23):
You're right to say it.

Speaker 2 (04:24):
Amen that and I thought it rather comical. But people
running around screaming that the FCC or Donald Trump directly
was responsible for the termination of Jimmy Kimmel. He was
on television last night, so apparently that had no impact
that if he had the belief that he could control it.

Speaker 4 (04:40):
But more fun when you know.

Speaker 3 (04:41):
The point I tried to make in the column, and
I thank you again for raising it, Brian.

Speaker 4 (04:46):
It's so generous of you.

Speaker 3 (04:48):
It comes out at midnight tonight, is that free speech
doesn't mean free of consequences, because your employer can punish
your speech in a private setting, a non government setting,
but it does mean free of the government. If the
head of the FCC had not weighed in and threatened ABC,

(05:12):
both privately and publicly, there'd be no First Amendment issue.

Speaker 4 (05:15):
Here.

Speaker 3 (05:16):
There is no First Amendment issue with ABC silencing its employee,
just like Fox silence to me, just like Newsmacks could
silence me. Hasn't happened yet, No, that one because the
government's not involved. It's when the government gets involved that
it becomes a First Amendment.

Speaker 2 (05:34):
Issue, Which takes us back to this revelation from Google.
They did capitulate the government demands. They did censor people's content.
Google as a private entity could do that all day long.
Once the government comes in and they capitulate to the
demands of government, doesn't that in prior case I think
supports where I'm going on this. Doesn't that then, because

(05:56):
of the involvement the inextricably intertwined government with Google, the
private entity, does that turned Google into an entity that
must honor the First Amendment because the government runs the rich.

Speaker 4 (06:07):
You know, here's the case law.

Speaker 3 (06:09):
This is another old dog going back to the early
sixties involving a coffee shop in a parking garage in Wilmington, Delaware.
And the closer the private actor Google is intertwined with
the government, the Biden administration, the more symbiotic the relationship

(06:34):
for the mutual benefit of both can cause the private
actor to become what's called a state actor and then
their subject to everything in the Bill of Rights. Now
that state action doctrine has fallen to the wayside because
most states have their own civil rights law, so you

(06:55):
don't have to use.

Speaker 4 (06:56):
The state action.

Speaker 3 (06:57):
Is Google a public accommodation?

Speaker 4 (07:00):
That's the question.

Speaker 3 (07:01):
You know, these same conservative Republicans who are now rejoicing
that Google is acknowledging that it came to the Biden
administration and it was wrong, and that's going to undo
what it did. They're the ones that proposed legislation to
force Google to post certain materials. Well, that's just as wrong,

(07:25):
right as trying to prevent Google from posting. Google's a
private bulletim board.

Speaker 4 (07:30):
The government has nothing to do with it.

Speaker 2 (07:32):
Right, You can't force an entity to speak much in
the same way you can't prevent one from speaking out
of the First Amendment jurisprudence. Now, this leads me to
the ultimate question, because it was something that the specter
of which brought up by Federalist CEO Sean Davis. He said,
Google owes us all damages for what their censorship cost

(07:53):
us a quick we're sorry. Now that they're in trouble.
Isn't going to cut it. Their censorship cost us millions?

Speaker 3 (08:00):
Is there a civil rights condemn Who is this fellow
who says he suffered millions and losses?

Speaker 2 (08:06):
Well, the federal It's a website, much in the way
Zero Hedge got removed from the content from YouTube that
was completely outright banned using a similar circaceans, this.

Speaker 3 (08:18):
Is a website that was kicked off and now erroneously
he probably does have a cause of action.

Speaker 4 (08:23):
I mean, Google is.

Speaker 3 (08:25):
Certainly has enough cash to pay him a few million
or whatever.

Speaker 4 (08:29):
He can demonstrate he lost, and he should go for it.

Speaker 2 (08:31):
Right, But would would not the government also be liable?
Now I could see the government for a violation of
my civil rights, like say, for example, of a federal
officer abuse me, kicked in my front door without a
search warrant, I'd have a cause of action in an
otherwise free of liability federal government. I do believe you can.
Would could the federal government for issuing these demands on
Google and forcing them to remove the conduct also be

(08:53):
responsible liable for a civil rights violation?

Speaker 4 (08:56):
Hey? I doubt it. I doubt it.

Speaker 3 (09:00):
The person that was harmed would have to show that
the government was trying to harm him, just like the
guy that kicks in your door is trying to destroy
your house and trying to harm you.

Speaker 4 (09:13):
It's a very high bar.

Speaker 3 (09:15):
I mean, it might be worth suing the government, but
I don't think you'll get the first base. The government
has made it very, very difficult for the people that
it harms to seek compensation for those harms.

Speaker 2 (09:26):
Well, the only other component of this I want address
before we part company today is the comments from Representative
James Clyburn, who is trying to make some sort of
distinction between what was then perceived to be the FCC's
firing Jimmy Kimmel and the removal by Google of all
this content related to coronavirus, the vaccines as well as
mask mandates. He draws a distinction, So, well, that's different

(09:47):
because of the pandemic. In other words, you can use
the FIR. You can justify violating civil rights and taking
away a freedom of speech in pandemic times.

Speaker 4 (09:56):
And I would think this is.

Speaker 3 (09:58):
The language of salitarians, and it's used on both sides. Yes,
it's an emergency, so the Bill of Rights doesn't apply.
I mean, I heard that from Governor Murphy in New Jersey,
who's pretty far on the left wing of the Democratic Party,
and we hear it from the White House as well.
Guess what, there's no emergency exception to the Bill of

(10:20):
Rights that's been the law since eighteen sixty six.

Speaker 2 (10:24):
And also we could go back to COVID and there's
no there's no emergency violation or no emergency suspension of
our freedom of right to assembly an exercise of religion.

Speaker 4 (10:35):
Correct, correct, Judge, I own my own face.

Speaker 3 (10:38):
The government can't tell me what to do with it.

Speaker 2 (10:41):
Well, if one thing has become of all this, your honor,
we at least got a welcome civics lesson in the
area of First Amendment jurisprudence.

Speaker 4 (10:50):
I hope.

Speaker 3 (10:50):
So the pleasure, Brian, Thank you very much, my dear friend.
And watch that punctuation, because somebody is looking over your shoulder.

Speaker 2 (10:58):
Talk next week, Judge the fold, thanks for the time.
Every week we'll look forward to.

Speaker 3 (11:03):
I gotta tell you we Yankee fans who hate the
Mets are rooting for the Cincinnati resident. I know there's
only five games left, but every morning I look at
those standings.

Speaker 2 (11:14):
It's like the power of prayer, Your honor, We'll take
all the support we can get and we welcome it.
God bless you sir. Until next week, have a great one,