We previously discussed the defamation lawsuit against CNN and the curious effort to use Taliban law to dismiss the lawsuit by Navy veteran Zachary Young. The litigation has not been going well for the network and it just lost another key motion to block an effort to depose Jake Tapper. Worse yet, the court appears to have questioned the veracity of the host in a sworn deposition on his lack of knowledge over the financial subject matter of the deposition.
CNN recently lost a recent major ruling when the court found that there was evidence of malice by CNN to support the higher standard needed for defamation. The evidence in the case is remarkably bad for the network after discovery of internal memoranda and emails.
The report at the heart of the case aired on a Nov. 11, 2021, segment on CNN’s “The Lead with Jake Tapper” and was shared on social media and (a different version) on CNN’s website. In the segment, Tapper tells his audience ominously how CNN correspondent Alex Marquardt discovered “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.”
Marquardt piled on in the segment, claiming that “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” to flee the country. He then named Young and his company as the example of that startling claim.
The damages in the case could be massive but Young had to satisfy the higher New York Times v. Sullivan standard of “actual malice” with a showing of knowing falsehood or a reckless disregard of the truth. Judge Roberts found that “Young sufficiently proffered evidence of actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages.”
The evidence included messages from Marquardt that he wanted to “nail this Zachary Young mfucker” and thought the story would be Young’s “funeral.” After promising to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!” Likewise, CNN senior editor Fuzz Hogan described Young as “a shit.”
As is often done by media, CNN allegedly gave Young only two hours to respond before the story ran. It is a typical ploy of the press to claim that they waited for a response while giving the target the smallest possible window. In this case, Young was able to respond in the short time and Marquardt messaged a colleague, “fucking Young just texted.”
The case now appears to have moved into a second discovery period over CNN’s finances. The plaintiff’s counsel wants to depose Tapper. I can certainly understand Tapper’s counsel in trying to block the deposition on finances. I am not sure how much Tapper would know about the finances, but the court clearly did not take well to his declaration.
NewsBusters previously reported, CNN had filed a motion for a protective order in which CNN counsel Allison Lovelady insisted that the Plaintiff only wanted a deposition so they could use it to “harass CNN and Mr. Tapper.” However, the court shot down the effort and reportedly stated “I kind of have a hard time believing what Mr. Tapper put in that declaration.” Since that is a sworn declaration made under penalty of perjury, it was a stinging rebuke.
Unlike the earlier depositions, this stage is confined to finances and possible penalties. The defense team clearly believes the deposition is an effort to re-open fact deposition testimony that should be now foreclosed. There is always a risk to any witness from the added exposure to renewed questioning. However, it is hard to get a protective order on conclusory assurances of no relevant knowledge. The court clearly believes that Tapper could have some relevant information since he holds one of the most lucrative contracts at CNN and is familiar with the corporate finances in relation to his show.
Tapper’s counsel also attempted other “Hail Mary” motions seeking to delay any deposition until rulings on other cases dealing with punitive damages. CNN lost a critical motion in seeking to bar punitive damages. That is, of course, the big-ticket item for the network in this type of case. To limit Young to compensatory damages would make any damages manageable for the company, even if a verdict would damage its reputation.
In one tense exchange, the counsel argued over a motion to force Young to appear personally for settlement discussions. His counsel explained that it was difficult for him because of an injury he sustained while in the Navy, which made it difficult to sit for long periods. CNN’s lead counsel Deanna K. Shullman shot back “So do I, your Honor!” “I have to leave the State of Florida to get to Bay County. CNN has to travel from the state of Georgia.” CNN prevailed on that and one other motion on an extension of time. CNN is trying to delay the January trial date, but Young’s counsel has indicated that it wants to stick with that date and has little interest in settlement.
Tapper, however, will now have to appear on the financial questions in the ongoing litigation.
Local law enforcement officers stand guard outside of former President Donald Trump’s Mar-a-Lago estate in Palm Beach, Florida, on Aug. 9, 2022, the day after it was raided by the FBI in what Trump called an act of “prosecutorial misconduct.” (Giorgio Viera/AFP/Getty Images)
Harold Hutchison is a contributor to The Daily Caller News Foundation.
DAILY CALLER NEWS FOUNDATION—George Washington University law professor Jonathan Turley said Monday that former President Donald Trump would find it “difficult to prevail” in his potential $100 million suit against the Justice Department over a raid for classified documents at his Mar-a-Lago estate in Palm Beach, Florida.
Trump’s attorneys filed an administrative claim with the Justice Department over the Aug. 8, 2022, raid on Mar-a-Lago and the subsequent indictment secured by special counsel Jack Smith on Monday, a preliminary step before actually suing, that accuses the FBI and DOJ of “malicious political prosecution aimed at affecting an electoral outcome to prevent former President Donald Trump from being reelected,” the New York Post reported.
Turley noted that, like Trump as president, the DOJ has “[its] own form of immunity,” which could come into play should Trump’s lawyers actually file a lawsuit.
“Well, I think he is going to find greater political traction than legal traction on this type of case. The odds are against him,” Turley said. “This is a very difficult type of case to prevail on against the Justice Department. They’re given their own form of immunity, ironically, for discretionary functions.”
“Now, to get around that, what the Trump team is saying is that the Supreme Court has established that this was unconstitutional, that there are privileges or protections here, that you shouldn’t have gone forward with this,” Turley continued.
“That remains an issue on appeal as to what extent the president has those protections, the Supreme Court itself said, at least with regards to the presidential immunity aspects that they have not ruled on this previously. So, this is the type of area the courts tend to not like to be pulled into. So, the odds are against the Trump team on this. What they do get potentially is discovery, but that’s a two-way street. The Department of Justice then gets discovery, as well, against the Trump team.”
U.S. District Court Judge Aileen Cannon of the Southern District of Florida dismissed the charges against Trump in the classified documents case in July, ruling that Smith was unlawfully appointed as special counsel. Cannon previously ordered the appointment of a special master to review documents seized during the Mar-a-Lago raid, but the ruling was later overturned on appeal by the U.S. Court of Appeals for the 11th Circuit.
“The Supreme Court said that you are not protected for acts that are personal in nature, but you’re also not protected for official acts that are done for personal reasons. That’s a sort of gray area,” Turley said. “They established these three sets of cases, and the courts have to determine where this falls. Now the court in Florida did dismiss this case, and the Trump team has arguments here that are not frivolous.”
The law professor said that even with Trump’s cooperation with some FBI requests prior to the raid, he may not have a good case.
“The bets on this one have got to go in favor of the Justice Department,” Turley said.
Below is my column in The Hill on my call for a bill that would bar federal funding of any program and grant to censor, blacklist, or target individuals or sites based on their content. It is time to get the U.S. government out of the censorship business. The column discusses the proposal in my new book, “The Indispensable Right: Free Speech in an Age of Rage” to block any further funding for the current system of corporate, academic, and government programs targeting opposing or dissenting views.
Here is the column:
It is time to get the United States out of the censorship business for good. In the last three years, the House of Representatives has disclosed a massive censorship system run in part with federal funding and with coordination with federal officials. A federal court described this system as truly “Orwellian.”
The Biden Administration has made speech regulation a priority in targeting disinformation, misinformation or malinformation. President Joe Biden even said that companies refusing to censor citizens were “killing people.” His administration has now created an anti-free speech record that is only rivaled by the Adams Administration, which used the Alien and Sedition Acts to arrest political opponents.
Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, is an example of how speech controls and censorship have become mainstream. Her agency was created to work on our critical infrastructure, but Easterly declared that the mandate would now include policing “our cognitive infrastructure.” That includes combating “malinformation,” or information “based on fact, but used out of context to mislead, harm, or manipulate.”
I have testified for years about the censorship system. For much of that time, Democrats insisted that there was no proof of any coordination or funding from the government. Such evidence did indeed exist, but Democrats worked to block any investigation to confirm what we already knew about government officials targeting individuals and groups for throttling, bans, and blacklisting.
Then Elon Musk bought Twitter. The release of the Twitter Files destroyed any plausible deniability of the government’s role in this censorship system. Various agencies had employees working with social media companies to target those with opposing or disfavored views. At the same time, we learned of grants from the federal government supporting blacklisting and targeting operations.
That includes efforts to quietly choke off the revenue of disfavored sites by pressuring advertisers and donors.
While companies like Facebook have continued to fight to conceal their coordination with the government, the Twitter Files pulled back the curtain to expose the system. Indeed, Democrats largely abandoned their denials and turned to full-throated defenses of censorship, even calling free speech advocates “Putin-lovers” and “insurrectionist sympathizers.”
In 1800, Thomas Jefferson defeated John Adams in the only election where free speech was a primary issue for voters. It should be again. Vice President Kamala Harris is known as a supporter for these censorship and blacklisting operations. She can now defend that record and convince Americans that they need to have less free speech. This debate should ideally focus on one simple legislative proposal. In my new book, I suggest various measures that can regain the ground that we have lost on free speech. One such measure is a federal law that would ban any federal funding of any offices or programs (government, academic, or corporate) that rate, target, censor, throttle, or seek to take adverse action against individuals or groups based on their viewpoints in public forums or social media.
There can be easy exceptions to this ban for individuals or groups engaging in criminal conduct or unlawful foreign interference with elections. Threatening individuals or trafficking in child pornography constitute conduct, not speech. They are criminal acts under the federal code. Nothing in this law would prevent the government from speaking in its own voice. If Secretary of Homeland Security Alejandro Mayorkas wants to challenge claims made about him or his agency, he can do so on the agency website or make his case to the media. That is the essence of free speech. What he cannot do is create a Disinformation Governance Board to regulate the speech of citizens or groups.
In my prior testimony to Congress, I warned about the use of what I called “censorship by surrogate” through which agencies did indirectly what they are barred from doing directly under the First Amendment.
This new law will not put an end to the burgeoning anti-free speech movement. It will not end the new market for groups making millions in seeking to silence or strangle sites with opposing views. However, it will create a wall of separation of the government from censorship systems.
It would also offer a simple and clear line for the 2024 election. Candidates will have to take sides on free speech. If candidates like Harris want to continue to support the government in blacklisting or censoring citizens, they should own it. We spent years of politicians engaging in cynical denials of the government’s role in censorship. If these politicians are “all in” with censorship, then they should be honest about it and let voters make the same choice that was made in 1800.
With billions to play with and enabling allies in Congress to conceal federal operations, speech regulation is an irresistible temptation for the government. We have seen how this temptation quickly becomes an insatiable appetite for government officials seeking to silence rather than answer critics.
Let’s get our government out of the business of rating, throttling blacklisting, and censoring citizens. It is time to pass a free speech protection act.
In my new book on free speech, I discuss at length how the mainstream media has joined an alliance with the government and corporations in favor of censorship and blacklisting. The Washington Post, however, appears to be taking its anti-free speech campaign to a new level with open calls for a crackdown. The newspaper offered no objection or even qualification after its reporter, Cleve Wootson Jr., appeared to call upon the White House to censor the interview of Elon Musk with former President Donald Trump. Under the guise of a question, Wootson told White House Press Secretary Karine Jean-Pierre that censoring its leading political opponent is “an America issue.”
During Monday’s press briefing, the Washington Post’s Cleve Wootson Jr. flagged the interview and said“I think that misinformation on Twitter is not just a campaign issue…it’s an America issue.” After making that affirmative statement, Wootson then asked
“…What role does the White House, or the president have in sort of stopping that or stopping the spread of that or sort of intervening in that? Some of that was about campaign misinformation, but, you know, it’s a wider thing, right?”
Note how his question was really a political statement. Wootson begins by stating as a fact that Musk and X are engaging in disinformation, and it is a threat to the country. He then asks a perfunctory softball question at the end to maintain appearances. Jean-Pierre’s response was equally telling. While noting that this is a private company, she praised the Washington Post for calling for action, saying “[i]t is incredibly important to call that out, as you’re doing. I just don’t have any specifics on what we have been doing internally.”
So, let’s recap. The Washington Post used a White House presser to call for censorship of one of the leading candidates for the White House and then demanded to know what the White House would do about it. The censorship was framed as an “America issue.”
There was a time when a reporter calling for censorship of a political opponent would have been a matter for immediate termination in the media. Instead, the newspaper that prides itself on the slogan “Democracy dies in Darkness,” has been entirely silent. No correction. No qualification. The Washington Post has long run columns supporting censorship of information that it deems disinformation or misinformation. For many of us in the free speech community, it has become one of the most hostile newspapers to free speech values.
Now censorship has become “an America issue” for the Washington Post. The collapse of any semblance of support for free speech is complete.
The call for censorship for disinformation is ironic given the Post’s publication of a series of false stories and conspiracy theories. When confronted about columnists with demonstrably false statements, the Post simply shrugged. One of the most striking examples was after its columnist Philip Bump had a meltdown in an interview when confronted over past false claims. After I wrote a column about the litany of such false claims, the Post surprised many of us by issuing a statement that they stood by all of Bump’s reporting, including false columns on the Lafayette Park protests, Hunter Biden laptop and other stories. That was long after other media debunked the claims, but the Post stood by the false reporting.
The decline of the Post has followed a familiar pattern. The editors and reporters simply wrote off half of their audience and became a publication for largely liberal and Democratic readers. In these difficult economic times with limited revenue sources, it is a lethal decision.
Robert Lewis, a British media executive who joined the Post earlier this year, reportedly got into a “heated exchange” with a staffer. Lewis explained that, while reporters were protesting measures to expand readership, the very survival of the paper was now at stake:
“We are going to turn this thing around, but let’s not sugarcoat it. It needs turning around,” Lewis said. “We are losing large amounts of money. Your audience has halved in recent years. People are not reading your stuff. Right. I can’t sugarcoat it anymore.”
Other staffers could not get beyond the gender and race of those who would be overseeing them. One staffer complained “we now have four White men running three newsrooms.” The Post has been buying out staff to avoid mass layoffs, but reporters are up in arms over the effort to turn the newspaper around. Yet, in this case, a reporter openly advocated for censorship and pushed the White House to take action against X and Trump; to use government authority to “intervene” to stop Trump from being able to make certain claims on social media.
We have previously written how the level of advocacy and bias in the press has created a danger of a de facto state media in the United States. It is possible to have such a system by consent rather than coercion. The Biden White House has become more open in its marching orders to media, including a letter drafted by the Biden White House Legal Counsel’s Office calling for major media to “ramp up their scrutiny” of House Republicans. President Biden has even instructed reporters “[t]hat is not the judgment of the press” when asked tough questions.
To the credit of the Post, it is not killing “democracy in the darkness.” This incident occurred in the light of day for all to see as its reporter pushed the White House for the censoring of political opponents.
In my new book on free speech and various columns, I write about the European Digital Services Act (DSA) as one of the greatest assaults on free speech in history. One of the most notorious anti-free speech figures in the world is European Commissioner for Internal Markets and Services Thierry Breton. Where some censor’s express reluctance in their work, Breton is chillingly enthusiastic in threatening those with opposing views with charges and financial ruin. The latest is Elon Musk for his decision to interview former President Donald Trump.
After Musk bought Twitter and pledged to dismantle much of the company’s massive censorship system, Breton went after the company at the urging of Hillary Clinton.
For those who criticized the European Union as a dangerous step toward a transnational governance system, Breton is the personification of their worst fears. He has wielded the sweeping powers and vague standards of the DSA to force companies to engage in comprehensive censorship regardless of national laws or their own values.
As I wrote in the book:
“Under the DSA, users are ’empowered to report illegal content online and online platforms will have to act quickly.’ This includes speech that is viewed not only as ‘disinformation’ but also ‘incitement.’ European Commission Executive Vice President Margrethe Vestager has been one of the most prominent voices seeking international censorship. At the passage of the DSA, Vestager was ecstatic in declaring that it is ‘not a slogan anymore, that what is illegal offline should also be seen and dealt with as illegal online. Now it is a real thing. Democracy’s back.’”
This week, Breton was irate that Musk was giving Trump a forum on X, formerly Twitter. He was not the only one. The interview was interrupted by what Musk said was a distributed denial-of-service (DDS) attack by people trying to prevent the interview.
Notably, a DDS attack interrupted a prior interview with Republican Gov. Ron DeSantis. Like Breton, many were working tirelessly to prevent others from hearing opposing views.
Breton threatened Musk that the EU was watching and that the Trump interview could bring crippling sanctions under the DSA: “As there is a risk of amplification of potentially harmful content in [the EU] in connection with events with major audience around the world, I sent this letter to @elonmusk.”
As in the past, Breton refused to recognize that he was interfering with elections in another country. Sitting in his EU office, he demanded that whatever is discussed in the interview should satisfy his own content standards: “As the relevant content is accessible to EU users and being amplified also in our jurisdiction, we cannot exclude potential spillovers in the EU.” Breton expressly warned that the censors were watching. Breton wrote of the Musk-Trump interview: “Therefore, we are monitoring the potential risks in the EU associated with the dissemination of content that may incite violence, hate and racism in conjunction with major political – or societal – events around the world, including debates and interviews in the context of elections.” Breton added his perfunctory mantra that free expression is fine, but only if he does not consider it “harmful.”
“This notably means, on one hand, that freedom of expression and of information, including media freedom and pluralism, are effectively protected and, on the other hand, that all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events, including live streaming, which, if unaddressed, might increase the risk profile of X and generate detrimental effects on civic discourse and public security.”
He then threatened to impose ruinous financial penalties until Musk censored others, including potentially one of two leading presidential candidates in the United States. Musk responded with a defiant message that began with “Bonjour!” He added a vulgar Tropic Thunder reference.
Breton is one of the key figures in an anti-free speech movement that has swept over Europe. It is now using the DSA, as many of us predicted, to force other countries to censor their citizens and even their leaders. It is free speech regulated to the lowest common denominator, the level set by the EU and Breton.
There is a crushing irony. The left has made “foreign interference” with elections a mantra of claiming to be defending democracy. Yet, it applauds EU censors threatening companies that carry an interview with a targeted American politician. It also supports importing such censorship and blacklisting systems to the United States. When you agree with the censorship, it is not viewed as interference, but an intervention.
If citizens want to see where the anti-free speech movement will take us in the United States, they need only to look at Europe where free speech is in a virtual free fall. As I wrote in “The Indispensable Right: Free Speech in an Age of Rage”:
“The impact of these laws was evident in a poll of German citizens. Only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans did not even feel free expressing themselves in private among friends. And just 17 percent felt free to express themselves on the internet. The only true success of censorship has been the forced or compelled silence of those with opposing views. That pretense of social harmony is treated as success even though few minds are changed as fewer voices are heard in society.”
Musk may be the only individual with sufficient money and commitment to stand up to the EU and the global censors. That is precisely why Musk is being targeted by so many in the media, academia, and government. It is also why many of us support X and its struggle against the EU and Breton.
Below is my column in The Hill on why a Harris-Walz Administration would be a nightmare for free speech. A long-standing advocate for censorship and other speech controls, Vice President Kamala Harris just added an equally menacing candidate to her ticket for 2024.
Here is the column:
The selection of Minnesota Gov. Tim Walz (D) as the running mate for Vice President Kamala Harris has led to intense debates over crime policy, war claims, gender identity policies and other issues. Some attacks have, in my view, been inaccurate or overwrought. However, the greatest danger from this ticket is neither speculative nor sensational. A Harris-Walz administration would be a nightmare for free speech.
For over three years, the Biden-Harris administration has sustained an unrelenting attack on the freedom of speech, from supporting a massive censorship system (described by a federal court as an “Orwellian Ministry of Truth“) to funding blacklisting operations targeting groups and individuals with opposing views.
President Biden made censorship a central part of his legacy, even accusing social media companies of “killing people” for failing to increase levels of censorship. Democrats in Congress pushed that agenda by demanding censorship on subjects ranging from climate change to gender identity — even to banking policy — in the name of combatting “disinformation.”
The administration also created offices like the Disinformation Governance Board before it was shut down after public outcry. But it quickly shifted this censorship work to other offices and groups.
As vice president, Harris has long supported these anti-free speech policies. The addition of Walz completes a perfect nightmare for free speech advocates. Walz has shown not only a shocking disregard for free speech values but an equally shocking lack of understanding of the First Amendment.
Walz went on MSNBC to support censoring disinformation and declared, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.” Ironically, this false claim, repeated by many Democrats, constitutes one of the most dangerous forms of disinformation. It is being used to convince a free people to give up some of their freedom with a “nothing to see here” pitch.
In prior testimony before Congress on the censorship system under the Biden administration, I was taken aback when the committee’s ranking Democrat, Del. Stacey Plaskett (D-Virgin Islands), declared, “I hope that [all members] recognize that there is speech that is not constitutionally protected,” and then referenced hate speech as an example.
That false claim has been echoed by others such as Sen. Ben Cardin (D-Md.), who is a lawyer. “If you espouse hate,” he said, “…you’re not protected under the First Amendment.” Former Democratic presidential candidate Howard Dean declared the identical position: “Hate speech is not protected by the First Amendment.”
Even some dictionaries now espouse this false premise, defining “hate speech” as “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”
The Supreme Court has consistently rejected the claim of Gov. Walz. For example, in the 2016 Matal v. Tam decision, the court stressed that this precise position “strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
As the new Democratic vice-presidential candidate, Walz is running alongside one of the most enthusiastic supporters of censorship and blacklisting systems. In her failed 2020 presidential bid, Harris ran on censorship and pledged that her administration “will hold social media platforms accountable for the hate infiltrating their platforms, because they have a responsibility to help fight against this threat to our democracy.”
In October 2019, Harris dramatically spoke directly to Facebook’s Mark Zuckerberg, insisting“This is not a matter of free speech….This is a matter of holding corporate America and these Big Tech companies responsible and accountable for what they are facilitating.” She asked voters to join her in the effort.
They didn’t, but Harris ultimately succeeded in the Biden-Harris administration to an unprecedented degree with a comprehensive federal effort to target and silence individuals and groups on social media.
In my new book, “The Indispensable Right: Free Speech in an Age of Rage,”I detailed how President Biden is the most anti-free speech president since John Adams. Unlike Adams, I have never viewed Biden as the driving force behind the massive censorship and blacklisting operations supported by his subordinates, including Harris. That is not to say that Biden does not share the shame in these measures. He was willing to sacrifice not only free speech but also institutions like the Supreme Court in a desperate effort to rescue his failing nomination.
The substitution of Harris for Biden makes this the second election in which free speech is the key issue for voters. In 1800, Thomas Jefferson defeated Adams, in large part based on his pledge to reverse the anti-free speech policies of the prior administration, including the use of the Alien and Sedition Acts to arrest his opponents.
With the addition of Walz, Democrats now have arguably the most anti-free speech ticket of a major party in more than two centuries. Both candidates are committed to using disinformation, misinformation and malinformation as justifications for speech controls. The third category has been emphasized by the Biden-Harris administration, which explained that it is information “based on fact, but used out of context to mislead, harm, or manipulate.”
Walz has the advantage in joining this anti-free speech ticket without the burden of knowledge of what is protected under the First Amendment.
With the Harris-Walz ticket, we have come full circle to the very debate at the start of this republic. The warnings of the Founders to reject the siren’s call of censorship remain tragically relevant today. Free speech was and remains our “indispensable right.”
As Benjamin Franklin warned, “In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech….Without freedom of thought there can be no such thing as wisdom, and no such thing as public liberty without freedom of speech, which is the right of every man.”
With her selection of Walz, Harris has decided to put free speech on the ballot in this election. It is a debate that our nation should welcome, as it did in 1800. The Biden-Harris administration has notably toned down its anti-free speech efforts as the election approaches. Leading censorship advocates have also gone mostly silent. If successful, a Harris-Walz administration is expected to bring back those policies and personalities with a vengeance. That could be radically enhanced if the Democrats take both houses of Congress and once again block investigations into their censorship programs.
The media has worked very hard to present Harris and Walz as the “happy warriors.” Indeed, they may be that and much more. The question is what they are happy about in their war against free speech.
We have previously discussed controversial sentences handed down in cases involving rioters on January 6th, including sentencing orders that, in my view, violate First Amendment rights. That included the case of Daniel Goodwyn, who pleaded guilty to a single misdemeanor count of entering and remaining in a restricted building. That crime would ordinarily not involve any jail time for a first offender. However, Judge Reggie B. Walton of the United States District Court for the District of Columbia decided that he would use the case to regulate what Goodwyn was reading and communicating with a chilling probation order. After the case was sent back by the D.C. Circuit, Walton doubled down on his extraordinary order. Now the D.C. Circuit has refused to hear an emergency appeal.
Judge Walton has attracted controversy and criticism over his public comments about former President Donald Trump and the other issues. He caused a stir in Washington after doing an interview with CNN in which he rebuked former President Donald Trump for his criticism of judges and their family members. Walton previously called Trump a “charlatan,” and said that “I don’t think he cares about democracy, only power.”
Critics charged that Walton’s public statements ran afoul of Canon 3A(6) of the Code of Conduct for United States Judges, which states: “A judge should not make public comment on the merits of a matter pending or impending in any court.”
Walton then triggered criticism over his handling of the Goodwin case. The case involved Daniel Goodwyn, 35, of Corinth, Texas, who pleaded guilty on Jan. 31, 2023, to one misdemeanor count of entering and remaining in a restricted building or grounds without lawful authority. That is a relatively minor offense, but Walton imposed a 60-day jail sentence in June 2023 with these ongoing conditions on his online reading and speech.
Walton reportedly noted that Goodwyn spread “disinformation” during a broadcast of “Tucker Carlson Tonight” on March 14, 2023, and ordered that Mr. Goodwyn’s computer be subject to “monitoring and inspection” by a probation agent to check if he spread Jan. 6 disinformation during the term of his supervised release.
After accepting the plea to a single misdemeanor, Walton expressed scorn for Goodwyn appearing “gleeful” on Jan. 6 and his “egging on” other rioters. He asked his defense counsel “why I should feel that he doesn’t pose a risk to our democracy?”
As a condition for supervised release, DOJ pushed the monitoring conditions and found a judge who seemed eager to impose it.
The order reflects the utter impunity shown by the Justice Department in its pursuit of January 6th defendants. Justice Department official Michael Sherwin proudly declared in a television interview that “our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”
Sherwin was celebrated for his pledge to use such draconian means to send a message to others in the country. (Sherwin has left the Justice Department and is now a partner at Kobre & Kim).
Walton was rebuked by the United States Court of Appeals for the District of Columbia for a surveillance order of Goodwin to detect any spreading of “disinformation” or “misinformation.”
In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I discussed concerns over the cases like Goodwyn’s and their implications for free speech. I participated in the coverage on January 6th and criticized President Trump’s speech while he was giving it. I disagreed with the legal claims made to oppose certification. However, the “shock and awe” campaign of the Justice Department, in my view, has trampled on free speech rights in cases that range from Goodwyn to the prosecutions of Trump himself.
Many of us were relieved when appellate judges (Gregory Katsas, Neomi Rao, and Bradley Garcia) rebuked Walton and held that “[t]he district court plainly erred in imposing the computer-monitoring condition without considering whether it was ‘reasonably related’ to the relevant sentencing factors and involved ‘no greater deprivation of liberty than is reasonably necessary’ to achieve the purposes behind the sentencing.”
They sent the case back but, to the surprise of few, Judge Walton proceeded to double down on the monitoring while implausibly declaring “I don’t want to chill anyone’s First Amendment rights.”
For some reason, Walton believes that barring an individual from reviewing and engaging in political speech does not “chill” his First Amendment rights.
Most of us were appalled by the riot and the underlying views of figures like Goodwyn, who is a self-proclaimed member of the Proud Boys. He was rightfully arrested and should be punished for his conduct. The question is not the legitimacy of punishment, but the scope of that punishment.
Prosecutor Brian Brady detailed how the Justice Department has in place a new system using artificial intelligence to monitor the reading and statements of citizens like Goodwyn. The Justice Department brushed aside the free speech concerns since Goodwyn remains under court supervision, even though he pleaded guilty to only a single misdemeanor.
Brady described a virtual AI driven thought program. The justification was that Goodwyn refused to abandon his extreme political views:
“Throughout the pendency of Goodwyn’s case, he has made untruthful statements regarding his conduct and the events of the day, he has used websites and social media to place targets on police officers who defended the Capitol, and he has used these platforms to publish and view extremist media. Imposing the requested [monitoring] conditions would protect the public from further dissemination of misinformation… [and] provide specific deterrence from him committing similar crimes.”
So now federal courts can use a single misdemeanor for unlawful entry in a federal building for less than 40 seconds to “protect the public from … dissemination of misinformation” on the government.
That was all Walton needed to hear. Relying on a record supplied by the Justice Department, Walton said in the hearing that Goodwyn is still engaging “in the same type of rhetoric” that fomented the Jan. 6 violence. He added that he was concerned about Goodwyn spreading “false narratives” when we are “on the heels of another election.”
Walton merely added the DOJ record to his renewed sentencing conditions.
Defense counsel then returned to the D.C. Circuit to seek an emergency stay but Judges Florence Pan and Bradley Garcia denied the motion, holding that “Appellant has not satisfied the stringent requirements for a stay pending appeal” to prevent further “false narratives.”
That drew a pointed dissent from Judge Gregory Katsas who stated:
Daniel Goodwyn pleaded guilty to one count of knowingly entering or remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1). Goodwyn entered the Capitol and remained inside for a total of 36 seconds. He did not use force to enter, did not assault police officers, and neither took nor damaged any government property. When police instructed Goodwyn to leave the building, he did so.
…
On appeal, this Court vacated the condition … We further instructed the district court, if it wished to impose a new computer- monitoring condition on remand, to “explain its reasoning,” to “develop the record in support of its decision,” and to ensure that the condition complies with section 3583(d) and with the Constitution.
The district court reimposed the same condition on remand. In an oral hearing, the court said that Goodwyn had made statements on social media that “can be, it seems to me, construed as” urging a repeat of January 6, particularly “on the heels of another election.” In its written order, the court elaborated on what it called Goodwyn’s “concerning online activity.”This included posting exhortations to “#StopTheSteal!” and “#FightForTrump,” soliciting donations to fund his travel to Washington, posing for a livestream while inside the Capitol, confirming his presence there by text, and tweeting opinions such as: “They WANT a revolution. They’re proving our point. They don’t represent us. They hate us.” Id. at 3–4. In addressing what the court described as Goodwyn pushing “false narratives” about January 6 after-the-fact, the court, quoting from the government’s brief, led with the fact Goodwyn “sat for an interview with Tucker Carlson on Fox News Channel.” Id. at 4. Finally, in concluding that computer monitoring was reasonably related to Goodwyn’s offense, the court reasoned that monitoring would prevent Goodwyn from raising funds to support potential future crimes and would separate him “from extremist media, rehabilitating him.”
Judge Katsas stated that Goodwyn was likely to prevail on the merits and that his colleagues allowed the denial of First Amendment rights to continue in the interim.
The Walton order reflects the erosion of support for the First Amendment, even on our courts. It is reminiscent of our previous discussion of how courts have criminalized “toxic ideologies” as part of the crackdown on free speech in the United Kingdom.
For over a year, Special Counsel Jack Smith has made one element the overriding priority in his prosecution of former president Donald Trump: speed. Smith repeatedly moved to curtail Trump’s appellate rights and demand expedited appeals to try to secure a conviction before the election. In that effort, he found an equally motivated judge in U.S. District Judge Tanya S. Chutkan, who virtually turned her court into a rocket docket to try Trump. Now, in a neck-breaking change of direction, Smith is trying to slow down Chutkan who appears again ready to pull out the stops in this case.
After the mandate in the case was returned to her, Judge Chutkan immediately resumed her high-speed scheduling to look at the pre-trial issues after the Court reversed her earlier rulings on the basis of presidential immunity.
The past problem with a court making speed the priority is that it does not allow much time to create a record. The remand will now require Judge Chutkan to do so on the question of what charges and evidence may be barred under the ruling in Trump v. United States.
As it has in the past, the c=Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the Court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.
Only hours after receiving the mandate, Judge Chutkin scheduled an Aug. 16 conference to lay out the schedule and issues going forward. The former version of Jack Smith would have been delighted. He did not even see the need for the right for an en banc appeal in previously pushing for a pre-election trial.
Now, however, Smith is telling Judge Chutkin to slow down already.
Smith told the court that “The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States. Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.”
He has asked for a three-week delay to further consider what he wants to do. It is not clear if the press and pundits will now charge Smith with “slow walking” the case.
The question is whether Smith is considering a drastic move in light of the calendar and the ruling. There is, of course, always the possibility that he either throws in the towel or opts for a post-election trial. That would certainly go against the grain of Smith, who has always pushed both the law and the calendar to the breaking point. However, as some of us have been arguing for months, he may no longer view a trial as a plausible objective.
There is also the possibility that Smith will do something that some of us have discussed over the last year: pare down his case. Smith has always been undone by his appetite. As shown in his 8-0 reversal in his conviction of former Virginia Governor Bob McDonnell, Smith has rarely shown moderation as a prosecutor.
His overloaded criminal complaints created this disaster for his team. In Florida, Smith unwisely loaded up the prosecution with controversial charges on the retention of classified material. It not only triggered difficult challenges but slowed the case to a crawl as the parties dealt with classification laws. Had he proceeded solely on obstruction charges, he might have secured his trial before the election (and before the recent ruling on immunity). Even if the reduced case was heard by the Court on immunity, an obstruction case would have been far stronger for Smith.
The same is true with the D.C. case. Smith loaded up the case to raise the January 6th speech and other issues. Most were unnecessary, but Smith used his press conference to denounce the January 6th riot.
A three-week delay will give Smith ample time (in addition to the weeks following the Supreme Court decision) to deliberate. However, it will take roughly a month off the calendar for just internal debate with the election only three months away.
So, even with a judge who appears chomping at the bit to resume the fast track to trial, Smith now wants more time. Even before this request, it was hard to see how a trial could be held before the election. Now it seems a virtual certainty that any trial will have to await the results of the election. As I wrote in 2023, the odds were against a federal trial before the election, which would convert the voters into the largest jury in history.
Special Counsel David Weiss appears to have finally made the long-awaited case exposing years of concealment and political corruption. No, it is not the case against Hunter Biden. The allegations of tax fraud in California are obvious and unavoidable. Weiss just made the case against the Justice Department and himself in protecting Hunter Biden from the most damaging charges of being an unregistered foreign agent. In a new filing, Weiss released evidence on Hunter seeking money to advance the interests of a Romanian on United States policy.
I have previously testified on the Foreign Agents Registration Act and have previously written about the disturbing disconnect in the treatment of the President’s son as opposed to figures like Paul Manafort. The charge was always one of the greatest fears of the White House. If Hunter Biden was a foreign agent, it would magnify the influence peddling scandal and further link his conduct to work of his father as vice president and later president.
What was previously known about millions received from China, Russia, and other countries made such a charge obvious. In the past, the Justice Department has used the charge early and often in high-profile cases to pressure defendants and force cooperation or plea agreements. During the Trump Administration, an official could not go to Epcot without drawing a FARA charge from DOJ.
This charge has been a favorite of the DOJ before the President’s son was implicated in a massive influence peddling scheme with foreign figures.
Here is the definition used in such cases:
A “foreign agent” is defined as “(1) any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person— (i) engages within the United States in political activities for or in the interests of such foreign principal; (ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal; (iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or (iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States; and (2) any person who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection.”
For years, I have expressed alarm at the special treatment afforded to Hunter Biden on the charges. Many of us have also criticized Weiss for allowing the most serious tax charges to expire despite being able to extend the statute of limitations. He has yet to offer a compelling reason why prosecutors would ever allow viable felony charges to expire when they could have extended that period.
Now, Biden is seeking to avoid conviction under the tax charges in California. He is repeating the claims that failed in his recent gun violation. He is claiming that he was an addict and not responsible for his criminal conduct, even though he was flying around the world collecting millions from foreign sources.
To rebut that claim, Weiss’ team said they plan to introduce evidence showing his sophisticated scheme to tap foreign sources interested in influencing the government and federal policy.
In the filing below, Weiss opposes the Biden team effort to exclude the evidence of his working for the Romanians. Senior assistant special counsel Derek Hines writes in the filing that “[t]he evidence of what the defendant agreed to do and did do for [the businessman] demonstrates the defendant’s state of mind and intent during the relevant tax years charged in the indictment. It is also evidence that the defendant’s actions do not reflect someone with a diminished capacity, given that he agreed to attempt to influence U.S. public policy and receive millions of dollars pursuant to an oral agreement.”
That sounds a lot like seeking the work of a foreign agent. Here is the language from FARA:
“The first category of evidence the defendant seeks to exclude is any “reference to allegations that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion . . .” Motion at 3 (emphasis added). The government does not intend to reference allegations at trial. Rather, the government will introduce the evidence described above, including that the defendant and Business Associate 1 received compensation from a foreign principal who was attempting to influence U.S. policy and public opinion and cause the United States to investigate the Romanian investigation of G.P in Romania.” (emphasis added)
It is a curious argument. It is akin to saying that we know that he stole the car because he used it in the kidnapping. It leaves most people wondering why you did not charge on the kidnapping crime.
The fact is that this is only one of an array of such contracts that have been detailed by the House Oversight Committee and other House committees. The other foreign dealings reportedly involved Hunter reaching out to government officials while his father was vice president. That includes the controversy over Joe Biden’s sudden decision to issue an ultimatum to the Ukrainian government.
In a 2018 interview at the Council on Foreign Relations, Biden bragged that he unilaterally withheld a billion dollars in US aid from the Ukrainians to force them to fire prosecutor general Viktor Shokin.
The Ukrainians balked, but Biden gave them an ultimatum: “I looked at them and said, ‘I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money.’ Well, son of a bitch. He got fired.”
However, a State Department memo is shedding disturbing light on that account and shredding aspects of Biden’s justification for the action. It directly contradicts Biden’s insistence that he took this extraordinary stand because there was little hope for the anti-corruption efforts in Ukraine if Shokin remained prosecutor.
The Oct. 1, 2015, memo summarizes the recommendation of the Interagency Policy Committee that was handling the anti-corruption efforts in Ukraine: “Ukraine has made sufficient progress on its reform agenda to justify a third guarantee.” One senior official even complimented Shokin on his progress in fighting corruption. So, Biden was told to deliver on the federal aid but elected to unilaterally demand Shokin be fired.
In testimony from Devon Archer, a business associate of Hunter Biden, we learned that Burisma executives made the removal of Shokin a top priority and raised it with Hunter. He described how the need to neutralize Shokin was raised with Hunter and how “a call to Washington” was made in response. While Archer also said that “the narrative spun to me was that Shokin was under control,” he and others also heard concerns over Shokin and the risks of the investigation.
Other transactions directly requested intervention on matters being addressed by the Obama-Biden Administration.
So, now, the Justice Department is citing some of these dealings to show a conscious and premeditated effort to shake down foreigners to influence U.S. policy. Weiss now maintains that “The defendant did receive compensation from a foreign principal to attempt to influence U.S. policy and public opinion, as alleged in the indictment, and this evidence is relevant.”
They have made more than the case against Hunter Biden. They have made a conclusive and overwhelming case against themselves in slow walking and minimizing charges against the President’s son.
Senate Majority Leader Chuck Schumer (D., N.Y.) has introduced the “No Kings Act” with great fanfare and the support of most of his Democratic colleagues. Liberal groups have heralded the measure to legislatively reverse the ruling in Trump v. United States. It is obviously popular with the press and pundits. It is also entirely unconstitutional in my view. The “No Kings Act” is not just a cynical abdication of responsibility by Democrats but would constitute the virtual decapitation of the Constitution.
I have previously written about the false claims made about the Supreme Court’s decision by President Joe Biden, Vice President Kamala Harris and other leading democrats. The press and pundits have reached a new level of sensationalism and hysteria in the coverage with MSNBC’s Rachel Maddow even claiming that it was a “death squad ruling.”
The Trump Decision
The Court actually rejected the most extreme positions of both the Trump team and the lower courts.
As it has in the past, the Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.
Where the coverage has been wildly inaccurate, the No Kings Act is cynically dishonest.
To his credit, President Joe Biden was at least honest in proposing a constitutional amendment to overturn the decision in Trump. However, that was dead on arrival in Congress since under Article V it would require a two-thirds majority vote in both houses and then ratification by three-fourths of the states.
The Democrats are seeking to circumvent that process with simple majority votes with the No Kings Act. The bill is being presented as a jurisdiction-stripping measure, not an effort to dictate outcomes.
Congress does have authority to change the jurisdiction of the federal courts. That authority was recognized by the Court itself in Ex parte McCardle (1869). Chief Justice Salmon Chase ruled that it did have the authority “to make exceptions to the appellate jurisdiction of this court.” However, Chase also emphasized that the law did “not affect the jurisdiction which was previously exercised” so that prior decisions would remain fully enforceable.
Moreover, shortly after McCardle, the Court ruled in United States v. Klein (1871), that Congress may not use its authority of court jurisdiction to lay out a “rule of decision” for the Supreme Court, or effectively dictate results in court cases.
The No Kings Act
The No Kings Act does more than just strip jurisdiction and makes no secret of its purpose in dictating the outcome of future cases.
It purports in Section 2 to “clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress.”
That is a rather Orwellian view of “clarification” since it directly contradicts the opinion in declaring in the very next section that “[a] President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress.”
Schumer and most of the Democratic senators actually believe that they can simply instruct lower courts to ignore a Supreme Court ruling on the meaning of the Constitution. It would undermine the basis of Marbury v. Madison after 221 years.
To be sure, it is stated in strictly jurisdictional terms. Yet, it crafts the jurisdictional changes to mirror the decision and future immunity claims.
The bill declares that federal courts “may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.”
But the Democrats are not done yet. Section 4 actually removes the Supreme Court from such questions and makes appellate courts the effective highest courts of the land when it comes to presidential immunity:
“The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President.”
Notably, this is one of the wacky ideas put forward by the President’s Supreme Court Commission. After all, why pack the Court if you can just gut it?
Of course, some sponsors like Elizabeth Warren (D., Mass.) want to both pack the Court and strip it of authority. Presumably, once packed, the authority to act as a court would be at least restored with the liberal majority.
By making the D.C. Circuit (where most of these cases are likely to be litigated) the highest court of the land on the question, the Democrats are engaging in the rawest form of forum shopping. The D.C. Circuit is expected to remain in the control of Democratic appointees for years. (The Act expressly makes the D.C. courts the only place to bring a civil action in this area and states that “a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.”)
The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.
But wait there is more.
The No Kings Act reads like a fairy tale read by Democratic senators to their grandchildren at night. Not only would the evil conservative justices be vanquished by a lower court controlled by Democratic appointees, but the bill is filled with other wish list items from the far left. It would strip the Court of the ability to take other cases, to dismiss a criminal proceeding, to suppress evidence, and to grant a writ of habeas corpus, or “the Great Writ” that is the foundation of Anglo-American law for centuries.
The Democrats even legislatively dictate that any review of the law must meet a standard of its choosing. They dictate that “[a] court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional.” Thus, even the clear and convincing provision of the Act must be subject to a clear and convincing evidence review.
The Death of Marbury?
Again, Democrats are insisting that they are merely changing the jurisdiction of the Court and not ordering outcomes. However, the sponsors make clear that this is meant to “reaffirm that the President is not immune to legal accountability.” Sponsors like Sen. Sheldon Whitehouse (D., R.I.) declared that “Congress has the power to undo the damage of this decision” by a “captured Court.”
The greatest irony is that the Democrats are practically reverting to the position of critics of Marbury v. Madison, who argued that the Framers never intended the Supreme Court to be the final arbiter of what the law means. That principle has been the touchstone of American law since 1803, but the Democrats would now effectively revert to the English approach under the guise of jurisdiction stripping legislation. Before the Revolution, the Parliament could dictate what the law meant on such cases, overriding the courts. On a practical level, the Democrats would regress to that pre-Marbury approach.
Marbury introduced a critical stabilizing element in our system that contributed greatly to the oldest and most successful constitutional system in history. Democrats would now toss much of that aside in a spasm of partisan anger. Calling the No Kings Act a jurisdiction stripping bill does not conceal its intent or its implications for our system.
It is all a rather curious position for the party that claims to be defending the rule of law. The No Kings Act would constitute a radical change in our constitutional system to allow popular justice to be meted out through legislative fiat.
Sponsors like Sen. Jeanne Shaheen, D-N.H., previously promised a “revolution” if the conservatives did not rule as the Democrats demanded. They have now fulfilled those threats, though few expected that they would undo the work following our own Revolution.
Just to be sure that the sponsorship of this infamous legislation is not soon forgotten, here are the senators willing to adopt this Constitution-destroying measure:
Chuck Schumer (D-NY), Mazie Hirono (D-HI), Brian Schatz (D-HI), Ben Ray Luján (D-NM), Jack Reed (D-RI), Richard Blumenthal (D-CT), Tom Carper (D-DE), Peter Welch (D-VT), John Hickenlooper (D-CO), Bob Casey (D-PA), Chris Coons (D-DE), Jeanne Shaheen (D-NH), Tammy Baldwin (D-WI), Jeff Merkley (D-OR), Ben Cardin (D-MD), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Patty Murray (D-WA), Chris Van Hollen (D-MD), Ed Markey (D-MA), Tammy Duckworth (D-IL), Amy Klobuchar (D-MN), Laphonza Butler (D-CA), Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Ron Wyden (D-OR), Angus King (I-ME), Martin Heinrich (D-NM), Debbie Stabenow (D-MI), Alex Padilla (D-CA), Gary Peters (D-MI), and Raphael Warnock (D-GA).
CNN has been fighting a defamation case brought after a segment by Jake Tapper that accused Zachary Young and his company Nemex Enterprises Inc. of preying on people seeking to flee Afghanistan, even suggesting that he was a type of human trafficker. CNN’s new motion for summary judgment raised eyebrows in citing Sharia law to say that what Young was doing in rescuing people was unlawful under Islamic restrictions.
CNN recently lost a recent major ruling from Judge L. Clayton Roberts in which he found that there was evidence of malice by CNN to support the higher standard needed for defamation. The evidence in the case is remarkably bad for the network after discovery of internal memoranda and emails.
The report at the heart of the case aired on Nov. 11, 2021, segment on CNN’s “The Lead with Jake Tapper” and was shared on social media and (a different version on) CNN’s website. In the segment, Tapper tells his audience ominously how CNN correspondent Alex Marquardt discovered “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.”
Marquardt piled on in the segment, claiming that “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” to flee the country. He then named Young and his company as the example of that startling claim.
The damages in the case could be massive but Young had to satisfy the higher New York Times v. Sullivan standard of “actual malice” with a showing of knowing falsehood or a reckless disregard of the truth. Judge Roberts found that “Young sufficiently proffered evidence of actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages.”
The evidence included messages from Marquardt that he wanted to “nail this Zachary Young mfucker” and thought the story would be Young’s “funeral.” After promising to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!” Likewise, CNN senior editor Fuzz Hogan described Young as “a shit.”
As is often done by media, CNN allegedly gave Young only two hours to respond before the story ran. It is a typical ploy of the press to claim that they waited for a response while giving the target the smallest possible window.
In this case, Young was able to respond in the short time and Marquardt messaged a colleague, “f__king Young just texted.”
After losing the earlier motion on malice, CNN’s lead counsel Deanna K. Shullman surprised many in the motion of summary judgment by turning to Sharia law in defense of CNN. She argued that
“this entire defamation case centers on Young’s accusation that CNN implied he engaged in illegal conduct when he arranged, for a substantial fee, to have women smuggled out of Afghanistan…[D]iscovery has indicated that those activities he orchestrated and funded, which involved moving women out of Afghanistan, almost certainly were illegal under Taliban rule.”
Young’s counsel objected and noted that the allegations were never that “what Young and other private operators were doing was illegal under Taliban law.”
It is hard to see how CNN would prevail on this summary judgment motion. At most, this would seem a question that requires a finding of fact from a jury. I would be surprised if jurors agree with CNN that the outrage expressed by the network was based on the violation of the draconian, oppressive laws of the Taliban. Those were the very laws that these people were desperately trying to escape.
We have been discussing media rating systems being used to target advertisers and revenue sources for certain cites and companies. NewsGuard and the Global Alliance for Responsible Media (GARM) have been criticized as the most sophisticated components of a modern blacklisting system targeting conservative or dissenting voices. I recently had a series of exchanges with NewsGuard after a critical column. Now, the House Judiciary Committee under Chairman Rep. Jim Jordan (R-Ohio) is moving forward in demanding documents and records from leading companies utilizing the GARM system, a company that I have previously criticized. It is a welcomed effort for anyone who is concerned over the use of these blacklisting systems to curtail free speech. However, time is of the essence.
The demand to preserve evidence went to various companies, including Adidas, American Express, Bayer, BP, Carhartt, Chanel, CVS and General Motors.
In my new book, I discuss the rating systems as a new and insidious form of blacklisting. Notably, Elon Musk has now filed a lawsuit against GARM and may be able to get more evidence out in discovery on the operations of this outfit.
It is an effort to strangle the financial life out of sites by targeting their donors and advertisers. This is where the left has excelled beyond anything that has come before in speech crackdowns.
Years ago, I wrote about the Biden administration supporting efforts like the Global Disinformation Index (GDI) to discourage advertisers from supporting certain sites. All of the 10 riskiest sites targeted by the index were popular with conservatives, libertarians and independents. That included Reason.org and a group of libertarian and conservative law professors who simply write about cases and legal controversies. GDI warned advertisers against “financially supporting disinformation online.” At the same time, HuffPost, a far-left media outlet, was included among the 10 sites at lowest risk of spreading disinformation.
Once GDI’s work and bias was disclosed, government officials quickly disavowed the funding. It was a familiar pattern. Within a few years, we found that the work had been shifted instead to groups like the GARM, which is the same thing on steroids. It is the creation of a powerful and largely unknown group called the World Federation of Advertisers (WFA), which has huge sway over the advertising industry and was quickly used by liberal activists to silence opposing views and sites by cutting off their revenue streams.
Notably, Rob Rakowitz, head of GARM, pushed GDI and embraced its work. In an email to GARM members obtained by the committee last month, Rakowitz wrote that he wanted to “ensure you’re working with an inclusion and exclusion list that is informed by trusted partners such as NewsGuard and GDI — both partners to GARM and many of our members.”
GARM is being used by WFA to achieve what GDI failed to accomplish. The WFA site refers to Rakowitz as “a career change agent” who will “remove harmful content from ad-supported digital media.”
Rakowitz’s views on free speech are chilling and his work shows how these systems can be used to conceal bias in targeting the revenue of sites with opposing views.
Rakowitz has denounced the “extreme global interpretation of the US Constitution” and how civil libertarians cite “‘principles for governance’ and applying them as literal law from 230 years ago (made by white men exclusively).”
He appears to be referring to free speech. If so, it is deeply troubling. Some of us believe that free speech is a human right, not just an American right. Those “white men” include philosophers from the Enlightenment whose ideas were incorporated in the Framer’s view of inalienable rights like free speech.
The threat against free speech today is being led by private groups seeking to exercise an unprecedented level of control over what people can read and discuss.
Pundits and politicians, including President Joe Biden and former President Barack Obama, have justified their calls for censorship (or “content moderation” for polite company) by stressing that the First Amendment only applies to the government, not private companies. That distinction allows Obama to declare himself to be “pretty close to a First Amendment absolutist.” He did not call himself a “free speech absolutist” because he favors censorship for views that he considers to be “lies,” “disinformation,” or “quackery.”
The distinction has always been a disingenuous evasion. The First Amendment is not the sole or exclusive definition of free speech. Censorship on social media is equally, if not more, damaging for free speech. Those who value free speech should oppose blacklisting systems, as was the case during the McCarthy period. Now that conservatives and libertarians are being blacklisted, it is suddenly less troubling for many on the left.
Rakowitz now wields massive influence over public discourse in this collaboration with corporations and groups like GDI. As was done to the left during the McCarthy period, blacklisting systems are now being used to control public access to information by choking off the revenue of sites.
The current anti-free speech movement is the most dangerous in history due precisely to this sophistication and the unprecedented alliance of corporate, media, academic, and government interests.
GARM and other media rating systems have been embraced by many who would prefer to silence opposing voices than respond to them. Rakowitz was wildly popular at Davos in calling for a “safer” Internet that would target dangerous sites much like GDI: “GARM has been officially recognized as a key project for 2020 within the WEF’s platform on Shaping the Future of Media Entertainment and Culture.”
The House committees are pushing forward with a sense of urgency. It is clear that the investigations in government-supported censorship and these blacklisting operations will end if the Democrats retake the house. It is expected that these companies will seek to delay any disclosures in the hope that the House will change hands and this system will again be allowed to recede back into the darkness.
In my new book, The Indispensable Right: Free Speech in an Age of Rage,” I write about a global anti-free speech movement that is now sweeping over the United States. While not the first, it is in my view the most dangerous movement in our history due to an unprecedented alliance of government, corporate, academic, and media forces. That fear was amplified this week with polling showing that years of attacking free speech as harmful has begun to change the views of citizens.
As discussed in the book, our own anti-free speech movement began in higher education where it continues to rage. It then metastasized throughout our politics and media. It is, therefore, not surprising to see the new Knight Foundation-Ipsos study revealing a further a decline in students’ views concerning the state of free speech on college campuses.
The study shows that 70 percent of students “believe that speech can be as damaging as physical violence.” It also shows the impact of speech codes and regulations with two out of three students reporting that they “self-censor” during classroom discussions.
Not surprisingly, Republican students are the most likely to self-censor given the purging of conservative faculty and the viewpoint intolerance shown on most campuses. Some 49 percent of Republican students report self-censoring on three or more topics. Independents are the second most likely at 40 percent. Some 38 percent of Democrats admit to self-censuring.
Sixty percent of college students strongly or somewhat agree that “[t]he climate at my school or on my campus prevents some people from saying things they believe, because others might find it offensive.”
The most alarming finding may be that only 54 percent of students believe that colleges should “allow students to be exposed to all types of speech even if they may find it offensive or biased.” That figure stood at 78 percent in 2016.
The poll follows similar results in a new poll by the Foundation for Individual Rights and Expression (FIRE) of the population as a whole. It found that 53% of Americans believe that the First Amendment goes too far in protecting rights. So there is now a majority who believe that the First Amendment, including their own rights, should be curtailed.
The most supportive of limiting free speech are Democrats at a shocking 61%. However, a majority (52%) of Republicans also agreed.
Roughly 40% now trust the government to censor speech, agreeing that they trust the government “somewhat,” “very much,” or “completely” to make fair decisions about what speech should be disallowed.
It is no small feat to convince a free people to give up their freedoms. They have to be afraid or angry. These polls suggest that they appear both very afraid and very angry.
It is the result of years of indoctrinating students and citizens that free speech is harmful and dangerous. We have created a generation of speech phobics who are willing to turn their backs on centuries of struggle against censorship and speech codes.
Anti-free speech books have been heralded in the media. University of Michigan Law Professor and MSNBC legal analyst Barbara McQuade has written how dangerous free speech is for the nation. Her book, “Attack from Within,” describes how free speech is what she calls the “Achilles Heel” of America, portraying this right not as the value that defines this nation but the threat that lurks within it.
McQuade and many on the left are working to convince people that “disinformation” is a threat to them and that free speech is the vehicle that makes them vulnerable.
This view has been pushed by President Joe Biden who claims that companies refusing to censor citizens are “killing people.” The Biden administration has sought to use disinformation to justify an unprecedented system of censorship.
Recently, the New York Times ran a column by former Biden official and Columbia University law professor Tim Wu describing how the First Amendment was “out of control” in protecting too much speech.
Wu insists that the First Amendment is now “beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.” He claims that the First Amendment “now mostly protects corporate interests.”
There is even a movement afoot to rewrite the First Amendment through an amendment. George Washington University Law School Professor Mary Anne Franks believes that the First Amendment is “aggressively individualistic” and needs to be rewritten to “redo” the work of the Framers.
Her new amendment suggestion replaces the clear statement in favor of a convoluted, ambiguous statement of free speech that will be “subject to responsibility for abuses.” It then adds that “all conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.”
Franks has also dismissed objections to the censorship on social media and insisted that “the Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates . . . If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet but consider the benefits of remaking the Internet in the image of the university.”
Franks is certainly correct that those “unlikeable voices” are less likely to be heard in academia today. As discussed in my book, faculties have largely cleansed with the ranks of conservative, Republican, libertarian, and dissenting professors through hiring bias and attrition. In self-identifying surveys, some faculties show no or just a handful of conservative or Republican members.
One of the most dangerous and successful groups in this anti-free speech movement has been Antifa. I testified in the Senate on Antifa and the growing anti-free speech movement in the United States. I specifically disagreed with the statement of House Judiciary Committee Chairman Jerry Nadler that Antifa (and its involvement in violent protests) is a “myth.”
Antifa is at its base a movement at war with free speech, defining the right itself as a tool of oppression. It is laid out in Rutgers Professor Mark Bray’s “Antifa: The Anti-Fascist Handbook” in which he emphasizes the struggle of the movement against free speech: “At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’”
Bray quotes one Antifa member as summing up their approach to free speech as a “nonargument . . . you have the right to speak but you also have the right to be shut up.”
However, the most chilling statement may have come from arrested Antifa member Jason Charter after an attack on historic statues in Washington, D.C. After his arrest, Charter declared “The Movement is winning.” As these polls show, he is right.
Last year, we discussed the free speech case of Matthew Garrett, formerly a tenured history professor at Bakersfield College who was investigated and disciplined after he questioned the use of grant money to fund social justice initiatives. Bakersfield College has one of the worst records on free speech in higher education and has been repeatedly sued by faculty. It will now pay another $2.4 million in a settlement to subsidize the anti-free speech actions of its administration. The question is why California taxpayers continue to allow faculty and administrators to burn through millions in these efforts to punish divergent or dissenting viewpoints. Matthew Garrett will reportedly receive $2,245,480 over the next 20 years as well as an immediate one-time payment of $154,520 as “compensation for back wages and medical benefits since [his] dismissal.” Unfortunately, the college got its way in insisting that he resign from the Kern Community College District. So, it achieved greater uniformity and orthodoxy in viewpoints at the cost of millions in damages.
The Foundation for Individual Rights and Expression supported his case and detailed in 2023 how his criticism of DEI programs made him a target of faculty and administrators:
Animosity toward Garrett by some faculty and administrators increased over the past couple years as Garrett and several other faculty members associated with the Renegade Institute for Liberty — a Bakersfield College think tank Garrett founded — joined the faculty diversity committee. Other committee members say that the Renegade faculty have made it difficult for the group to get anything done by stalling campus diversity initiatives. But it was Garrett’s comments regarding a proposed racial climate task force during a diversity committee meeting last fall that led Bakersfield to recommend Garrett’s termination.
At the October 2022 meeting of the Bakersfield Equal Opportunity and Diversity Advisory Committee, Garrett criticized a proposal by professor Paula Parks to create a racial climate task force he felt might usurp the jurisdiction of the diversity committee. He also contested the student survey data cited as justification for the proposed task force and questioned the survey’s objectivity and the lack of evidence connecting the data presented and the proposed solutions. Several other faculty members in the meeting also challenged the veracity of the survey data. But ultimately, the committee voted to approve the creation of the task force.
On Nov. 15, Parks published an op-ed in Kern Sol News accusing Garrett and other Renegade Institute-affiliated faculty of a “disturbing pattern of actions” that “created negativity and division in the name of free speech.”
We previously also discussed the case of History Professor Daymon Johnson who was put under investigation after he commented on the extremist comments of another professor. Professor Andrew Bond denounced the United States as a “sh*t nation” and then invited conservatives to quote him. In August 2019, Bond posted a statement on Facebook that:
“Maybe Trump’s comment about sh*thole countries was a statement of projection because honestly, the US is a f**king piece of sh*t nation. Go ahead and quote me, conservatives. This country has yet to live up to the ideals of its founding documents.”
[Text changes added to profanity from the original]
Johnson proceeded to do exactly what Bond suggested and quoted him on the Facebook page for the Renegade Institute for Liberty. He asked others “Do you agree with this radical SJW from BC’s English Department? Thoughts?” He then posted on his own Facebook account the following statement according to his complaint:
“Johnson then used his personal Facebook account to comment on what he had reposted: ‘Maybe he should move to China, and post this about the PRC in general or the Chinese Communist Party and see how much mileage it gets him. I wonder, do they still send the family the bill for the spent round?’”
Johnson said that the college would not allow him to read the complaint but subjected him to months of investigation.
After the investigation was finally concluded with no action by the Kern Community College District (which oversees the college), it stated that it would “investigate any further complaints of harassment and bullying and, if applicable, [taking] appropriate remedial action including but not limited to any discipline determined to be appropriate.”
That threat took on a more menacing meaning given the controversy involving John Corkins, vice president of the Board of Trustees of the Kern Community College District Board. Corkins declared in an open meeting that critics of Critical Race Theory should be “culled” from the faculty and “taken to the slaughterhouse.”
As shown by Corkins, it remains popular in California to pledge to wipe out conservatives and dissenters from faculty. There are comparably few left. Conservatives and libertarians have been gradually purged from many institutions.
A survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identified as “liberal” or “very liberal.” Only 2.5% identified as “conservative,” and only 0.4% as “very conservative.”
Likewise, a study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez found that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative. Another study found that 33 out of 65 departments lacked a single conservative faculty member.
Some sites like Above the Law have supported the exclusion of conservative faculty. Senior Editor Joe Patrice defended “predominantly liberal faculties” by arguing that hiring a conservative law professor is akin to allowing a believer in geocentrism to teach at a university. So, the views of roughly half of the judiciary and half of the country are treated as legitimately excluded as intellectually invalid.
We have also seen administrators and faculty treat public or private funds as a subsidy for radical policies. For example, Oberlin College abused a small family grocery store for years and racked up millions in costs and damages that it expected alumni to cover. There was no blowback for its president or administrators.
These cases continue unabated despite a long litany of losses for universities and colleges over free speech limits and faculty discipline. The reason is that it is still personally and professionally beneficial for these professors and administrators to attack those with dissenting viewpoints. While faith in higher education is at an all-time low and these schools are gushing money in litigation, there are few remaining dissenting voices on faculties and even fewer willing to resist retaliation by speaking up.
Settlements are now just a cost of doing business for the anti-free speech movement in higher education. The costs are born by taxpayers or donors who are expected to foot the bill for intellectual intolerance.
Texas won a big victory in the United States Court of Appeals in the long struggle over floating buoy barriers in the Rio Grande River to help block unlawful migration. In United States v. Abbott, the court ruled 11-7 in an en banc decision against the Biden Administration over the barrier. It is an interesting decision that included a sharp disagreement over the claim that the large numbers of migrants across the border constitute an “invasion” under Article I, Section 10, Clause 3 (“[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay”).
In its challenge, the Biden Administration claimed the placement of the buoys violated the Rivers and Harbors Act of 1899. The appellate panel and trial court previously ruled in favor of the federal government. However, both were overturned. The majority found that the specific stretch of the Rio Grande that was chosen by the state is not covered by the Rivers and Harbors Act because it is not “navigable.” The definition of navigable waters has long been a matter of dispute in the courts.
Yet, it was the invasion issue that had many of us watching for this decision. I have previously expressed doubts over this theory. I agree with Texas on its criticism of the Biden Administration’s disastrous handling of the border. The impact on Texas is devastating. However, I do not believe that it qualifies as an invasion under Article I.
The opinions deal with this issue in dicta rather than the central holding. Some judges felt that the court should have addressed the issue.
What is interesting is the concurring opinion of Judge James Ho that the meaning of “invasion” is a “political question.” As such, he believes that courts must defer to the Texas governor’s assertion that there is an invasion, at least so long as the governor is acting in “good faith.”
In his concurring opinion, Judge Andrew Oldham maintains that Ho is wrong about the necessity of the court in taking up the issue.
In her dissenting opinion, Judge Dana Douglas objects that this approach would have sweeping and destabilizing effects and “would enable Governor Abbott to engage in acts of war in perpetuity.”
Barbara Butch, the LGBTQ activist who was the center figure in the controversial “Last Supper” Paris Olympic scene is threatening to sue those criticizing her. Butch played the role (wearing a Christ-like halo) viewed by many as a spoof on Christ in the Last Supper. The creators insist that they were going for a type of “pagan party” of Olympic gods and sent a message of tolerance. Art experts have supported the creators and pointed to paintings that inspired the pagan motif. That is not exactly what was seen by millions of Christians who were deeply insulted by the parody.
The question is not the intent of the creators, but the intent of critics in denouncing the display and its participants.
The threat of legal action would not be especially serious in the United States where opinion is given robust protection in both criminal and civil cases. In France, however, free speech is in a free fall with the left pushing for the censorship and criminalization of an ever-expanding range of political and religious speech.
The ceremony itself had some truly powerful and stunning elements. I enjoyed the mix of music and imagery as well as the effort to show the diversity of France. However, other elements were more divisive or excessive. For example, the producers decided to use the ceremony to feature such elements as three young people hooking up for a “ménage à trois.” With many families watching with kids, many of us thought the scene was inappropriate for such an event. However, it was the supper scene that led to protests from clerics and critics. While claiming a message of “tolerance,” the scene was taken as yet another slap at religious elements in society. That is a debate that has continued to rage, particularly on the Internet.
Audrey Msellati, Butch’s attorney, posted a statement on Butch’s Instagram account that the DJ and activist will seek legal action after being “the target of an extremely violent campaign of cyber-harassment and defamation.” She is promising to file “several complaints against these acts.”
Clearly, any direct and intentional threats of violence against Butch should be prosecuted, as they can be prosecuted in the United States. However, the French laws sweep far more broadly in criminalizing opinion and what I have called “rage rhetoric.”
Once the cradle of individual liberty, France long ago became a global leader in the crackdown on free speech.
These laws criminalize speech under vague standards referring to “inciting” or “intimidating” others based on race or religion. For example, fashion designer John Galliano has been found guilty in a French court on charges of making anti-Semitic comments against at least three people in a Paris bar. At his sentencing, Judge Anne Marie Sauteraud read out a list of the bad words used by Galliano to Geraldine Bloch and Philippe Virgitti, including using ‘dirty whore” in criticism.
In another case, the father of French conservative presidential candidate Marine Le Pen was fined because he had called people from the Roma minority “smelly.” A French teenager was charged for criticizing Islam as a “religion of hate.”
That is why the homage in the Olympics to Liberté rang hollow for many of us in the free speech community. The French leaders have long been hypocritical in claiming to support free speech, such as marching in support of the Charles Hebdo magazine after the massacre after cracking down on its editors and writers.
Thomas Jolly, the artistic director for the opening ceremony of the Olympics, clearly wanted to be provocative in these scenes. He succeeded. Clearly, such provocative elements will spur debate and discussion, including heated opinions. Use of criminal sanctions for those expressing opinion would make a mockery of the display of fealty to French liberties that Jolly features in his ceremony.
JD Vance is a marked man. After accepting the nomination for vice president, Vance has been the subject of endless media attacks. Recently, Vice President Kamala Harris even questioned his “loyalty” to the country despite his serving as a Marine in the Iraq War. Yet, one of the most chilling attacks came from Germany where the publishing house Ullstein Buchverlage has stopped printing the sold-out German translation of Hillbilly Elegy, his 2016 autobiography.
As we have discussed previously in this country, it is the modern left’s equivalent of book burning. After all, why burn books when you can simply prevent their being printed under blacklisting campaigns?
In this country, we have seen the left successfully force book bans for writers and even justices who espouse opposing viewpoints. We have seen actual calls for book burning recently (here and here).
Ullstein is facing a high demand for Vance’s best-selling book Hillbilly Elegy, but has refused to print more copies due to his political viewpoints (unrelated to the book).
First published in 2016 and made into a movie in 2020, the book returned to the top position on The New York Times‘ bestseller list after Trump chose Vance as his running mate.
Some in the United States are already balking at the selling of any book by Vance. Seven Stories Press wrote, “Seven Stories Press is extremely thrilled to have never published JD Vance.”
Ullstein published the German translation of Hillbilly Elegy in 2017 and held the rights to reprints.
The company cited Vance’s allegiance with Trump and his politics as the reason in a statement to German media:
“At the time of its publication, the book made a valuable contribution to understanding the drifting apart of US society…In the meantime, he is officially acting alongside him and advocating an aggressively demagogic, exclusionary policy.”
German author Gerd Buurmann posted a mocking response that we should be happy that Ullstein had just thrown Vance’s book out of its catalogue and not into the fire – a reference to the notorious Nazi book burnings of the 1930s.
Other Germans have raised the same objections and referenced the painful history of book bans and burnings in Germany under the Nazis.
German readers want to read the book, which Ullstein acknowledged is one of the most influential works of this generation. However, because the company disagrees with his political viewpoints, it moved to block others from reading the book.
We have seen similar campaigns leading to the banning or burning of books by figures like JK Rowling because of her opposition to some transgender policies. The left now protests any programs on Rowling’s work and opposes the selling of her enormously popular Harry Potter series or even video games based on the series. When authors have defended her right to be published, they have also been subjected to cancel campaigns.
Yet, Ullstein’s decision is particularly chilling as a publishing house. Again, we have seen editors at publishing houses sign petitions to bar books by conservative figures like Justice Amy Coney Barrett from being published.
In 1933, thousands of books by Jewish and leftist writers were burned throughout Germany. Publishing houses further banned the printing of these books. The books were announced as corrupting the minds of German citizens. Many books were banned or burned on the basis of the authors being Jewish or known socialists or anarchists.
Now the left has developed a taste for censorship and blacklisting. Editors and publishing houses are blacklisting those with conservative or libertarian views as forms of dangerous viewpoints or disinformation.
Ullstein will, of course, not stop people from reading the work of JD Vance. While it may make it more difficult for Germans to find copies, ideas like water have a way of finding their way out. Blacklisting and censorship have not succeeded in killing a single idea. What it does is reveal the true character and values of those who want to prevent others from hearing opposing viewpoints.
I hope that our readers have read the response of NewsGuard’s Gordon Crovitz to my recent criticism of the company’s rating system for news sites. He makes important points, including the fact that the company has given high ratings to conservative sites and low ratings to some liberal sites. I have mutual friends of both Gordon and his co-founder Steve Brill, who have always sworn by their integrity and motivations. I do not question Gordon’s account of past ratings for sites.
However, I also welcome the opportunity to further this discussion over media rating systems and to explain why I remain unconvinced by his defense. It is a long overdue debate on the use and potential misuse of such systems.
As a threshold matter, I want to note that I am aware of conservative sites reviewed by NewsGuard that have been given favorable ratings. That is a valid distinction from past rating sites like the Global Disinformation Index (GDI).
Moreover, while I noted that NewsGuard has been accused of bias by conservatives and is being investigated in Congress, my primary objections are to rating systems as a concept for media sites. Before addressing that opposition, I should note that I still have concerns over bias from the email that was sent me, particularly just after a column criticizing the company.
Now to the main concern.
A Shield or a Sword?
In his response to me, Gordon argues that “I would have thought, including based on your recent book, that you’d especially welcome an accountable market alternative to censorship.”
I disagree with Gordon’s suggested dichotomy. As I argue in the column, rating systems are arguably the most effective means to silence opposing voices or sites. These systems are used to target revenue sources and have been weaponized by the current anti-free speech movement. They are used more as a sword than a shield by those who want to marginalize or demonetize a site.
We have seen such campaigns targeting various sites and individuals, led by political groups opposed to their viewpoints, including figures such as Joe Rogan. This includes Elon Musk and X after the reduction of censorship systems and the release of the “Twitter Files.” After being targeted by these campaigns for years, rating systems have been denounced by Musk as part of an “online censorship racket.”
Moreover, the use of private entities like NewsGuard is precisely what makes the current movement so insidious and dangerous. Whether by design or by default, rating systems are effective components of what I have described as a system of “censorship by surrogate.”
What NewsGuard is attempting is potentially far more impactful for the funding and viability of websites. Rather than an alternative, it can be an avenue for censorship.
I have also written about my concerns with the Global Alliance for Responsible Media and its use of rating systems to deter advertisers for targeted sites. The group states that it “unites marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.”
As the column discusses, NewsGuard seeks to position itself as a type of Standard & Poor’s rating system for media. The role would give the company unprecedented influence over the journalistic and political speech in America. The rating can be used to discourage advertisers and revenue sources for targeted sites. Just as S&P scores can kill a business, a media rating could kill a blog or website.
That is an enormous amount of power to be wielded by any organization, let alone a for-profit enterprise started by two self-appointed monitors of media. That is not meant to disparage Gordon and Steve, but to acknowledge that this is not just a hugely profitable but a hugely powerful enterprise.
It is also not a criticism of the founding principles. We have seen many organizations that began as faithful to principles of neutrality only to see those principles corrupted with time. Indeed, as we have previously discussed, the very principles of objectivity and neutrality are now rejected in many journalism schools.
The Criteria
While NewsGuard insists that its criteria is completely objective and neutral, that does not appear to be the case. The site’s standards include key determinations on whether some sites run statements that NewsGuard considers “clearly and significantly false or egregiously misleading.” (That appears part of the most heavily weighted criteria for credibility at 22 points).
The staff will determine if it believes that a site shows a tendency to “egregiously distort or misrepresent information.”
The staff decides if information is false and, if it is considered false by NewsGuard, whether the site “identifies errors and publishes clarifications and corrections, transparently acknowledges errors, and does not regularly leave significant false content uncorrected.” Thus, if you disagree with the claims of falsity or view the statement as opinion, the failure to correct the statement will result in additional penalties.
The site will also determine if it finds the sources used by a site to be “credible” and whether “they … egregiously distort or misrepresent information to make an argument or report on a subject.”
If the site decides that there are errors, it will lower ratings if the site does not “transparently acknowledges errors, and does not regularly leave significant false content uncorrected.”
The company pledges to combat “misinformation” and “false narratives.”
We have seen mainstream media use these very terms to engage in highly biased coverages, including labeling true stories or viewpoints “disinformation.”
Given these terms and the history of their use in the media, NewsGuards assurances boil down to “trust us we’re NewsGuard.” GDI made the same assurances.
This is not to say that some of these criteria cannot be helpful for sites. However, the overall rating of media sites is different from Standard & Poor’s. Financial ratings are based on hard figures of assets, earnings, and liabilities. “Liquidity” is far more concrete and objective than “credibility.” What NewsGuard does is fraught with subjectivity regardless of the motivations or intentions of individual raters.
The Res Ipsa Review
The inquiry sent to this blog reflects those concerns. The timing of the inquiry was itself chilling. I had just criticized NewsGuard roughly a week earlier. It is not known if this played any role in the sudden notice of a review of Res Ipsa.
One inquiry particularly stood out for me. The reviewer informed me:
“I cannot find any information on the site that would signal to readers that the site’s content reflects a conservative or libertarian perspective, as is evident in your articles. Why is this perspective not disclosed to give readers a sense of the site’s point of view?”
The effort of NewsGuard to label sites can have an impact on its ratings on credibility and transparency. Yet, sites may disagree with the conclusions of NewsGuard on their view of the content. What may seem conservative to a NewsGuard reviewer may be less clearly ideological to the host or blog.
Moreover, despite noting that it asked MSNBC to state its liberal bias, it is not clear if the company has suggested such a notice from many other sites from NPR to the New Republic. For example, is Above the Law supposed to warn readers that it takes a liberal perspective and regularly attacks conservatives? What about other academic blogs like Balkinization?
The point is not to say that they should be required to label their own views (though some sites choose to do so) but to ask whether all sites are asked to do so. If not, when is this demand made for sites? For some reviewers, a liberal perspective may simply seem like stating the obvious or unassailable truth.
Labeling
In fairness to NewsGuard, we all often engage in labeling as part of our discussions — both labeling ourselves and others. For example, I often acknowledge that I hold many libertarian views. However, I continue to write columns that run across the ideological spectrum and I continue to be attacked from both the right and the left for those columns.
Identifying yourself as a libertarian does not convey much information for readers. Many readers have erroneous views of libertarians as a monolithic group. (The public high school teacher of one of my kids told the class that libertarians were just conservatives who did not want to call themselves Republicans). In actuality, it is a group that runs from liberal to conservative figures who maximize individual rights. Labeling your site as libertarian is about as helpful as saying that it is utilitarian.
The suggestion in the email is that readers should be informed that anything they read is coming from a libertarian or conservative on the site. Yet, most law professor blogs are very liberal, but do not make the same type of warning.
We often discuss these labels in judging the diversity of faculties. Yet, that is based largely on surveys of professors self-identifying or the political registration of academics. It is admittedly a blunt tool, but there is little debate that faculties around the country are overwhelmingly liberal. Indeed, even sites like Above the Law have strived to defend “predominantly liberal faculties” as just reflecting the fact that most conservatives are simply wrong on the law.
There is always an overgeneralization in the use of such labels, but we try to take that into consideration in discussing the overall lack of diversity of viewpoints on campuses today.
Conclusion
Rating media sites is vastly different. You are often relying on the views of the reviewers that may be challenged by the site. Postings that challenge popular narratives are often denounced as false or disinformation by critics.
I am particularly concerned over the reported government contracts given to NewsGuard by the Biden Administration as well as agreements with teacher unions to help filter or rate sites. The Twitter Files have shown an extensive system of funding and coordination between agencies and these companies. The funding of such private rating or targeting operations is precisely what I have warned about in congressional testimony as a type of “censorship by surrogate.” The government has been attempting to achieve forms of censorship indirectly that it is barred from achieving directly under the First Amendment.
Consider those bloggers and scientists who were censored and denounced for voicing support for the lab theory on Covid 19 and other subjects from the efficacy of masks to the need to shutdown schools. They spent years having mainstream media figures denouncing them for refusing to admit that they were spreading disinformation or conforming to general views on these issues.
Political and legal commentary are rife with contested opinion over the facts and their implications. Having a company sit in judgment on what is fact and what is opinion is a troubling role, particularly when the rating is used to influence advertisers and financial supporters.
Once again, there are many people on the other side of this debate who have good-faith reasons for wanting a standardized set of criteria for news sources and commentary sites. I simply believe that this is a degree of influence that is dangerously concentrated in a small number of groups like NewsGuard.
N.B.: After this response ran, NewsGuard wrote me that Above The Law actually was marked down for failing to clearly delineate between news and opinion. It further said that the New Republic acknowledges its liberal take, so there is no issue on labeling. What is not clear is whether every site, including academic blogs, are asked to label themselves and who makes that decision on what label should apply.
Below is my column in The Hill on the recent notice that this blog is now being formally “reviewed” by NewsGuard, a company that I just criticized in a prior Hill column as a threat to free speech. The questions from NewsGuard were revealing and concerning. Today, I have posted the response of NewsGuard’s co-founder Gordon Crovitz as well as my response to his arguments.
Here are is the column:
Recently, I wrote a Hill column criticizing NewsGuard, a rating operation being used to warn users, advertisers, educators and funders away from media outlets based on how it views the outlets’ “credibility and transparency.” Roughly a week later, NewsGuard came knocking at my door. My blog, Res Ipsa (jonathanturley.org), is now being reviewed and the questions sent by NewsGuard were alarming, but not surprising.
I do not know whether the sudden interest in my site was prompted by my column. I have previously criticized NewsGuard as one of the most sophisticated operations being used to “white list” and “black list” sites. My new book, “The Indispensable Right: Free Speech in an Age of Rage,” details how such sites fit into a massive censorship system that one federal court called “Orwellian.”
For any site criticizing the media or the Biden administration, the most chilling words today are “I’m from NewsGuard and I am here to rate you.”
Conservatives have long accused the company of targeting conservative and libertarian sites and carrying out the agenda of its co-founder Steven Brill. Conversely, many media outlets have heralded his efforts to identify disinformation sites for advertisers and agencies.
Brill and his co-founder, L. Gordon Crovitz, want their company to be the media version of the Standard & Poor’s rating for financial institutions. However, unlike the S&P, which looks at financial reports, NewsGuard rates highly subjective judgments like “credibility” based on whether they publish “clearly and significantly false or egregiously misleading” information. They even offer a “Nutrition Label” for consumers of information.
Of course, what Brill considers nutritious may not be the preferred diet of many in the country. But they might not get a choice since the goal is to allow other companies and carriers to use the ratings to disfavor or censor non-nutritious sites.
The rating of sites is arguably the most effective way of silencing or marginalizing opposing views. I previously wrote about other sites supported by the Biden administration that performed a similar function, including the Global Disinformation Index (GDI). GDI then released a list of the 10 most dangerous sites, all of which are popular with conservatives, libertarians and independents. GDI warned advertisers that they were accepting “reputational and brand risk” by “financially supporting disinformation online.” The blacklisted sites included Reason, a respected libertarian-oriented source of news and commentary about the government. However, HuffPost, a far left media outlet, was included among the 10 sites at lowest risk of spreading disinformation.
When NewsGuard came looking for Res Ipsa, the questions sounded like they came directly from CGI. I was first asked for information on the financial or revenue sources used to support my blog, on which I republish my opinion pieces from various newspapers and publish original blog columns.
Given NewsGuard’s reputation, the email would ordinarily trigger panic on many sites. But I pay not to have advertising, and the closest I come to financial support would be my wife, since we live in a community property state. If NewsGuard wants to blacklist me with my wife, it is a bit late. Trust me, she knows.
NewsGuard also claimed that it could not find a single correction on my site. In fact, there is a location for readers marked “corrections” to register objections and corrections to postings on the site. I also occasionally post corrections,changes and clarifications.
NewsGuard also made bizarre inquiries, including about why I called my blog “Res Ipsa Liquitur [sic] – the thing itself speaks. Could you explain the reason to this non-lawyer?” Res ipsa loquitur is defined in the header as “The thing itself speaks,” which I think speaks for itself.
But one concern was particularly illuminating:
“I cannot find any information on the site that would signal to readers that the site’s content reflects a conservative or libertarian perspective, as is evident in your articles. Why is this perspective not disclosed to give readers a sense of the site’s point of view?”
I have historically been criticized as a liberal, conservative or a libertarian depending on the particular op-eds. I certainly admit to libertarian viewpoints, though I hold many traditional liberal views. For example, I have been outspoken for decades in favor same-sex marriage, environmental protection, free speech and other individual rights. I am a registered Democrat who has defended reporters, activists and academics on the left for years in both courts and columns.
The blog has thousands of postings that cut across the ideological spectrum. What I have not done is suspend my legal judgment when cases touch on the interests of conservatives or Donald Trump. While I have criticized Trump in the past, I have also objected to some of the efforts to impeach or convict him on dubious legal theories.
Yet, NewsGuard appears to believe that I should label myself as conservative or libertarian as a warning or notice to any innocent strays who may wander on to my blog. It does not appear that NewsGuard makes the same objection to HuffPost or the New Republic, which run overwhelmingly liberal posts. Yet, alleged conservative or libertarian sites are expected to post a warning as if they were porn sites.
NewsGuard is not alone in employing this technique. Mainstream media outlets often label me as a “conservative professor” in reporting my viewpoints. They do not ordinarily label professors with pronounced liberal views or anti-Trump writings as “liberal.”
Studies show that the vast majority of law professors run from the left to the far left. A study found that only 9 percent of law school professors at the top 50 law schools identify as conservative. A 2017 study found only 15 percent of faculties overall were conservative.
It is rare for the media to identify those professors as “liberal,” including many professors on the far left who regularly denounce conservatives or Republicans. It is simply treated as not worth mentioning. Yet, anyone libertarian or right of center gets the moniker as a warning that their viewpoint should considered in weighing their conclusions. Yet, NewsGuard is in the business of labeling people . . . and warning advertisers. It considers my writings to be conservative or libertarian and wants to know “Why is this perspective not disclosed to give readers a sense of the site’s point of view?”
It does not matter that my views cut across the ideological spectrum or that I do not agree with NewsGuard’s label. Indeed, while I clearly hold libertarian views, libertarians run a spectrum from liberal to conservative. The common article of faith is the maximization of individual rights, while there is considerable disagreement on many policies. Steven Brill is considered a diehard liberal. Would it be fair to add a notice or qualifier of “liberal” to any of his columns or opinions?
It does not matter. Apparently from where NewsGuard reviewers sit, I am a de facto conservative or libertarian who needs to wear a digital bell to warn others.
It is a system that includes what Elon Musk correctly called “the advertising boycott racket.” Musk was responding to another such group pushing a rating system as an euphemism for blacklisting. For targeted sites, NewsGuard is now the leading racketeer in that system. It makes millions of dollars by rating sites — a new and profitable enterprise with dozens of other academic and for-profit groups. They have commoditized free speech in blacklisting and potentially silencing others. If you are the Standard & Poor’s of political discourse, you can rate sites out of existence by making them a type of junk bond blog.
Yet, the fact that I have no advertisers or sponsors to scare off does not mean that NewsGuard cannot undermine the site. The company has reportedly received federal contracts, which some in Congress have sought to block. It is also allied with organizations like Turnitin to control what teachers and students will read or use in schools. The powerful American Federation of Teachers, which has been criticized for its far left political alliances with Democratic candidates, has also pushed NewsGuard for schools.
This is why my book calls for a number of reforms, including barring federal funds for groups engaged in censoring, rating or blacklisting sites. NewsGuard shows that such legislation cannot come soon enough.
N.B.: The original version of this column included MSNBC as an example of liberal sites that do not post their own ideological bent or label. I later heard from NewsGuard that they did indeed mark down MSNBC for failing to make such a disclosure, so I removed it from this blog column. I posted a response today on why I continue to oppose rating systems such as NewsGuard.
On the weekend, I ran a column critical of NewsGuard and its recent notification of this blog that it was being “rated.” NewsGuard co-founder Gordon Crovitz responded to that column the next day. We have previously exchanged emails on my concerns over rating systems generally, including the Global Disinformation Index (which is not related to NewsGuard). I noted the concerns over bias from conservatives and members of Congress, but my primary concern remains with the concept of a rating system for media sites and blogs. While NewsGuard has given high ratings to some conservative sites, I generally oppose media rating systems due to free speech concerns and the use of these systems by the current anti-free speech movement.
I have always found Gordon to be open and frank about these subjects and I wanted readers on the blog to hear the opposing view from him directly. He was kind enough to consent to my posting the following. I will be posting a response to Gordon separately in the hopes that we can use this controversy as a foundation for a much needed discussion of rating systems and their impact on free speech.
Here is his response:
Jonathan:
We welcome the publicity, but your complaints in your July 27 commentary in the Hill about NewsGuard seem based on some misunderstandings.
First, we launched NewsGuard in 2018 as an alternative either to the Silicon Valley platforms secretly putting their thumbs on the scale for news and information sites or for calls to have the government censor social media and other online speech. Digital platforms were (and are) secretly rating news and information websites, with no disclosure about their criteria and no way for the people running the websites even to find out how they were rated. The only other entity rating news and information sites at the time we launched was GDI, which as you have written is a left-wing advocacy group–which like the digital platforms does not disclose its criteria or let publishers know how they are rated (except when information escapes such as the top 10 list of “risky” sites, which as you noted are all conservative or libertarian sites).
As I have written as a (libertarian-leaning) conservative former publisher, including in this recent Washington Examiner article https://www.washingtonexaminer.com/opinion/3091369/advertisers-fear-supporting-journalism-heres-how-to-fix-that/, I wouldn’t trust the platforms or a left-wing advocacy group either. We launched NewsGuard as the transparent and apolitical alternative, with the goal of giving news consumers basic information about websites they encounter online.
We reach out to the people running news and information websites for several purposes. We want to be sure we correctly assess sites based on our nine criteria. We’re a journalistic enterprise, so would always reach out for comment before concluding a site fails any of our criteria. We often quote the people running websites to provide more context about their site, whether they fail any criteria or not. More than a quarter of the websites we’ve rated have taken steps, usually relating to greater transparency, to get higher ratings.
In your column, you asserted that NewsGuard treats liberal sites preferentially compared with how we treat conservative or libertarian sites. This is false, as the many high scores for conservative and libertarian sites–and low scores for liberal sites–makes clear. You’ll see examples in the Washington Examiner article I linked to above. (There are right-wing sites like OAN that get low ratings such as for its Dominion Voting Systems claims, and there are left-wing sites that get low ratings for false claims such as about Donald Trump.)
In your Hill article, you claimed that “it does not appear” that we expect left-wing sites to disclose their point of view to readers. You gave the example of MSNBC. I am attaching our publicly available rating for this website. You will see it fails our criterion relating to news/opinion for failing to disclose its orientation. The MSNBC website scores lower than Fox News using our criteria because MSNBC fails to disclose its orientation whereas the website for Fox News does disclose its. (MSNBC also fails our criterion for gathering and presenting responsibly due to claims it made about Trump, Ron DeSantis, Steve Bannon and others.)
We also anticipated even back when we launched that there would be calls for government censorship if secret and partisan ratings were the only ones available in the market. I would have thought, including based on your recent book, that you’d especially welcome an accountable market alternative to censorship.
Finally, I appreciated your obituary for Bob Zimmer and your calls for the Chicago Principles to be widely adopted. (Whether our UChicago fully lives up to them is a topic for another day–I prefer the more energetic approach of Ed Levi to today’s more appeasing practices.) More information about websites is an exercise of free speech, and when done with transparent apolitical criteria equally applied seems to me a market solution you should support, not criticize or fear.
For years, former CNN Anchor Lynne Russell was the familiar face of Headline News for the country. She may soon be making headlines again as the lead plaintiff in what could prove a major Second Amendment challenge in Washington, D.C. Russell is challenging the city’s prohibition on “off-body” carrying of weapons, including keeping a handgun in a purse. That type of off-body carry is precisely what may have saved Russell’s life in a shootout with an armed assailant in 2015. Russell’s nightmare began when the armed assailant grabbed her outside of their motel in Albuquerque, New Mexico and forced her into her room. He then threw her across the room on to the bed as her husband, Chuck De Caro, a former CNN correspondent, was coming out of the shower.
Russell then had the amazing calmness and control to suggest to her husband that there might be something in her purse that the man would want. Inside was her gun and De Caro pulled it out and exchanged fire with the man. He was shot three times but survived. The assailant did not.
Both Russell and De Caro showed amazing courage. The fact that De Caro could come out of a shower naked and immediately engage a gunman in a shootout is worthy of a Die Hard sequel.
Russell is now leading the fight for others, particularly women, who use off-body carry for self-protection. For many women, a holster is not a convenient option with dresses and other outfits. Indeed, there are guns and purses specifically designed for women to blend into clothing styles.
2344.1A licensee shall carry any pistol in a manner that it is entirely hidden from view of the public when carried on or about a person, or when in a vehicle in such a way as it is entirely hidden from view of the public.
2344.2A licensee shall carry any pistol in a holster on their person in a firmly secure manner that is reasonably designed to prevent loss, theft, or accidental discharge of the pistol.
It is not just a matter of style. A holster on a dress outfit is more likely to stand out and could serve as an attraction for felons who are seeking to steal a weapon.
The Russell challenge seems quite strong to me. Under the post-Bruen jurisprudence, it will be difficult for the District to show historical support for limiting gun rights to on-body-carry situations. While the District is citing a contemporary New Jersey law, that is not quite the historical support that the Court has previously demanded. The Court held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” To overcome that presumption “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
It is doubtful that any early gun laws barred carrying weapons off body. Indeed, the most common weapons like muskets necessarily were carried on horseback or kept at arm’s reach.
I have previously written how New York, D.C., and Chicago are examples of Democratic cities that routinely commit lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures. In 2008, the District of Columbia brought us District of Columbia v. Heller, the watershed decision declaring that the Second Amendment protects the individual right of gun possession. In 2010, Chicago brought us McDonald v. City of Chicago, in which the Court declared that that right is incorporated against state and local government.
These cities are the gifts that keep on giving for gun rights advocates. Politically, local officials are heralded for any gun control legislation, and they are rarely blamed for major losses that come later in the courts — losses that often expand the reach of prior cases.
The case is Russell et.al. v. District of Columbia et.al. Case number 2024-cv-1820.
We previously discussed the free speech lawsuit of Portland State University Professor Bruce Gilley who was blocked from the Twitter account of the University of Oregon’s Division of Equity and Inclusion after tweeting “All men are created equal.” The court just granted a preliminary injunction holding that there was a substantial likelihood that he would prevail on the merits against the University of Oregon.
Portland State University Professor Bruce Gilley was excluded from a Diversity Twitter page by the Communication Manager of the Division of Equity and Inclusion at the University of Oregon. (The manager is identified as “tova stabin” who the court notes “spells her name with all lowercase letters.”). Stabin has now left the school.
In Gilley v. Stabin, Judge Hernández previously offered this background:
On or about June 14, 2022, Defendant stabin, in her capacity as Communication Manager, posted a “racism interruptor” to the Division’s Twitter page, @UOEquity. The Tweet read “You can interrupt racism,” and the prompt read, “It sounded like you just said_________. Is that really what you meant?”
Plaintiff Bruce Gilley, a professor at Portland State University, responded to the Tweet the same day it was posted with the entry “all men are created equal.” Plaintiff is critical of diversity, equity, and inclusion (“DEI”) principles, and intended his tweet to promote a colorblindness viewpoint. Plaintiff tagged @uoregon and @UOEquity in his re-tweet. Also on June 14, 2022, Defendant stabin blocked Plaintiff from the @UOEquity account. Once he was blocked, Plaintiff could no longer view, reply to, or retweet any of @UOEquity’s posts….
Plaintiff later filed a public records request with the University of Oregon to inquire about the policy VPEI uses to block Twitter users. … The University initially responded that there was no written policy and that “the staff member that administers the VPEI Twitter account and social media has the autonomy to manage the accounts and uses professional judgment when deciding to block users.” …Plaintiff also asked whether other Twitter users had been blocked from @UOEquity, and the University responded that two other users were blocked. … Plaintiff asserts that “[b]oth of the other users have expressed politically conservative viewpoints, including criticizing posts of the @UOEquity account.” Am. Compl. ¶ 70.
On June 27, 2022, Defendant stabin responded to an email from University of Oregon employee Kelly Pembleton, who was helping respond to Plaintiff’s public records request. Defendant stabin sent the following in response to Pembleton’s request for a list of the users she had blocked on @UOEquity:
“Doesn’t take real long. I’ve only ever blocked three people. Here is the list. I’m assuming the issue is this guy Bruce Gilley. He was not just being obnoxious, but bringing obnoxious people to the site some. We don’t have much following and it’s the social I pay least attention to. Here’s a screenshot of everyone I’ve ever blocked. I hardly do it (and barely know how to).”
Minutes later, Defendant stabin sent another email to Pembleton about the records request. The email reads, in pertinent part:
“Oh, I see. It is Bruce who brought it. Not surprising. He was commenting on one of the “interrupt racism” posts, as I recall talking something about the oppression of white men, if I recall. Really, they are just there to trip you up and make trouble. Ugh. I’m around at home for a quick zoom about it.’
The court previously denied the university’s motion to dismiss. The University of Oregon then continued to spend public dollars to try to defend its right to censor academics and students in this arbitrary way. Now it has lost the key fight over the preliminary injunction.
In his decision, Judge Hernández zeroed in on the guidelines allowing for the censorship of offensive or hateful speech:
“Plaintiff has shown that the two provisions of the social media guidelines he challenges create a risk of censoring speech that is protected by the First Amendment. As Plaintiff points out, speech that is “hateful,” “racist,” or “otherwise offensive” is protected by the Constitution. Pl. Br. 3 (citing Snyder v. Phelps, 562 U.S. 443, 454 (2011); Cohen v. California, 403 U.S. 15, 25 (1971); Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1131 (9th Cir. 2018)). The Court held that the @UOEquity account was a limited public forum, meaning that any restrictions on speech must be reasonable and viewpoint-neutral. Op. & Ord. 25.5 Plaintiff is correct that the provisions allowing the Communications Manager to block “hateful,” “racist,” and “otherwise offensive” speech create a risk of viewpoint discrimination because “[w]hat is offensive or hateful is often in the eye of the beholder.” Pl. Br. 4. If Plaintiff was blocked for posting “all men are created equal” because the post was viewed as hateful, racist, or otherwise offensive, such blocking would violate the Constitution. Deleting or hiding the post for that reason would also violate the Constitution.”
That is why this decision could have a lasting impact for higher education. The Oregon language is not dissimilar from many schools limiting campus speech under vague guidelines.
Notably, we have discussed how these schools have been losing in federal courts in their effort to maintain censorship systems. Yet, administrators continue undeterred in pursuing these policies with the support of their faculty.
Oregon has long been known for radical viewpoints in academia. I previously criticized the school policy to monitor student speech on social media and off campus as part of its speech regulations.
It is unlikely that the legislature will object to this expensive fight to preserve the right to censor speech. The state itself has moved aggressively against free speech rights of doctors and others in areas like abortion. However, the people of Oregon should consider the use of their tax dollars to seek to limit the “indispensable right” of free speech and to give figures like stabin such discretion over what speech to allow on campus.
District Court Judge David Carter delivered a crushing blow against free speech rights in elementary schools in an outrageous case out of Orange County. Principal Jesus Becerra at Viejo Elementary punished a seven-year-old girl named B.B. in the lawsuit for writing “any life” under a “Black Lives Matter” picture. Judge Carter issued a sweeping decision that said that she has no free speech rights in the matter due to her age and that the school is allowed to engage in raw censorship. He is now being appealed.
The message from the school seems to be that black lives matter but free speech does not. The school found a kindred spirit in Judge David Carter.
After a lesson on Martin Luther King, B.B. gave her picture to a friend, believing the inclusive image of four shapes of different races and the words would be comforting to a friend. However, when that child showed the picture to a parent, a complaint was filed that B.B.’s picture was insensitive and offensive. Becerra responded by disciplining the child for her inclusive picture.
Becerra should be fired, but his extreme views and lack of judgment is hardly unique in education. The far greater damage was created by Carter’s opinion.
Judge Carter ruled that B.B. has no free speech to protect due to her age, but that “students have the right to be free from speech that denigrates their race while at school.”
Judge Carter added that “an elementary school … is not a marketplace of ideas… Thus, the downside of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation.”
The court leaves a vacuum of protected rights that he fills with what seems unchecked authority for the school: “a parent might second-guess (the principal’s) conclusion, but his decision to discipline B.B. belongs to him, not the federal courts.”
In my view, Judge Carter is dead wrong, though I expect he will find support among some of the judges on the Ninth Circuit.
The Court applies the famous ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), as a license for sweeping censorship and discipline. Yet, the Court held in Tinker that students have free speech rights and that any restrictions require evidence of “interference, actual or nascent, with the schools’ work or collision with the rights of other students to be secure and to be let alone.” It then imposes a high standard that it must “materially disrupt[] classwork or involves substantial disorder or invasion of the rights of others.” This disruption must be “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
However, what is more disturbing is the disconnection of the right from anything but a narrow functionalist view of free speech. In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I criticize the functionalist approaches that tie the protection of free speech to its function in advancing a democracy.
I argue for a return to the view of free speech as a natural or human right — a view that was popular at the beginning of our Republic but soon lost to functionalist rationales. Those rationales allow for the type of endless trade-offs evident in the Carter decision.
Carter’s functionalist or instrumentalist approach makes it easier to simply discard any free speech rights in elementary students. In my view, they have free speech rights as human beings as do their parents. Under Carter’s approach, schools can engage in a wide array of indoctrination by declaring opposing political and social views to be “disruptive.”
Ironically, my book criticizes Judge Carter in another case over his failure to consider free speech concerns. In his decision in the January 6th case involving John Eastman, Carter dismisses his arguments that he had a right to present his novel theory against certification of the election.
While many of us disagreed with Eastman, there was a concern over efforts to strip lawyers of their bar licenses and even use criminal charges against such figures. However, what concerned me the most was sweeping language used by Carter in his decision.
Carter’s narrow view of free speech and his expansive view of state authority is hardly unique. B.B. is devoid of free speech protections even in this outrageously abusive case. The reason is that she is not of an age where her speech is viewed as worthy of protection. It is an example of the distortive and corrosive effect of functionalism in free speech jurisprudence in my view.
Below is my column in the New York Post on the ruling against Nina Jankowicz in her defamation case. It turns out that calling opposing views defamation is no better than calling them disinformation.
Here is the column:
For free speech advocates, there are few images more chilling than that of Nina Jankowicz singing her now-infamous tune as “the Mary Poppins of Disinformation.” The woman who would become known as the “Disinformation Czar” sang a cheerful TikTok parody of “Supercalifragilisticexpialidocious” to rally people to the cause of censorship.
When the press caught wind of President Biden’s plan to appoint Jankowicz as head of the Department of Homeland Security’s new “disinformation board,” Fox News said she “intended to censor Americans’ speech.” The backlash was swift. Plans for the board were suspended, and Jankowicz resigned in 2022. She then sued Fox News for defamation.
On Monday, the case was dismissed. But Chief Judge Colm Connolly, a Delaware Democrat, didn’t just say it was legally unfounded — he demolished the claims of figures like Jankowicz that they are really not engaged in censorship.
These figures gleefully worked to silence others with the support of millions in public dollars for years. Yet, when exposed to criticism, they often portrayed themselves as victims with an obliging and supportive media.
They all took a page from Mary Poppins, who “taught us the most wonderful word!” In this case, the word is “disinformation”, and it is certainly not connected to “censorship.” Rather you are supposed to call the barring, blacklisting and throttling of opposing views “content moderation.”
Jankowicz took that not-so-noble lie to a new level. After losing her job, she launched a campaign soliciting funds to sue those who called her a censor. I was highly critical of these efforts as trying to use defamation as another tool to chill critics and shut down criticism. It was a telling lawsuit, as Jankowicz simply labeled criticism of her as “defamation” — just as she labeled opposing views “disinformation.” The objections to her work were called false and she insisted that she was really not seeking to censor people with her work.
Connolly made fast work of that effort. After holding that people are allowed to criticize Jankowicz as protected opinion, the court added:
“I agree that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true. On the contrary … censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications.
“The Disinformation Governance Board was formed precisely to examine citizens’ speech and, in coordination with the private sector, identify ‘misinformation,’ ‘disinformation,’ and ‘malinformation.’ … that objective is fairly characterized as a form of censorship.”
Of course, in America’s burgeoning censorship infrastructure, the entire decision is likely to be viewed as some form of disinformation, misinformation or malinformation. After all, even true facts can be deemed censorable by the Biden-Harris administration.
I testified previously before Congress on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” — described as information “based on fact, but used out of context to mislead, harm, or manipulate.”
Thus, referring to Jankowicz as engaged in censorship on this defunct board may be true, but could still be treated as “malinformation.”
As I discuss in my book, these setbacks are unlikely to deter the corporate, academic and government figures aligned in our current anti-free speech movement. Millions of government and private dollars are flowing to universities and organizations engaged in targeting or blacklisting individuals and groups. It is now a growing industry unto itself.
The new censors have gone corporate and mainstream. Silencing others is now a calling, a profession. They have literally made free speech into a commodity that can be packaged and controlled for profit.
Yet Confucius once said that “the beginning of wisdom is the ability to call things by their right names.” This opinion takes a large step toward such wisdom.
If figures like Jankowicz want to continue to make money silencing others, we can at least call them for what we believe they are: censors.
Jonathan Turley is a Fox News Media contributor and the Shapiro professor of public interest law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.” (Turley appears as a legal analyst on Fox, but nothing in this column is written on behalf of Fox Corp.)
The United States Court of Appeals for the Eighth Circuit has handed down a major ruling in Worth v. Jacobson in favor of the Second Amendment. The opinion by Judge Duane Benton upholds a lower court in striking down a Minnesota law limiting gun permits for persons 21 years old. It is a question that could find its way to the Supreme Court once splits among the circuits develop.
As noted by scholars such as Stephen Halbrook, it is also the first appellate court to rely on the Supreme Court’s recent decision in Rahimi, which gun rights advocates argued might be a break in the dam of Second Amendment protections. That dubious claim is even less compelling after reading this opinion.
Minnesota has joined states like New York and Illinois in advancing weak arguments to the benefit of gun rights advocates. It argued that, since the Founding, states have restricted guns in the hands of “irresponsible or dangerous groups, such as 18 to 20-year-olds.” That proposition was left virtually unsupported as was the suggestion that 18 to 20-year-olds are a public danger.
Moreover, the court ruled that it would not matter:
“Minnesota states that from the founding, states have had the power to regulate guns in the hands of irresponsible or dangerous groups, such as 18 to 20year-olds. At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”
Minnesota also argued that the plaintiffs were required to shoulder their burden in showing that they are covered by the Second Amendment. It noted that they “did not submit expert reports or facts about the Second Amendment’s text.” That argument is meritless. They are clearly “people” under the Constitution. The court held:
“Ordinary, law-abiding, adult citizens that are 18 to 20-year-olds are members of the people because: (1) they are members of the political community under Heller’s “political community” definition; (2) the people has a fixed definition, though not fixed contents; (3) they are adults; and (4) the Second Amendment does not have a freestanding, extratextual dangerousness catchall.”
The Worth decision by Judge Benton is a tour de force on the Second Amendment. It is well-reasoned and, in my view, right on the law.
For most of us, this election could not become more confusing. However, Rep. Jasmine Crockett (D., Tx.) may have added a whole new level of confusion for many in suggesting that Donald Trump may have been the latest victim of systemic racism among law enforcement in the United States.
Trump previously cited his alleged abuse in the criminal justice system as a point of shared experience with some in the black community. Crockett, however, seems to be willing to go further in suggesting that he may be the latest victim of a racist law enforcement system.
In the hearing with Secret Service Director Kimberly Cheatle, the failure to stop and hold Thomas Crooks was raised by both parties in an unprecedented failure of security. Crockett then got her chance and suggested that Trump may have come close to dying at the hands of white privilege.
“I want to talk about training and the fact that there was a little bit of confusion between this suspicious person, and this perceived threat situation, and it seems like a different analysis is being done. One of my questions is what training your officers are getting on bias.
I’ve learned over and over again, dealing with law enforcement, that there’s generally no perception of threat when it’s a young white male, even if he’s carrying a long gun. Yet a lot of times, at least in this country, when it comes to law enforcement, there’s a perception of threat simply because a person has a little bit more melanin in their skin.
…Often times, one of the things that we’ve consistently advocated for on my side — and when I say my side, I mean when we’re faced with a tragedy where law enforcement has made a mistake — is bias training and whether or not our officers are getting it. So I’m curious, in some of the training that you’re talking about that’s part of your budget, is bias training part of it?”
Cheatle responded with “Yes, that’s true.” (An apparent response to the training element).
Notably, Crockett began by getting Cheatle to acknowledge that this was not a failure due to DEI, or Diversity Equity and Inclusion, policies. She then suggested that further DEI training may be needed in light of the assassination attempt.
To be clear, there is no evidence that Crooks was allowed to walk away after being spotted with a “long gun.” The current theory is that Crooks hid the gun before the event.
Moreover, he was identified as a possible threat due to being found with a golf range finder. However, that was not considered a barred or threatening device by the Secret Service.
Yet, Trump may find common ground here with Vice President Kamala Harris who has long maintained that “We do have two systems of justice” and has added:
“I don’t think that most reasonable people who are paying attention to the facts would dispute that there are racial disparities and a system that has engaged in racism in terms of how the laws have been enforced. It does us no good to deny that. Let’s just deal with it. Let’s be honest. These might be difficult conversations for some, but they’re not difficult conversations for leaders, not for real leaders.”
Trump may be willing to have the “difficult conversation” as the now purported victim of white privilege in the dismissal of would-be presidential assassins.
Below is my Hill column on President Joe Biden shifting his position on the Supreme Court and agreeing to “limits” on the Supreme Court. This ran before President Biden finally consented to withdraw from the race. It makes this last-ditch effort even more tragic for his legacy. He resisted these calls for 50 years, including roughly four years of his presidency. He only succumbed in the final six months as he struggled to save his candidacy. It did not work, but his pledge will outlast his presidency.
As I mentioned in the column, the ploy might not work, and Biden might not make it past the convention. The pledge, however, will remain and now Biden is committed to the ill-conceived legislation. After what I called “succession by defenestration” in yesterday’s column, Vice President Kamala Harris will likely want to show continuity in fulfilling this pledge. Indeed, judging from her past statements, she may double down on pushing for new limits. The irony is that his offer did not close the deal with the party for Biden, but he will now likely seek to fulfill the deal in limiting the Court.
Here is the earlier column (without changes due to the announcement):
This week, President Joe Biden finally named a price. As a growing number of panicked Democrats moved to force him off the ticket before the convention, Biden has offered something that the far left has demanded for years: limiting the Supreme Court. It was another defining moment for Biden, and it was far from complimentary.
Winston Churchill once purportedly asked an English socialite at a dinner if her principles would prevent her from sleeping with him for 5 million pounds. The socialite admitted that it would be hard to turn down such a fortune. Churchill then offered five pounds. When his aghast antagonist asked, “What type of woman do you think I am?” Churchill replied “We’ve already established that. Now we are haggling about the price.”
This week, Biden finally stopped haggling and set his price.
According to the Washington Post, the president held a Zoom call with the left-wing Congressional Progressive Caucus, chaired by Rep. Pramila Jayapal (D.-Wash.) and co-chaired by Rep. Ilhan Omar (D-Minn.). He thrilled them by agreeing to “come out with a major initiative on limiting the court.” He added that he was looking to them for support because “I need some help.” Even the New York Times noted the timing as a shift in his position that would appeal to the far left of his party.
It was another reversal for the president prompted by political expediency like his flipping on the filibuster rule and, years ago, on abortion.
In the 2020 election, many of us were highly critical of Biden for refusing to reveal his position on packing the Supreme Court and other so-called reform proposals. It was one of the major issues in the election, but Biden refused to tell voters where he stood to avoid alienating both moderates and the far left. Liberal professors, pundits and politicians, including Sen. Elizabeth Warren (D-Mass.), continued to demand that the court be packed with an instant liberal majority.
During his administration, Biden sought to appease his base by establishing a commission that explored absurd, radical proposals for changing the court. As many of us predicted, Biden waited years and later admitted that he had no intention to pack the court. He then decided to run for reelection and faced a revolt in his party, including hysteria over his dismal polling numbers.
If those numbers were 10 points higher, the Supreme Court might be safe for another 10 years. However, it is now just another price for power.
In decades of public service, Biden has shown an impressive moral and political flexibility. He has shifted on almost every major issue as polls made his earlier positions unpopular, or when trying to appeal to a larger Democratic constituency. From abortion to gun rights to criminal justice, Biden does not allow principle to stand in the way of politics, and the politics today could not be more dire.
What is most striking about a term limits proposal is that it is completely removed from the substance of the left’s complaints. Ironically, while many believe that President Biden is too enfeebled to serve as president, no one has credibly made that claim about the older justices.
Oral arguments show that members such as Justice Clarence Thomas are active and impressive in questioning counsel in oral argument. One can certainly disagree with Thomas’s jurisprudential views, but there is no basis to question his mental acuity. The irony is crushing. Faced with calls for him to step aside due to his own cognitive decline, Biden is seeking to win reelection by pushing aside justices who are clearly more mentally fit for their own positions.
Term limits would hit conservatives harder than liberals on the court. It is reminiscent of President Franklin Delano Roosevelt’s transparent and nonsensical 1937 effort to appoint a new justice for any justice who reaches the age of 70 and refuses to resign.
It just so happened that the age rule would negate the elderly “Four Horsemen” who were standing in the way of his New Deal legislation and allow him to instantly pack the court with six new Democratically selected members. When the court suddenly began to approve his programs in what was called “the switch in time that saved nine,” Democrats dropped the scheme.
Biden appears set to try to limit the court through legislation rather than a constitutional amendment since he knows that he could never get an amendment through Congress or the requisite three-quarters of state legislatures. It is not clear whether the new scheme would pass constitutional muster. Ultimately, it would have to be reviewed by . . . you guessed it . . . the Supreme Court.
The Biden legislation will likely be no more consequential than his Supreme Court commission. But it will be a cathartic moment for the far left, and it dangles the prospect of other changes, including court packing, if Democrats can secure both houses of Congress.
Those calls will only increase as advocates call for changing the court “by any means necessary.” We have already seen protesters harass justices at their homes and law professors encouraging the mob to get “more aggressive” in targeting individual justices.
The saddest aspect of this announcement is not what it says about the Supreme Court. The court was designed by the Framers to withstand such attacks. It was designed for this very moment.
The saddest aspect is what it says about a president who is done haggling. With a mutiny building in his party, President Biden is signaling that everything must go in a political Black Friday clearance. The Supreme Court is just the latest political commodity. But Biden has to wonder if this is all worth the prize even if he is able to make it beyond the Democratic National Convention.
Tell us this, Mr. President: When the haggling is over, what will be left of your legacy beyond your final asking price?
Below is my column in the Hill on the withdrawal of President Joe Biden from the 2024 election. After weeks of Democrats and the media raising the alarm of his mental capacity, Biden finally gave up his public refusal to step aside. Harris will now be the nominee through succession by defenestration or being tossed from a window. Yet, there remains a lingering question of Biden’s capacity to serve for another six months as president.
Here is the column:
President Joe Biden’s decision to withdraw as the Democratic Party’s nominee solved an immediate problem for his party. Biden has plummeted in the polls as the vast majority of voters concluded that he is too diminished by age to serve another term. Yet, it has now created several new problems, including the obvious problem of a president who is viewed as incapable of running for an office that he continues to hold.
The Democratic Party essentially created its own political version of the 25th Amendment in forcing Biden off the ticket. This decision was about as voluntary as leaving a building by way of a window on the 46th floor. That is particularly the case when you are thrown out of the window by your closest friends.
The unseemly image of succession by defenestration will soon be whitewashed by a media that will praise Biden after weeks of declaring him incompetent and enfeebled.
That, however, leaves the lingering question after the fall. How can Biden remain in office when he is incapable of running for the office? Biden is notably vague about the reason for his withdrawal after maintaining for days that he will be the party’s nominee. He simply says that it is in the best interests of the country.
The Democratic establishment has two equally unappealing options.
First, it could argue that Biden was withdrawing out of recognition that he is no longer politically viable. But that makes a mockery out of the democratic process. Millions of people went through the primary elections to select him as their nominee. Now he would be set aside and replaced by a vote of the party establishment like a shift in the Russian politburo.
Second, it could admit that Biden was, as stated for weeks in the media and by figures like Special Counsel Robert Hur, greatly diminished both mentally and physically. However, that makes this withdrawal an admission that could trigger a fight under the 25th Amendment. The development could create a new constitutional controversy. The 25th Amendment was written with largely physical disabilities in mind. If a president is comatose, the incapacity is obvious and Section 4 allows the vice president and a majority of the Cabinet to sign a declaration to Congress that a president is incapable of holding office.
However, Harris is eager to avoid the image of Brutus in the dispatching of the president. To support such a declaration would risk Biden proclaiming “Et tu, Kamala?” to the nation. The key to succession by defenestration is not to be seen as the hand that pushes the president out the window. Politics follows the same rules as the mafia for capo di tutti i capi: Kill a don, never be a don. While sometimes honored in the breach in the mob, it is hardly an auspicious path for a politician.
There is, however, another intriguing possibility.
Section 4 provides that a president’s fitness can be put before Congress when the “Vice President and a majority of either the principal officers of the executive departments or such other body as Congress may by law provide.”
Previously Democrats have cited that language to suggest that they could create their own body to force former President Donald Trump out of office. Indeed, Rep. Jaime Raskin (D-Md.) sponsored legislation called the Oversight Commission on Presidential Capacity Act to create a commission empowered to examine a president to Congress on the president’s capacity. It would circumvent the necessity of getting Harris to be the primary hand that dispatched a president.
The question is whether Congress will now make this decision to warrant an investigation or even a Raskin-like bill. This is different than President Lyndon Johnson’s decision on March 31, 1968, that “I shall not seek, and I will not accept the nomination of my party for another term as your president.” That was before any primaries. In this case, Biden won a primary in which the Democratic Party obstructed anyone who would challenge him and barred any debate.
Millions voted for him, and tens of millions of dollars were contributed to his campaign. He is now withdrawing weeks before accepting the nomination. That unprecedented decision alone would warrant a House investigation into Biden’s continuing capacity to serve in an office that he no longer believes he can run to occupy after January 2025.
Before this decision, a special counsel cited President Biden’s diminished faculties as a reason not to indict him for unlawfully retaining and handling classified material. Now, the president is effectively saying that, in addition to being allegedly too diminished to be prosecuted, he is too diminished to run for the office that he currently holds.
The question is whether Biden has ended the fight to retain his nomination only to trigger a fight to retain his office.
Below is my column in the Hill on the recent report of the House Judiciary Committee and the disclosure of yet another effort to silence opposing viewpoints by squeezing the revenue of individuals or groups, including Elon Musk and Joe Rogan.
Here is the column:
Few Americans have ever heard of the Global Alliance for Responsible Media, let alone understand how it shapes what they read and hear in news and commentary. That may soon change.
An alarming new report of the House Judiciary Committee details this organization’s work to censor conservative and opposing viewpoints in the media by targeting figures such as Joe Rogan and entire social media platforms such as X (formerly Twitter).
It is part of a massive censorship system that a federal court recently described as “Orwellian.” The sophistication of this system makes authoritarian regimes like China’s and Iran’s look like mere amateurs in censorship and blacklisting.
In my new book, “The Indispensable Right: Free Speech in the Age of Rage,” I discuss our history of speech crackdowns and how this is arguably the most dangerous anti-free speech period that we have faced as a nation. The reason is an unprecedented alliance of government, corporate, academic and media institutions supporting censorship and the targeting of largely conservative viewpoints.
As discussed in the book, there is a crushing irony to the current anti-free speech movement. During the Red Scare and the McCarthy period, it was the left that was targeted with blacklisting, censorship and arrests. It is now the left that has constructed a global censorship system that exceeds anything that Joe McCarthy even dreamt of in the control of news and commentary.
Through the years, I have testified repeatedly in Congress on this system supported enthusiastically by President Biden and his administration. It has proven to be a frustrating game of whack-a-mole for civil libertarians. The Democrats in Congress have uniformly opposed any investigation or action on censorship while denying for years that there was a coordinated effort between government and corporations. When we were successful in uncovering components of this system, they were often quickly shut down as the work shifted to other components and assets.
One of the most insidious efforts has been to strangle the financial life out of conservative or libertarian sites by targeting their donors and advertisers. This is where the left has excelled beyond anything that has come before in speech crackdowns. Years ago, I wrote about the Biden administration supporting efforts like the Global Disinformation Index to discourage advertisers from supporting certain sites. All of the 10 riskiest sites targeted by the index were popular with conservatives, libertarians and independents. That included Reason.org and a group of libertarian and conservative law professors who simply write about cases and legal controversies. The Global Disinformation Index warned advertisers against “financially supporting disinformation online.” At the same time, HuffPost, a far-left media outlet, was included among the 10 sites at lowest risk of spreading disinformation.
Once that index’s work and bias was disclosed, government officials quickly disavowed the funding. It was a familiar pattern. Within a few years, we found that the work had been shifted instead to groups like the Global Alliance for Responsible Media, which is the same thing on steroids. It is the creation of a powerful and largely unknown group called the World Federation of Advertisers, which has huge sway over the advertising industry and was quickly used by liberal activists to silence opposing views and sites by cutting off their revenue streams.
These censorship groups typically proclaim that they are merely trying to promote “brand safety” when they target for suppression the same sites that challenge the political and media establishment. The group states that it “unites marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.”
That “harmful content” seems to be the very same sites long targeted by the Biden administration and its allies in business, the media and academia.
The internal communications of these censorship groups demonstrate their contributors’ underlying agenda. In one conversation between Global Alliance for Responsible Media co-founder Rob Rakowitz and individuals with an associated “GroupM,” two executives explained to Rakowitz how they identified sites that they did not like and simply monitored them until they could find something that crossed the line. An example is the Daily Wire, a site hated by liberals for its conservative viewpoints and critiques of mainstream media.
In describing how they work to bag such sites, John Montgomery, executive vice president of Global Brand Safety, explained: “There is an interesting parallel here with Breitbart. Before Breitbart crossed the line and started spouting blatant misinformation, we had long discussions about whether we should include them on our exclusion lists. As much as we hated their ideology and bulls–t, we couldn’t really justify blocking them for misguided opinion. We watched them very carefully and it didn’t take long for them to cross the line.”
In other words, they preselected the sites and then followed their every move like a patrol unit following a car to wait for them to go one mile per hour over the limit. This is called “deplatforming,” a favorite term from higher education, whereby liberal groups organize to shout down and block speakers with opposing views. The Global Alliance for Responsible Media is too sophisticated to simply bullhorn groups into silence. Instead, it strangles them financially.
Those who do not yield, from Elon Musk’s X to mega-podcaster Joe Rogan, were quickly added to the list to be deplatformed. Musk is particularly dangerous because he was responsible for blowing the lid off the censorship system by releasing the “Twitter Files,” detailing coordination between government and social media companies to silence citizens and groups. To this day, companies like Facebook continue to fight efforts to disclose their own censorship files.
Musk has threatened to sue in light of the report. “Having seen the evidence unearthed today by Congress, X has no choice but to file suit against the perpetrators and collaborators in the advertising boycott racket,” he said.
A lawsuit would be difficult to maintain. These groups have a right to organize to silence opposing views just as book burners have a right to burn books. However, deplatforming, book burning and blacklisting have long been anathema to free speech values. They are efforts to prevent opposing views from being heard rather than to respond to such views on the merits.
And Musk is right in describing this as a “racket.” There is now a disinformation cottage industry where a wide array of academic and private groups are raking in a fortune targeting individuals and other groups for blacklisting, banning and censorship.
There are other groups working in tandem in this effort. For example, Newsguard was created by to Chief Executive Officers Steven Brill and Gordon Crovitz to monitor and effectively blacklist media that they deemed misinformative or false. The site uses mainstream journalists to rate news sites, even though many of these sites have challenged the bias of the mainstream media.
Once again, the apparatus serves to shield that bias in targeting disfavored sites. The Biden administration has extended contracts with Newsguard to incorporate the system, and it is even being used in schools, despite complaints that it shows the very same pro-Democrat and left-wing bias.
There is a reason why projects such as the Global Disinformation Index have been largely concealed from public view. There is a reason Facebook and other companies have fought mightily to conceal their own censorship files. The anti-free speech movement is not a popular movement.
A majority of the public continues to oppose censorship. This is a movement that came from higher education and has been pushed by the political and media establishment, not the public.
That is why many of us in the free speech community are hoping that the 2024 election will become a referendum on censorship. Biden has given a full-throated endorsement of these efforts, even to the point of claiming that companies that do not censor American citizens are “killing people.” He presides over the most anti-free speech administration since John Adams.
So now, let him defend it with voters.
In 1800, that did not work out well for Adams, who was defeated by Thomas Jefferson. Jefferson had run on restoring freedom of speech. The public can now flip the script. It is time to defund and deplatform America’s censors.
Below is my column in Fox.com on renewed attacks on free speech and the apologists for this anti-free speech movement, including most recently comedian Jon Stewart. From moves to amend the First Amendment to mocking those being targeted, the left is pushing back at polls and efforts to restore free speech values.
Here is the column:
“The First Amendment Is Out of Control.” That headline in a recent column in the New York Times warned Americans of a menace lurking around them and threatening their livelihoods and very lives. That menace is free speech, and the media and academia are ramping up attacks on a right that once defined us as a people.
In my new book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how we are living in the most dangerous anti-free speech period in our history. An alliance of the government, corporations, academia, and media have assembled to create an unprecedented system of censorship, blacklisting, and speech regulation. This movement is expanding and accelerating in its effort to curtail the right that Supreme Court Justice Louis Brandeis once called “indispensable” to our constitutional system.
It is, of course, no easy task to convince a free people to give up a core part of identity and liberty. You have to make them afraid. Very afraid.
The current anti-free speech movement in the United States has its origins in higher education, where faculty have long argued that free speech is harmful. Starting in secondary schools, we have raised a generation of speech phobics who believe that opposing views are triggering and dangerous. Anti-free speech books have been heralded in the media. University of Michigan Law Professor and MSNBC legal analyst Barbara McQuade has written how dangerous free speech is for the nation. Her book, “Attack from Within,”describes how free speech is what she calls the “Achilles Heel” of America, portraying this right not as the value that defines this nation but the threat that lurks within it.
McQuade and many on the left are working to convince people that “disinformation” is a threat to them, and that free speech is the vehicle that makes them vulnerable. It is a clarion’s call that has been pushed by President Joe Biden who claims that companies refusing to censor citizens are “killing people.” The Biden administration has sought to use disinformation to justify an unprecedented system of censorship.
As I have laid out in testimony before Congress, Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over “critical infrastructure” to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.” So, you can cite true facts but still be censored for misleading others.
The media has been running an unrelenting line of anti-free speech columns. Recently, the New York Times ran a column by former Biden official and Columbia University law professor Tim Wu describing how the First Amendment was “out of control” in protecting too much speech. Wu insists that the First Amendment is now “beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.” He bizarrely claims that the First Amendment “now mostly protects corporate interests.”
So free speech not only threatens your life, your job, and your privacy, but serves corporate masters. Ready to sign your rights away?
Wait, there is more.
There is a movement afoot to rewrite the First Amendment through an amendment. George Washington University Law School Professor Mary Anne Franks believes that the First Amendment is “aggressively individualistic” and needs to be rewritten to “redo” the work of the Framers.
Her new amendment suggestion replaces the clear statement in favor of a convoluted, ambiguous statement of free speech that will be “subject to responsibility for abuses.” It then adds that “all conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.” Franks has also dismissed objections to the censorship on social media and insisted that “the Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates . . . If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet but consider the benefits of remaking the Internet in the image of the university.”
Franks is certainly correct that those “unlikeable voices” are rarely heard in academia today. As discussed in my book, faculties have largely purged conservative, Republican, libertarian, and dissenting professors. The discussion on most campuses now runs from the left to far left without that pesky “cacophony” of opposing viewpoints.
Experts at leading universities were fired or stripped of positions for questioning COVID claims. Conservative faculty have been hounded from schools and conservative sites have been targeted by government-funded programs. Thousands have been banned from social media.
What is particularly maddening for many in the free speech community is how the left has responded to opposition to censorship and blacklisting. Some are claiming to be victims by those who criticize their work to target individuals and groups as disinformation.
Others, like comedian Jon Stewart mock those who object to the erosion of free speech by noting that conservatives are making these objections on television or online. So, according to Stewart, how can there be a problem if you are able to still object? The suggestion is that there can be no threat to free speech unless people are completely silenced.
Stewart insists that “we are surrounded by and inundated with more speech than has ever existed in the history of communication.” In other words, because people can still speak, the well-documented systems of censorship and blacklisting must not be so bad.
It is not clear what Stewart would accept as sufficient censorship. In universities, polls show both faculty and students afraid to speak openly. The government has funded a host of programs to pressure the source of revenue of conservative sites and to target dissenting voices. Yet, because we are raising objections to these trends, Stewart laughs at the very notion that free speech is under fire. After all, he is doing just fine.
What appears to be a punchline to Stewart is a bit more serious for others who have their livelihoods threatened by the anti-free speech movement. Stewart has the benefit of being a liberal comedian on a liberal network. Try being a conservative comedian today getting air time on most cable outlets or college campuses. Like so many academics, everything seems just fine to them. With the purging of opposition viewpoints, those who remain have little to complain about.
The effort to assure citizens that “there is nothing to see here” is belied by a massive censorship system described by one federal court as “Orwellian.” Conservatives face cancel campaigns and blacklisting in academic and media forums.
As I discussed in my new book, conservative North Carolina professor Dr. Mike Adams faced calls for termination for years with investigations and cancel campaigns. He repeatedly had to go to court to defend his right to continue to teach. He was then again targeted after an inflammatory tweet. He was done. Under pressure from the university, he agreed to resign with a settlement. Four years ago this month, Adams went home just days before his final day as a professor. He then committed suicide.
Many others have resigned or retired. For them, the anti-speech movement takes away everything that brings meaning to an intellectual life from publications to associations to even employment. It is a chilling message to others not to join the “cacophony of … unlikeable voices.”
Some citizens seem sufficiently afraid or angry to surrender their free speech rights. They have lost faith in free speech. For the rest of us, their crisis of faith cannot be allowed to become a contagion. We must have a reawakening in this country that, despite our many divisions, we remain united by this indispensable human right.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
I have previously written how President Joe Biden is the most anti-free speech president since John Adams. For his part, Biden has continued to double down on his anti-free speech policies with the appointment of figures who have long supported bans and other speech controls. The latest such appointment is Andy Volosky, who was made deputy director of platforms for the White House’s Office of Digital Strategy. Volosky has been outspoken in support of banning former president Donald Trump from social media platforms.
In my new book, The Indispensable Right: Free Speech in an Age of Rage, I lay out the chilling comparisons between the Adams and Biden Administrations in the crackdown of free speech. For Adams, that led to defeat in 1800 when Jefferson ran in part on restoring free speech. To my surprise, Trump and his fellow challengers in this election have not made free speech a central issue to force Biden to defend the massive censorship system supported by his Administration.
The public does not support censorship. This is a movement that originated in higher education and has been pushed by the political and media establishment, not the voters. Volosky will now help direct digital strategies for the White House. He previously praised the banning of Trump, asking “What took them so long?” in a 2021 blog post.
In Volosky’s blog post, titled “A New, and Hopefully Welcome, Standard,” he warned that “Twitter still allows the accounts of various world leaders, governments, and spokespeople, who use Twitter for what one can only describe as propaganda as cover for autocracy, to continue to use their platform.”
He praised how Democrats have “long advocated for regulating the [social media] platforms” and emphasized how active social media users like himself and others can “keep the platforms honest.”
He added that
“We can play a role in keeping the platforms honest and improving the positive role of social in people’s lives…It’s past time for the platforms to take content moderation and user safety seriously; as social media professionals, we should be ready and eager to make that happen, and we hope that [banning Trump] can be a small step in getting that ball rolling.”
The presidential debate last night was chilling to watch as President Joe Biden clearly struggled to retain his focus and, at points, seemed hopelessly confused. The winner was clear: Special Counsel Robert Hur. For months, Democrats in Congress and the media have attacked Hur for his report that the president came across as an “elderly man with a poor memory.” Hur concluded that prosecuting Biden would be difficult because a jury would view him as a sympathetic figure of a man with declining mental capabilities. That was evident last night, and the question is whether a man who was too diminished to be a criminal defendant can still be a president for four more years.
Hur laid out evidence that President Biden had unlawfully retained and mishandled classified evidence for decades. However, he also concluded that “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” He found that “it would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.”
What has followed is the usual pile-on in the media with legal analysts, press, and pundits denouncing Hur for his findings.
Hur likely does not anticipate any apologies even as commentators on CNN and MSNBC admit that there are now unavoidable questions of Biden’s ability to be the nominee.
Democrats have repeatedly insisted that Hur did not find Biden diminished and that he actually was impressed by his memory and mental acuity. Hur contradicted that in his own testimony before Congress.
Indeed, the denial campaign took on a bizarre character, particularly when Rep. Pramila Jayapal (D., Wash.) insisted that Hur “exonerated” Biden. Hur pushed back: “I need to go back and make sure that I take note of a word that you used, ‘exoneration.’ That is not a word that is used in my report and that is not a part of my task as a prosecutor.”
Jayapal shot back, “You exonerated him.”
Hur responded, “I did not exonerate him. That word does not appear in the report.”
The debate showed not only what Hur saw but why the Justice Department is making a clearly laughable privilege claim to delay any release of the audiotape until after the election.
Below is my column in USA Today on why the opponents of President Joe Biden should make free speech the focus of this election. With the Supreme Court taking an off ramp in Murthy v. Missouri on Internet censorship, the free speech community is left, for now, with the political process to protect free speech. It is a potentially unifying issue for many Americans who are alarmed by the current anti-free speech movement. I have previously written that the Biden Administration has chilling analogies to the Adams Administration in the weaponization of the legal system and the crackdown on free speech. What should most concern Biden is the possibility of another aspect of history repeating itself: a defeat like the one in 1800.
The 2024 election is looking strikingly similar to the election of 1800 and, if so, it does not bode well for Biden. In my book “The Indispensable Right: Free Speech in an Age of Rage,” released last week, I discuss our long struggle with free speech as a nation. It is an unvarnished history with powerful stories of our heroes and villains in the struggle to define what Justice Louis Brandeis called our “indispensable right.”
One of the greatest villains in that history was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents – including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.
Government efforts to limit free speech are Orwellian
We are now seeing what is arguably the most dangerous anti-free speech movement in our history. President Joe Biden is, in my view, the most anti-free speech president since Adams. Under his administration, we have seen a massive censorship system funded and directed by the government.A federal judge described the system as “Orwellian” in its scope and impact.
Biden has repeatedly called for greater censorship and accused social media companies of “killing people” by not silencing more dissenting voices. Other Democrats such as Sen. Elizabeth Warren of Massachusetts have pushed for restrictions on “unacceptable” speech. The Biden administration seeks to censor even true statements as disinformation.
For example, I testified before Congress last year on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.”
The left has picked up the cudgels of censorship and blacklisting once used against them. During the McCarthy period, liberals were called “communist sympathizers.” Now, conservative justices are called“insurrectionist sympathizers.”
Candidates should call out Biden on censorship
In this election, Robert F. Kennedy Jr., Jill Stein, Donald Trump and Cornel West should talk about the threats against free speech at every debate and stump speech. They will have to overcome a news media that has been complicit in the attacks on free speech, but these candidates can break through by raising it as a key issue dividing Biden from the rest of the field.
So far, the anti-free speech movement has flourished largely in the echo chambers of academia and the media. It is time for the public to render its judgment.
As discussed in my book, we are hardwired for free speech. It is in our DNA. Despite these periods of crackdowns on free speech, we have always rejected those who wanted to regulate the views of others. Jefferson called the Federalists “the reign of the witches.” (Ironically, Jefferson would himself prosecute critics, though not to the same extent as Adams).
Attacks on free speech have returned with a vengeance before another presidential election. After fighting in the courts and in the public to expand censorship, Biden should now have to defend it with the voters. Let’s have at it, as we did in 1800.
Free speech is again on the ballot. It is time for the public to decide.
A new poll conducted by NORC at the University of Chicago (commissioned by the Foundation for Individual Rights and Expression) shows that only 28% of Americans have a lot of trust in higher education. Academia has continued to alienate much of the country as an orthodox echo chamber. As with media outlets, the result has been falling interest and trust in these institutions. The poll asked, “How much confidence, if any, do you have in U.S. colleges and universities?”
Only 28% said they had a “great deal of confidence in colleges and universities.” Not surprisingly, given the ideological balance at most schools, the highest levels of trust came from Democrats and liberals. However, even this group only showed a 40% high confidence rate. Among Republicans, it drops to 12% and among independents it drops to 28%.
For most businesses, such negative reactions would be viewed as catastrophic. For academia, it will not matter a whit.
It is still personally beneficial for professors and administrators to push ideological agendas and maintain the lack of intellectual diversity on campuses. These professors are not challenged in their writings or their statements. They dominate publications, awards, and associations. In the meantime, these schools still receive sufficient support from alumni and, in the case of public universities, public funding.
This could not come at a worse time as many decide that college is simply not worth the money. At the same time, falling birthrates are impacting dropping applications. Others have little interest in going to institutions where they must hide their political viewpoints or values.
We have seen the same phenomenon in the media where media outlets are collapsing in viewership or readership, but reporters are resisting every effort to return to a more neutral and objective basis for coverage. Recently, the Washington Post’s new publisher and CEO William Lewis dropped a truth bomb on his writers by telling them “Let’s not sugarcoat it…We are losing large amounts of money. Your audience has halved in recent years. People are not reading your stuff. Right. I can’t sugarcoat it anymore.”
The response from the media has been a campaign against Lewis and another editor tasked with saving the newspaper from itself. The New York Times, National Public Radio, and other outlets have piled on Lewis with a series of attack pieces. This is being actively and openly supported by reporters at the Post and could well work in pressuring owner Jeff Bezos. The result will be to stay the course of plunging trust and readership at a paper that is hemorrhaging money and readers.
We need great universities and great newspapers as a nation. We need Princeton and the Post. That is why this trend is so alarming. These are hardened silos that seem impenetrable to efforts to restore trust in their product.
The Kindle and audiotape versions are now immediately available. The book itself can be mailed directly from Amazon or purchased locally. We were surprised that Barnes & Noble put in on display a couple days early.
This book has been 30 years in the making for me. It is a relief to see it released at long last. While the book challenges the anti-free speech movement sweeping over our campuses, corporations, and Congress, I hope that it will also offer some common grounds on a core constitutional value that defines us as a people.
From the book:
“We are justifiably proud of our protection of free speech, particularly at a time when the right is in decline around the world. Yet our often mythic view of free speech ignores our systemic denial of this right. If we are to understand this right, we have to recognize our history through the figures and failures that shaped us. We have to ask difficult questions about the limits of our tolerance for the speech of others, including those who we view as hateful or harmful. We cannot focus on just the redemptive moments when our rage subsided and reason pre- vailed. We remain a nation grappling with what free speech means to us as a people. What follows is meant to be the unvarnished story of free speech in America. For better or worse, it is our story.”
“Jonathan Turley’s magnum opus should be required reading for everyone who cares about free speech—certainly including anyone who questions or criticizes strong free speech protection. This a unique synthesis of the historical, philosophical, artistic, and even physiological bases for protecting free speech as a right to which all human beings are inherently entitled, and Turley provides riveting accounts of the courageous individuals, throughout history, who have struggled and sacrificed in order to exercise and defend the right. The Indispensable Right is an indispensable book.” —Nadine Strossen, former president of the American Civil Liberties Union
“Brilliant and intellectually honest, Jonathan Turley has few peers as a legal scholar today. With The Indispensable Right, he has given us a robust reexamination and defense of free speech as a right. Rich with historical content and insight, this superbly-written book calls out both the left and the right for attacks on free speech while offering in the final chapter a path forward.” —William P. Barr, former Attorney General and author of the No. 1 New York Times bestseller One Damn Thing After Another.
“This efficient volume is packed with indispensable information delivered with proper passion. Jonathan Turley surveys the fraught history of “the indispensable right” and today’s dismayingly broad retreat from its defense. He is especially illuminating on how the concept of “harm” from speech has been broadened to serve the interest of censors.” —George F. Will, Pulitzer Prize winner and Washington Post columnist.
“The First Amendment has consumed Jonathan Turley for more than thirty years. Lucky for us that he waited until now, amidst a climate of unprecedented rage rhetoric, to deliver a master class on the unvarnished history of free speech in America. The Indispensable Right is enlightening and engaging. It is also cautionary tale against state overcorrection of the often acrimonious, free exchange of ideas that are an essential part of the human experience.” —Michael Smerconish, host of CNN’s “Smerconish”
“During these often-bitter times, Jonathan Turley is my “go-to” commentator for smart, clear and honest analysis on any difficult legal controversy.” —Jim Webb, former Democratic U.S. Senator, Secretary of the Navy, and bestselling author
“Jonathan Turley’s book is the rarest of accomplishments: a timely and brilliantly original yet disciplined and historically grounded treatment of free speech. He dispels the view that our current social turmoil is “uncharted waters”—from the 1790’s Whiskey Rebels to the 1920’s Wobblies to the 1950’s communists, we’ve been here before—and argues persuasively that free speech is a human need and that we must resist the urge to restrict speech as “disinformation” or “seditious” or offensive to “woke” sensibilities.” —Michael B. Mukasey, former Attorney General and U.S. District Judge
“Jonathan Turley is one of the most astute and most honest analysts of the intersection of politics and law. Thirty years in the making, this book brilliantly proposes means for preserving the most important Constitutional right: the right to free speech. Elegantly written, exhaustively researched, and passionately argued, Turley has given us a superb and necessary tract for our time.” —Stephen B. Presser, Raoul Berger Professor of Legal History Emeritus, Northwestern University School of Law
“Jonathan Turley recognizes free speech as an essential good—an activity that is central to our very nature as human beings. This is in sharp contrast with those who defend free speech as merely instrumental to some other value, like democracy or the pursuit of truth; rationales that are then used to justify limiting speech in ways that obstruct human flourishing. In this important book, he explains why free speech has historically come under threat during periods of rage and proposes policies that will protect freedom of speech from those who would today destroy this indispensable right.” —Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
“The Indispensable Right is a courageous, provocative case by one of America’s most prolific public intellectuals for resurrecting natural law or embracing an autonomous basis for the protection of free speech. Not all First Amendment defenders will be persuaded––but one needn’t sign on to Turley’s robust view of free speech to appreciate the unique clarity and deep historical research he brings to his argument. Read this insightful book to understand the peril of today’s broad-based assault on free speech.”
—Michael J. Glennon, Professor of Constitutional and International Law, Tufts University, author of Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era.
“A vigorous defense of free speech, a right enshrined but often hobbled or outright abrogated. A smart book that invites argument—civil argument, that is, with good faith and tolerance.”
—Kirkus Book Reviews
“Turley has written a learned and bracing book, rigorously detailed and unfailingly evenhanded. For all his grim recounting of the assaults on free speech, his is ultimately a buoyant book.”
For months, I have been expressing disbelief that Hunter Biden and his defense team were going to take the gun case to trial. Even on the eve of the trial, I thought that the defense might snap into sanity and plead out the case. The reason was simple. A guilty plea would have materially improved the chances that Hunter could get probation and avoid jail by accepting responsibility. Conversely, a trial in a case with overwhelming evidence of guilt would make it less likely that a judge would depart from the guidelines at sentencing. Nevertheless, Hunter went forward with a nullification strategy and, in so doing, it may have nullified his best chance to reduce the risk of jail time.
After the verdict, I have been stating that jail time is a real possibility in this case despite the fact that this is a first offender. Frankly, I do not see any real need for incarceration in this type of case and many judges would be likely tempted to grant “downward departures” in sentencing or disregard any recommended prison sentence.
It is also important to note that, after the Supreme Court’s ruling in United States v. Booker, sentencing guidelines are discretionary. Judge Maryellen Noreika could sentence him to probation in light of his struggle with his addiction and his status as a first offender (as well as the absence of other aggravating factors).
Yet, while many view this as a relatively minor offense, the sentencing guidelines do not.
Judges regularly sentence people to prison for these offenses. The sentencing guidelines put the recommendation at 15 to 21 months in prison. Moreover, over 90 percent of those convicted are sentenced to prison time.
The chances of probation are increased with guilty pleas, which generally allow for a downward departure of two levels for taking responsibility. That may not seem like a lot, but it could prove determinative for a judge on a marginal call over the need for incarceration. By pursuing the nullification strategy, Hunter lost that benefit and now would have to belatedly accept responsibility just before sentencing after putting the court and public through a trial.
If the defense reviewed Judge Noreika’s past cases, they would have seen that she takes a tough approach on gun cases. In May, she sentenced defendant Zhi Dong to a year in jail for lying about his address on a gun form. Notably, that was twice the recommended sentence of the prosecutors.
One point of distinction is that Dong purchased 19 pistols and 10 “lower receivers” rather than the single gun purchased by Biden. It is also notable that the prosecutors were only seeking six months of incarceration in that arguably more serious case.
The defense strategy also makes it more difficult for Special Counsel David Weiss, who has shown remarkable lenience at critical stages of his investigation. It was Weiss who allowed the most serious tax offenses to lapse under a statute of limitations (despite reportedly having an agreement to extend the period). It was Weiss who sought to give Hunter an obscene sweetheart deal that would have avoided any jail time and given him immunity for all crimes.
Many remain skeptical of Weiss and his actions in this case. For that reason, the failure to plead guilty puts Weiss in a box. Given the sentencing guidelines of prison time, any recommendations for probation would be read as more favoritism for the president’s son. Weiss may feel compelled to follow the recommendations to show that Hunter is being treated the same as other defendants.
Given the calculation for the three felonies, the defense had to know that they were increasing the chances of prison time by pursuing a nullification defense. The hope was that Wilmington is Bidentown and no local jury would convict the son of the favorite son of Delaware.
It didn’t work out that way. The team seemed to overplay its hand with defenses that were so implausible as to be insulting for the jury. They suggested that Hunter might not have checked the box or signed the form during a brief window where he was not using drugs. The prosecutors demolished those defenses within two days of the trial.
Accepting responsibility after a trial does not guarantee a downward departure. For example, in U.S. v. Womack, a defendant sought a departure for accepting responsibility before trial as a drug dealer. However, he still went to trial on other issues and the trial judge refused any departure on the basis of his earlier admissions of guilt. It found that he was still minimizing his responsibility for the underlying crimes. That decision was upheld on appeal.
Now, Hunter may have painted both the prosecutors and the court into a corner. In a play for a hung jury, Hunter may have hoisted himself on his own petard. Guilt was never in doubt, but his efforts also removed any question of accepting responsibility before he was facing actual sentencing for his offenses.
The book has been 30 years in the making. The book explores our struggle with free speech and why we continue to grapple with the meaning of this core, defining right. It does so in part through the stories of courageous figures who refused to yield to the demands of others to be silent, even at the risk of their own lives. The book seeks to reexamine the essence of this right and how, after a brief moment of clarity at our founding, we abandoned its true foundation as a natural or autonomous right. Many agree with Justice Louis Brandeis that free speech is indispensable but not why it is indispensable. That lack of proper foundation has left the right vulnerable to continual tradeoffs and contractions, particularly in what is now arguably the most dangerous anti-free speech period in our history.
Here is an excerpt from the book for those interested in obtaining a copy:
Free speech is a human right. It is the free expression of thought that is the essence of being human. As will be discussed in chapter 2, free speech is often justified in functionalist terms; it is protected because it is necessary for a democratic process and the protection of other rights. That is certainly true. Brandeis’s view of the right’s indispensability was due to the fact that most rights are realized through acts of expression, from the free press to association to religious exercise. However, it is more than the sum of its practical benefits. It is the natural condition of humans to speak. It is compelled silence or agreement that is unnatural. That is why it takes coercion or threats to compel silence from others.
We rarely teach the philosophy of free speech to young students. They largely learn a rote understanding of the First Amendment and a functionalist explanation on how the free speech right protects other rights. If students even receive civics lessons, there is little time or inclination to teach the relationship of speech to the essential qualities of being human. Natural and autonomous theories tie free speech to a preexistent or immutable status. As such, it is not the creation of the Constitution, but rather embodied in that document. There remains considerable debate over how natural rights theory motivated the Framers. What is clear is that these men were moved in the eighteenth century to create something that was a radical departure from what came before it.
As historian Leonard Levy observed, “liberty of expression barely existed in principle and practice in the American colonies,” let alone other nations around the world. What possessed James Madison to draft the First Amendment in absolutist terms was likely a mix of the experiential and the philosophical. The Framers had experienced the denial of free speech at the hands of the Crown, but it would have been an easy matter to expressly protect political speech. Rather than replicate what came before, the Framers spoke of protecting all speech from abridgment from the government. These were men who often spoke of the “unalienable” rights of humans in defining the role of the government. A transcendent right to free speech was consistent with the concepts of natural rights that emerged from the Enlightenment.
One of the most influential philosophers for the Framers (and a host of later philosophers like Voltaire) was John Locke. In 1689, Locke published his masterpiece, Two Treatises of Government, on the foundation for civil society and government. He described a “state of nature” and how God created the Earth with all that creation left in common for the use of mankind. Locke then presented his “labor theory” of property as a natural right that flowed from this divine gift. According to Locke, people have a right to property by removing something found in nature and mixing it with their labor. Through his labor, man becomes a creator by “join[ing] it to something that is his own.” In other words, God gave Man the ability to create and claim the creations “mixed with his labor” as his own. What was left in common for the use of all was converted into private property through individual enterprise. Yet Locke added a “proviso” that you must still leave “enough and as good” for others. Many writers have explored both the labor theory and the proviso in defining the right to property, particularly against efforts of government to distribute wealth. It also raises a question of why God would leave everything in common and then allow Man to “make it his own property.” The reason, I suggest, is that humans are themselves creators with a common need to express themselves in the world around them. Putting aside the desire to procreate as itself an act of creation, the desire to create objects or expressions is irresistible for most people, from the simple act of doodling to the construction of the Great Wall of China. It is seen from the drawings in the cave of Lascaux from 17,000 BCE to the graffiti on walls in New York City in the twenty-first century. Creation is the expression of ourselves, the projection into the world of our values and visions.
Consider the center of Michelangelo’s magnificent Sistine Chapel. People have debated for centuries of what the image of God touching Man was meant to depict. For many, the image is taken as giving life or an element of divinity. However, what is the divinity passed to Man? Perhaps that touch is not the act of creation but the power of creation. After all, the scriptures maintain that Man is both the creation of God but also made in the image of God. What is divine is the ability to change the world around us, to create. When Renaissance painter and writer Giorgio Vasari described Michelangelo, he used “the divine Michelangelo” to capture the provenance of his creations. The very terms create, and creation are semantically and conceptually tied to the ultimate “Creator.” To again bring in Locke, it is to use what is left in common to express ourselves in unique ways. Just as Man was created from clay, God left us clay to form our own creations from the state of nature.
To be human is to create, and these creations are a form of speech. Under this view, whether it is a column or a cake or a cathedral, creation is a quintessentially human act. Without such expression, we are human in form alone; realized clay, but clay alone, from the original act of creation.
What makes us human is obviously a subject heavily infused with subjectivity and religiosity. How one views the essential elements of humanity depends on how one views the potential and position of humans. Like other animals, we procreate; we experience pain and pleasure. We share chemical, muscular, and emotive impulses with other animals. There is even some evidence that other species have sentience. New studies indicate that other animals have an awareness of their existence and cognitive abilities long assumed to be uniquely human. We share 98.7 percent of our genetic sequencing with great apes like chimpanzees and bonobos. Does that make us more conversant, less hairy apes? We also share 80 percent with a cow, and 61 percent with a fruit fly. There is even a 60 percent overlap with a banana. The effort to distinguish a human from a banana is easy with comparisons from color to complexity. However, it is easier to explain why we are not a banana than it is to explain what makes us human beings.
Humans are more than talking bananas, despite our shared genetic sequencing. Whether that is due to the “divine touch” captured in the Sistine Chapel or some other element will continue to occupy philosophers and theologians for centuries to come. Yet understanding the essence of humanity is not entirely a debate over metaphysical points. There are some physical elements that distinguish humans in how we interact with the world around us. In her book The Creative Brain, neuroscientist Nancy Andreasen notes that the human brain is wired to all nonlinear thought and “when the brain/mind thinks in a free and unencumbered fashion, it uses its most human and complex parts.”
Neurological studies suggest that the human brain is hardwired for expression. The evolution of innovative capabilities offered a survival advantage, including the ability to communicate and motivate through pictures and words. These include “basic biological needs in animals such as live-or-die (dire necessity), physical energy conservation, and survival through deception.” This may have been responsible for creating the drive for innovation and expression in humans: “Given adaptive evolutionary processes, it is reasonable to assume that all of these have become interwoven into the underlying brain mechanisms of creativity in humans.”
The frontal lobe was the last part of the human brain to evolve and addresses the complex cognitive functions that are closely associated with being human. The oldest part of the brain is often called the reptilian brain containing the brain stem and the cerebellum. Much as in other animals, it controls our bodily functions, from heart rate to balance. The limbic brain added key components for creative thought and high cognitive functioning. Containing the hippocampus, the amygdala, and the hypothalamus, the limbic brain gives us our powerful emotions and memories. Scientists have long identified the neocortex, including the frontal lobe, as affording humans higher capacities for language, imagination, and abstract thought. Neuroscientists believe that “subcortical brain circuits” evolved late in the development of “the forebrain bundle” and are the key to our curiosity and creativity.
Our early understanding of these physiological differences often came from intentional or accidental denials of stimulus or speech. It also came from the loss of the function of brain areas. Much of this early knowledge came from tragic stories like that of Phineas Gage and his tamping iron.
In September 1848, Gage, twenty-five, was working as a railroad foreman in Cavendish, Vermont. His crew was removing rock to lay track and, as the foreman, it fell to Gage to set the charge. A hole was drilled, and explosives stuffed into the bottom. The next step was to pack sand over the TNT using a tamping iron. The iron was 43 inches long, 1.25 inches in diameter, and weighed 13.25 pounds. Gage shoved it down the hole but accidentally sparked the explosive. It was a nearly lethal mistake. Gage had built an effective cannon out of rock and was staring directly down the barrel. The rod shot straight out of the hole and entered Gage’s left cheek and passed through the top of his skull. Brain matter and blood covered Gage as he was blown a fair distance from the hole. The crew was horrified.
They assumed Gage was dead and were shocked when he regained consciousness and walked to a nearby oxcart to be taken to a doctor. In the cart, Gage was seen writing in his workbook, and he could recognize figures like Dr. John Martyn Harlow, who came to treat him. Despite Gage’s extraordinary demeanor, Harlow expected his patient to die. That prognosis was understandable given the massive wound and the bleeding, which continued for two days. Gage then developed an infection that left him semiconscious for a month. His friends prepared a coffin for him. However, Gage did not die. The rod had blown away part of his brain’s frontal lobe. Harlow recognized that this was a unique opportunity to better understand the function of that body part by observing changes after its removal. It was clearly not necessary for life, but it was necessary to being fully human. Even on the evening of the accident, Gage was conversant and could remember names and other details.
After a month, Gage was able to travel to New Hampshire to continue his convalescence at his parents’ home. Yet, more than just the loss of sight in one eye, Gage was an altogether changed man. He was more aggressive and had problems maintaining relationships. He became abusive and a heavy drinker. He had a hard time holding down a job. Despite being described as a model foreman, the mining company did not want him back. Gage would take various jobs including driving coaches in Chile and would even travel with his rod as a human curiosity with American showman P. T. Barnum. He would eventually die from what was described as epileptic seizures in 1860 at the age of thirty-six.
Some changes in Gage’s personality were clearly related to the trauma of having a metal rod blown through his head. Moreover, some of the changes in Gage dissipated over time. Yet there remained lasting changes. His friends stated that his personality was different, and some described him as more impulsive, socially inappropriate, and as possessing what were described as “animal propensities.” In his study, Dr. Harlow recounted how Gage’s supervisors:
regarded him as the most efficient and capable foreman . . . considered the change in his mind so marked that they could not give him his place again. . . . He is fitful, irreverent, indulging at times in the grossest profanity (which was not previously his custom), manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires. . . . A child in his intellectual capacity and manifestations, he has the animal passions of a strong man. . . .His mind was radically changed, so decidedly that his friends and acquaintances said he was “no longer Gage.”
Some of these changes have been tied to the loss of parts of the brain connected to emotional processing. The tamping iron is now believed to have destroyed roughly 11 percent of the white matter in Gage’s frontal lobe and 4 percent of his cerebral cortex. Later studies showed evidence of damage to the left and right prefrontal cortices. Studies of traumatic brain injury (TBI) show how creativity can be lost with these areas of the brain. Gage’s wound not only removed part of the frontal lobe but caused traumatic injury to much of what remained after the rod was blown through his head.
Whether by divine creation or evolutionary change, humans are creative beings. The loss of parts of the brain has been shown to have profound impacts. Even in monkeys, the removal of prefrontal lobes produced changes in personality. However, for humans, the loss of areas of the limbic and neocortex can limit those functions allowing for creative expression—the very areas that distinguish humans from other primates. Neuroscience studies have found that the “inordinate capacity for creativity [in humans] reflects the unique neurological organization of the human brain.” It was not just that Gage was viewed as having “animal propensities,” he lacked human characteristics. Creative thinking requires the ability to project images; to apply concepts to new forms of application or expression. It necessitates “fundamental cognitive processes such as working memory, attention, planning, cognitive flexibility, mentalizing, and abstract thinking.” These are functions contained in prefrontal areas of the brain. What Gage lost may have been not just part of his brain but part of his essential humanity. Without the ability to be creative and to express himself, the explosion was de-evolutionary, arguably returning Gage to an earlier state of primate. He was still physiologically human but lacked the full capacity for human expression.
That returns us to Michelangelo’s touch. Some have noted the framing over the image of God is in the shape of the human brain. God’s image appears over what can be interpreted as the limbic system, and his right arm extends to the prefrontal cortex, the areas that most distinguish human beings from other primates. Michelangelo was an anatomist who began dissecting corpses at age seventeen. In a 1990 paper published in the Journal of the American Medical Association, Dr. Frank Meshberger showed how the depiction in The Creation of Adam in the central panel appeared to be an anatomical cross section of the human brain. The anatomical overlay raises the question of what Michelangelo was trying to convey beyond a humanistic element. For example, by literally embedding the Almighty in the human brain, it could be viewed as bestowing the divine gift of creation and transcendent thought.
To be denied the gift of creation is to leave humans in a state far from divine. The Gage story allowed science to judge what happened to creativity and other human characteristics when an actual part of the human body was removed. The loss of certain environmental elements can produce similar effects on humans. As a lawyer that began his career working with prisoners, I have long observed the rapid decline of clients in segregation where inmates are cut off from most human contact or avenues for expression for prolonged periods of time. The impact of such isolation is often immediate and pronounced. Human beings are inherently social animals and require forms of expression or avenues of interaction. In one study of segregation, researchers found dramatically heightened levels of depression, anxiety, hallucinations, and other forms of mental illness. One common complaint is “a perceived loss of identity.” It is a profound by-product of being deprived the interaction with others that we can lose our sense of ourselves, or self-identity. In a curious way, we need others to be ourselves.
Clearly, various elements are in play in segregated conditions that include sensory deprivation, monotonous routine, and strict confinement. However, studies show a need for inmates to be able to break from monotony and have exposure and interaction with different expressive elements. This is not simply psychological but physiological. One recent study looked at the impact of isolation of Antarctic expeditioners. These individuals could speak with each other and work on tasks associated with their expedition, including journals. But the range of intellectual stimulation and expression was sharply limited by the monotonous and confined conditions. Research found evidence of a shrinking hippocampus in the subjects. The seahorse-shaped region embedded in the temporal lobe of the brain is key to memory and creativity. In his work on creativity in the human brain, Dr. Roger Beaty noted that “memory, imagination, and creative thinking all activated the bilateral hippocampus.” The studies on isolation suggest that humans forced into limiting or monotonous existences can experience actual physical losses affecting the capacity for creativity. They can lose their full potential for the range of human creative thought.
Isolation studies do not prove human nature or its essential elements. Yet the question remains: What is uniquely human? There exists a driving desire in humans to create, to express, to invent, and to build. While bees and termites can create intricate structures, humans constantly break from the status quo and seek new forms and concepts. It is not merely an effort to survive. Indeed, the iconic image of the starving artist attests to how this creative drive can be the denial of every other aspect of life. It is an irresistible, even involuntary impulse. Mozart, when once asked about his music composition, admitted “whence and how they come. I know not; nor can I force them.” Nor can many deny them, from artistic to political expression—even at one’s peril. As Dr. Andreasen noted, “[A]t the neural level associations begin to form where they did not previously exist, and some of these associations are perilously novel.”
It is a drive that everyone exhibits in ways that can be grand or gross. Even neighbors who spend weeks creating elaborate Halloween or holiday displays seem to be fulfilling a deeper human impulse. As evidenced by the neurological studies, we are constructed for creative thought, for remembering and imagining, and for projecting thoughts into the future to create new realities. That process involves expression in myriad forms. It is an impulse that is irresistible for many. It is also an impulse that can threaten the status quo, which is why the earlier forms of government sought to control the expression of divergent thoughts.
Below is my column in the New York Post on the closing arguments scheduled for today in the trial of former President Donald Trump. The column explores the key elements for a closing to bring clarity to the chaos of Judge Juan Merchan’s courtroom.
Here is the column:
With the closing arguments set for Tuesday in the trial of former president Donald Trump, defense counsel is in a rather curious position. There is still debate among legal experts as to the specific crime that District Attorney Alvin Bragg is alleging.
Trump’s lawyers are defending a former president who is charged under a state misdemeanor which died years ago under the statute of limitations. It was then zapped back into life in the form of roughly three dozen felonies by claiming that bookkeeping violations — allegedly hiding payments to Stormy Daniels to ensure her silence about a supposed affair with Trump — were committed to hide another crime. But what is that second crime? Even liberal legal analysts admitted that they could not figure out what was being alleged in Bragg’s indictment. Now, after weeks of trial, the situation has changed little.
Originally, Bragg referenced four possible crimes, though he is now claiming three: a tax violation or either a state or federal campaign financing violation. The last crime is particularly controversial because Bragg has no authority to enforce federal law and the Justice Department declined any criminal charge. The Federal Election Commission (FEC) did not even find grounds for a civil fine.
Judge Merchan has ruled that the jury does not have to agree on what that crime is. The jury could split into three groups of four on which of the three crimes were being concealed and Merchan will still treat it as a unanimous verdict.
The jury has been given little substantive information on these crimes, and Merchan has denied a legal expert who could have shown that there was no federal election violation.
This case should have been dismissed for lack of evidence or a cognizable crime. The jury will be reminded that the burden is on the government, not the defense. However, the presumption of innocence is often hard to discern in criminal cases. Most jurors believe that clients are sitting behind the defense table for a reason. That is why many prosecution offices have conviction rates in the 80%-90% range. That presumption is even more difficult to discern when the defendant is named Trump, and the jury sits in Manhattan.
Three-legged Stool
A classic closing pitch by lawyers is to use a physical object like a three-legged stool. If any leg is missing, the stool collapses.
In this case, the government needs to show that there was a falsification of business records, that the records were falsified to conceal another crime and that Donald Trump had the specific intent to use such “unlawful means” to influence the election.
Even a cursory review of the evidence shows this case does not have a leg to stand on.
The First Leg: Falsification of Records
The dead misdemeanor that is the foundation for this entire prosecution requires the falsification of business records. It is not clear that there was such falsification or that Trump has any knowledge or role in any falsification.
Witnesses testified that Trump would sign checks prepared by others and that the specific checks in this case were signed while Trump was serving as president. Some of these checks, labeled “legal expenses,” were allegedly for attorney Michael Cohen to pay off Stormy Daniels.
Most importantly, Jeffrey McConney, the Trump Organization’s retired controller and senior vice-president, testified that it was not Trump who designated these payments as “legal expenses.” Rather, the corporation used an “antiquated” drop-down menu where any payments to lawyers were designated “legal expenses.” There is a plausible reason why payments to an attorney were listed as legal expenses.
The government also cites the designation of payments to Cohen as part of his “retainer,” which included reimbursement for the payment of the Daniels non-disclosure agreement. However, that designation was the result of discussions between Cohen and former Trump Organization CFO Allen Weisselberg, who is sitting in a jail cell in New York City. The government could have called Weisselberg, but did not.
The government has made a big deal over the fact that retainer agreements are supposed to have written contracts. However, that was the failure of Cohen, who was later disbarred as an attorney.
For a businessman like Weisselberg, monthly payments to an attorney could have seemed perfectly logical. Once again, there was no evidence that Trump knew of how the payments were denoted.
The Second Leg: The Secondary Crime
The government must also show that any falsification was done to further or conceal another crime. This is where the defense needs to bring greater clarity to its own narrative. Trump’s team needs to drive home that a non-disclosure agreement is common in political, business and entertainment circles. The payment of money to quash a story before an election is neither unlawful nor unusual.
Indeed, Keith Davidson, Stormy Daniels’ attorney, described the NDA as routine and said that it was not hush money but a simple contractual transaction: “It wasn’t a payoff. It wasn’t hush money. It was consideration.”
This is where the testimony of David Pecker, the former publisher of the National Inquirer, was particularly damaging to the government.
Pecker detailed how killing such stories was a common practice at the National Inquirer and that he had done so for Trump for over a decade before he ran for president. He also killed stories for an impressive list of other celebrities, including Tiger Woods, Mark Wahlberg, Rahm Emanuel and Arnold Schwarzenegger.
Merchan has allowed the jury to repeatedly hear of “election violations,” while blocking a legal expert to explain that there is no federal election law violation. The payment of hush money is not a campaign contribution and, again, the federal government not only declined to bring any criminal charge but found no basis for even a civil fine.
Had he been allowed to testify, Bradley Smith, the former Federal Election Commission (FEC) chairman, would have explained that, even if it were a campaign contribution, it would not have been needed to be filed until after the election — demolishing the notion that this was an effort to influence an election that would have run before any filing had to be made.
The defense has to hammer away on the fact that no one has testified that it was a federal campaign violation.
Various witnesses, including former Trump aide Hope Hicks, testified that Trump was motivated to protect his family from embarrassment. She recounted how Trump even “wanted me to make sure the newspapers weren’t delivered to their residence that morning.”
Pecker testified that he previously killed stories about Trump going back over a decade. That included stories that were demonstrably untrue, such as a claim of a doorman that he fathered a child out of wedlock.
In addition to being a married man, Trump was the host of a major television program subject to a scandal clause. He was also an international businessman. Given all of those interests, it is impossible to claim absolutely that the campaign was the reason for the NDA, which was chump change for a billionaire.
The Third Leg: Criminal intent
The government spent considerable time proving facts not in dispute. There is no dispute that there was a NDA or that Trump signed checks on these payments. It is like repeatedly telling a court that a driver drove 55 miles an hour down a highway and elected to change lanes with a signal. The intent is to convince the jury that somehow proving that an NDA was paid and that an affair occurred is proof of an offense. It is not.
The supervisor in charge of processing payments said that permission to cut Cohen’s checks came not from Trump, but from Weisselberg and McConney. Trump’s White House secretary, Madeleine Westerhout, testified that it was common for Trump to sign checks in the White House without reviewing them.
The entire basis for the alleged criminal intent is Michael Cohen, a disbarred lawyer and serial perjurer. Yet even Cohen did not offer a clear basis for showing a criminal intent to use unlawful means to influence the election. Everything Cohen described could be true and only show a desire to kill an embarrassing story before an election — again, not a crime.
Cohen described the mechanics on the payments, but the only person who discussed these payments in detail with Cohen was Weisselberg.
Even liberal experts on CNN admitted that Cohen was trashed on the stand. The only crime that was clearly established in this trial was the grand larceny that Cohen admitted to under oath (after the statute of limitations had run out). Cohen said that he stole tens of thousands from the Trump corporation, a crime far more serious than the dead misdemeanor or even the felonies alleged against Trump.
However, the most significant testimony by Cohen may be his latest alleged perjury in front of the jury.
Many of us guffawed when Cohen claimed that he secretly taped Trump to protect him and keep Pecker honest. No one can explain how that could possibly be true. If it were, he would have told Trump. There is nothing in the call that would have any impact on Pecker, and Cohen admitted to regularly taping others without telling them.
Another alleged perjury came with the key telephone call in which Cohen claimed Trump was informed that the Daniels deal was concluded. The defense showed that that 96-second-long call was to Trump’s bodyguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that clearly shows that the conversation was about a teenager harassing Cohen, not the NDA.
Other witnesses trashed Cohen as unprofessional, prone to exaggeration, bitter against Trump, at times suicidal over being denied positions like attorney general and simply “a jerk.” Hope Hicks, a former aide to Trump, said that Cohen “used to like to call himself Mister Fix It, but it was only because he first broke it.”
Those were the government’s witnesses.
Cohen’s lack of credibility and his admitted financial interest in attacking Trump only highlight again the absence of Weisselberg, whom Cohen references repeatedly as the key person making decisions on how these payments were made and described.
If what Cohen said was true, corroboration was sitting a car ride away in Rikers Island. Traffic may be bad but it is not that bad. The only reason not to call Weisselberg was that he would contradict Cohen.
The prosecution preferred to use a serial perjurer who roughly half of the country views as dishonest as almost the entirety of their case. Even beyond Weisselberg, there is no corroboration for Cohen’s vague allegations on the record.
In the end, this three-legged stool is the very thing that all of us must stand on when accused. Who on the jury would want to stand on this stool with their own liberty at stake?
In the end, the defense needs to be honest with these jurors. The question is whether hatred for this man is enough to ignore the obvious injustice in this case. They may have come to this case with little doubt about Donald Trump, but the question is whether there is not any reasonable doubt about the crimes alleged against him.
In the end, we are all standing on that wobbly stool when the government seeks to convict people without evidence or even a clear crime. If we allow a conviction, it is more than a stool that will collapse in this Manhattan courtroom.
Jonathan Turley is an attorney and professor at George Washington University Law School.
Today I will have the pleasure of participating in a debate titled Civil Disagreements: Presidential Self Pardons. I will be debating Professor Brian Kalt, who believes that the presidents do not have the authority to pardon themselves. I will be taking the opposing position. The debate will be held entirely online. The debate is sponsored by Reform for Illinois, the American Bar Association, the Chicago Chapter of the American Constitution Society, and the Chicago Lawyers Chapter of the Federalist Society
I have long maintained that presidents do have the authority to grant self-pardons. That does not mean that I approve of the practice as a policy matter, but the question, in my view, rests with a president in using the authority granted under Article II, Section 2, of the Constitution, which defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
I value the effort of these two legal groups to foster civil and substantive dialogue on these questions and look forward to the debate with Professor Kalt.
The debate will begin at 1pm (ET) and participants can register here.
We are now exactly one month from the release of my new book, The Indispensable Right: Free Speech in an Age of Rage. I am happy to share the reviews from writers, academics, journalists, and civil libertarians of the book, which is available for pre-order here. Those ordering now will have the first prints shipped to them on June 18th.
I am deeply grateful to these early reviewers for their generous comments about the book. It is meant to offer a comprehensive look at the meaning, history, and current threats to free speech in America. While it may displease or discomfort others in these fields, it is offered as a foundation for restoring this truly indispensable right.
Reviews of the Turley book:
“Jonathan Turley’s magnum opus should be required reading for everyone who cares about free speech—certainly including anyone who questions or criticizes strong free speech protection. This a unique synthesis of the historical, philosophical, artistic, and even physiological bases for protecting free speech as a right to which all human beings are inherently entitled, and Turley provides riveting accounts of the courageous individuals, throughout history, who have struggled and sacrificed in order to exercise and defend the right. The Indispensable Right is an indispensable book.” —Nadine Strossen, former president of the American Civil Liberties Union
“Brilliant and intellectually honest, Jonathan Turley has few peers as a legal scholar today. With The Indispensable Right, he has given us a robust reexamination and defense of free speech as a right. Rich with historical content and insight, this superbly-written book calls out both the left and the right for attacks on free speech while offering in the final chapter a path forward.” —William P. Barr, former Attorney General and author of the No. 1 New York Times bestseller One Damn Thing After Another.
“This efficient volume is packed with indispensable information delivered with proper passion. Jonathan Turley surveys the fraught history of “the indispensable right” and today’s dismayingly broad retreat from its defense. He is especially illuminating on how the concept of “harm” from speech has been broadened to serve the interest of censors.” —George F. Will, Pulitzer Prize winner and Washington Post columnist.
“The First Amendment has consumed Jonathan Turley for more than thirty years. Lucky for us that he waited until now, amidst a climate of unprecedented rage rhetoric, to deliver a master class on the unvarnished history of free speech in America. The Indispensable Right is enlightening and engaging. It is also a cautionary tale against state overcorrection of the often acrimonious, free exchange of ideas that are an essential part of the human experience.” —Michael Smerconish, host of CNN’s “Smerconish”
“During these often-bitter times, Jonathan Turley is my “go-to” commentator for smart, clear and honest analysis on any difficult legal controversy.” —Jim Webb, former Democratic U.S. Senator, Secretary of the Navy, and bestselling author
“Jonathan Turley’s book is the rarest of accomplishments: a timely and brilliantly original yet disciplined and historically grounded treatment of free speech. He dispels the view that our current social turmoil is ‘uncharted waters’—from the 1790’s Whiskey Rebels to the 1920’s Wobblies to the 1950’s communists, we’ve been here before—and argues persuasively that free speech is a human need and that we must resist the urge to restrict speech as ‘disinformation’ or ‘seditious’ or offensive to ‘woke’ sensibilities.” —Michael B. Mukasey, former Attorney General and U.S. District Judge
“Jonathan Turley is one of the most astute and most honest analysts of the intersection of politics and law. Thirty years in the making, this book brilliantly proposes means for preserving the most important Constitutional right: the right to free speech. Elegantly written, exhaustively researched, and passionately argued, Turley has given us a superb and necessary tract for our time.” —Stephen B. Presser, Raoul Berger Professor of Legal History Emeritus, Northwestern University School of Law
“Jonathan Turley recognizes free speech as an essential good—an activity that is central to our very nature as human beings. This is in sharp contrast with those who defend free speech as merely instrumental to some other value, like democracy or the pursuit of truth; rationales that are then used to justify limiting speech in ways that obstruct human flourishing. In this important book, he explains why free speech has historically come under threat during periods of rage and proposes policies that will protect freedom of speech from those who would today destroy this indispensable right.” —Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
“The Indispensable Right is a courageous, provocative case by one of America’s most prolific public intellectuals for resurrecting natural law or embracing an autonomous basis for the protection of free speech. Not all First Amendment defenders will be persuaded––but one needn’t sign on to Turley’s robust view of free speech to appreciate the unique clarity and deep historical research he brings to his argument. Read this insightful book to understand the peril of today’s broad-based assault on free speech.”
—Michael J. Glennon, Professor of Constitutional and International Law, Tufts University, author of Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era.
“Extraordinary and needed.”
—Keith E. Whittington, William Nelson Cromwell professor of politics at Princeton University
A vigorous defense of free speech, a right enshrined but often hobbled or outright abrogated. A smart book that invites argument—civil argument, that is, with good faith and tolerance.
Below is a slightly expanded version of my column in the New York Post on the first day of cross examination for Michael Cohen. He still has one day of cross examination ahead of him on Thursday. With the government resting after Cohen’s cross examination, I believe that an honest judge would have no alternative but to grant a motion for a directed verdict and end the case before it goes to the jury. Judge Juan Merchan will now have to give the full measure of his commitment to the rule of law. Given the failure to support the elements of any crime or even to establish the falsity of recording payments as legal expenses, this trial seemed to stumble through the motions of a trial. Michael Cohen was only the final proof of a raw political exercise. For critics, some of Cohen’s answers appear clearly false or misleading. Like their star witness, the prosecutors have shown that they simply do not take the law very seriously when there is an advantage to be taken. Cohen has truly found a home with the office of Manhattan District Attorney Alvin Bragg.
Here is the column:
On Tuesday, the prosecution surprised many by suddenly announcing that it would rest its case against former president Donald Trump with the completion of testimony by Michael Cohen. It was surprising because the prosecution never clearly stated the crime that it was proving, the elements of that crime, or even why denoting payments related to Stormy Daniels were not properly recorded as legal expenses. Indeed, the only thing the prosecutors proved was that, in the pantheon of dishonesty, there are liars, pathological liars . . . and Michael Cohen.
Cohen spent the last two days insisting that he used to be a liar but lied to help former President Donald Trump. If that is the thrust of his testimony, it is just the latest lie told by Cohen under oath. Cohen has lied to Congress, courts, special counsels, the IRS, the banks, and virtually every creature that walks or crawls on the face of the Earth. Notably, his past conviction for business and tax fraud were not taken in the interests of Trump but himself.
When he admitted on the stand that he lied during his prior plea agreement, that was not to assist Trump who he had already denounced. It was to advance his own interests. There is every indication that Cohen is still lying.
Cohen repeatedly said that he could not remember even recent calls after recounting calls from eight years ago with crystal clarity. He said that he could not remember key exchanges and statements. However, these paled in comparison to other glaring moments. Take, for example, his testimony on his unethical decision to secretly record a Sept. 6, 2016 telephone call with Trump. It was a breathtaking betrayal that most lawyers would not contemplate, let alone carry out.
When asked by the prosecutors about that act, Cohen bizarrely claimed that he did so to guarantee that David Pecker, the former publisher of the National Enquirer, would “remain loyal to Mr. Trump.”
No one seriously believes that this is true. It does not even make sense. Pecker was speaking to Trump about the payments and even met with him at the White House. Playing for him a call with Trump would produce nothing but confusion rather than pressure for Pecker. Moreover, why would Cohen tape the call without letting Trump know? The obvious motive was to squirrel away material to use against Trump if he ever needed a little leverage.
Again, it was for Cohen.
Cohen’s testimony showed that he has consistently acted in his sole interest. After portraying his sudden cooperation with prosecutors as a type of Road to Damascus, jurors learned that all roads lead back to Cohen and his bank accounts. After telling the jury that he has dedicated his life to righting the wrongs of Trump and holding him accountable, he admitted that he repeatedly acted to undermine the prosecution in order to make a buck.
Told by prosecutors to stop doing public interviews, Cohen did not care. He did roughly two dozen television appearances and recorded hundreds of podcast episodes. He admitted that Trump is mentioned in virtually every episode, of which he did roughly four a week. He recounted how he raked in millions on books, including one titled “Revenge.” He admitted that he is selling items like a $32 shirt with a photo of Trump in a jumpsuit behind bars and a coffee mug with the phrase “send him to the big house, not the White House.” He is also peddling a reality show called “The Fixer,” in which he promises viewers, “I am your fixer.”
After just a few hours of cross examination, it was clear that Cohen is the same grifter saving himself — one Venmo at a time. Yet, Cohen continued to reframe reality in his own self-constructed image.
When asked about his TikTok antics, he portrayed his postings as a type of sleep deprivation therapy, explaining that “having a difficult time sleeping and [he] found an out.”
No sane prosecutor would rely on Cohen, let alone make him the entirety of their case.
The prosecutors did not even bother to show that Trump was responsible for or knew about how the payments were recorded on ledgers and business records. They also just shrugged away the need to show why denoting these payments as “legal expenses” was fraudulent — or what the correct description might be. Those details might be demanded in any other courtroom, but this is New York and the defendant is Donald Trump.
For Bragg and his team, it is all about what they can get out of this case despite the law. In that sense, they found a kindred spirit in their star witness, and Michael Cohen has finally found a place that values what he calls on his reality show promo his “particular set of skills.”
Jonathan Turley is an attorney and professor at George Washington University Law School.
“I gave up shame years ago.” Those words from actor John Lithgow appear to have been taken to heart by Hillary Clinton who has severed any sense of self-awareness or shame in her public comments. Lithgow, who played Bill Clinton in Broadway production of Hillary and Clinton, appears to have inspired the subject of his play. In a recent interview, Hillary Clinton heralded the prosecution of former president Donald Trump in Manhattan as “election interference” by keeping “relevant information” from voters before an election. For those of us who criticized Clinton for the funding of the infamous Steele dossier, it was a perfectly otherworldly moment.
In the interview, Clinton went after the Supreme Court for delaying a trial of Trump despite the push by Special Counsel Jack Smith for a verdict before the election. She then left many in disbelief with the following statement:
“And the one going on now currently in New York is really about election interference. It is about trying to prevent the people of our country from having relevant information that may have influenced how they could have voted in 2016 or whether they would have voted.”
In the same election, it was Hillary Clinton’s campaign that lied about funding the Steele dossier and then hiding the funding as a legal expense through then Clinton General Counsel Marc Elias.
The Clinton campaign staff has never been known for transparency. Buried in the detailed account is a footnote stating that Elias “declined to be voluntarily interviewed by the Office.” Likewise, John Durham noted that “no one at Fusion GPS … would agree to voluntarily speak with the Office” while both the DNC and Clinton campaign invoked privileges to refuse to answer certain questions.
Elias, his former partner Michael Sussmann, and the campaign were later found involved in not just spreading the false claims from the Steele dossier but other false stories like the Alfa Bank conspiracy claim.
It was Elias who managed the legal budget for the campaign. We now know that the campaign hid the funding of the Steele dossier as a legal expense.
New York Times reporter Ken Vogel said that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
Elias was also seated next to John Podesta, Clinton’s campaign chairman, when he was asked about the role of the campaign, he denied categorically any contractual agreement with Fusion GPS. Even assuming that Podesta was kept in the dark, the Durham Report clearly shows that Elias knew and played an active role in pushing this effort.
Elias is now ironically advising Democratic campaigns on election ethics and running a group to “defend democracy.” He is still counsel to the Democratic Congressional Campaign Committee (DCCC) headed by Rep. Suzan Kay DelBene, D-Wash. Elias was later severed by the Democratic National Committee from further representation and has been previously sanctioned in federal court in other litigation.
Notably, the Federal Election Commission sanctioned the Clinton campaign for hiding the funding as a legal expense. The Clinton campaign litigated the issue and insisted that the term is broadly used to cover a wide array of payments through counsel. That is precisely what the Trump team is arguing in the Manhattan case.
Lying to the media and hiding the funding was a conscious effort to hide “relevant information that may have influenced” voters. With the help of the media, these false stories were spread throughout the country and later were used to start the Russian collusion investigation.
Famous philosopher and mathematician Blaise Pascal once declared that “the only shame is to have none.” Hillary has finally achieved that ignoble status. She appears now to have lost even the capacity for shame.
While pundits, politicians and the press have long expressed outrage over attacks on judges by former President Donald Trump, many are now attacking any judge who delays any trial of Trump before the election. Democrats have accused Judge Aileen Cannon of being politically compromised, if not conspiratorial, in her delay of the Florida trial over the mishandling of classified documents. Yet, there is ample reason for the delay that many of us anticipated in this type of case when it was filed.
For months, many of us have said that we doubt that this type of trial could be held on the rapid schedule demanded by Special Counsel Jake Smith. Smith has repeatedly sought to curtail trial review and even appellate rights of Trump to advance his schedule.
His office has made convicting Trump before the election the overriding objective of its motion — a sharp departure from past Justice Department efforts to avoid trials to influence elections.
As a criminal defense counsel, I have handled classified material cases, and they are notoriously slow. Smith could have prosecuted this case in the shorter time frame if he simply charged obstruction. That would have also eliminated the glaring contrast with the handling of the Biden investigation into the current president’s retention and mishandling of classified material.
Smith decided to charge an array of document charges related to classified material. The defense must have access, review, and can appeal issues related to the classified procedures. Yet, Smith wanted both the array of document charges and a fast track to trial. The Supreme Court has agreed with Cannon that Smith’s desire to secure a conviction before the election is not the overriding consideration.
Judge Cannon is faced with recent admissions that the government mixed up files in the boxes and staged the famous photos of documents strewn over a floor with classified jackets. Most importantly, disputes over the relevant documents continues as expected in the case. Nevertheless, leading democrats are denouncing Cannon as a partisan hack.
Sen. Sheldon Whitehouse (D-R.I.), the chair of the Senate Judiciary Committee’s subcommittee on federal courts and oversight, accused Cannon of “deliberately slow-walking the case.” Ignoring the fact that similar cases have taken much longer to go to trial, Whitehouse simply declared “it is hard for me not to reach the conclusion that this [judge] is deliberately slow-walking the case to put it into a position where should [Trump] be elected, he can order that the investigation and prosecution be terminated.”
His colleague Sen. Chris Coons (D-Del.) insisted that Cannon was “managing this case in a way that is making it highly unlikely that it will be resolved in a timely fashion.”
Coons added “Justice deferred is often justice denied.” It is a bizarre statement. Classified documents cases routinely take longer to go to trial. The alternative is to cut off the ability of the defense to fully review the documents and review objections for resolution before trial. Yet, because the defendant is Trump and these Democrats want the trial to influence the election, such defense protections are now evidence of judicial bias. They, of course, ignore that Cannon has ruled repeatedly against major Trump motions in the case.
Sen. Peter Welch (D-Vt.), a member of the Judiciary Committee, said Cannon’s “at it again, doing everything she can to delay.”
Sen. Richard Blumenthal (D-Conn.), offered the most telling line. He said, “I question whether this judge understands the magnitude or the legal import of this trial.”
Indeed, it is the timing as much as the charges that makes this so important to the Justice Department and the Democrats. Smith has crafted this case to impact the election and the failure of the court to support that effort is apparently grounds for recusal.
Blumenthal called for such a motion before the window is lost before the election: “It’s a classic dilemma for justice that a particular judicial officer may be conducting a trial that could be better done by somebody else.”
Despite the statement of his colleague Coons, this is a case where justice delayed is justice.
Below is my column in The Hill on the expected appearance of Michael Cohen in the Manhattan trial of former president Donald Trump. It will be a scene that is both mesmerizing and repellent for many, particularly in the bar.
Here is the column:
A disbarred, serial perjurer walks into a courtroom and asks to take an oath . . . No, seriously, this is not a joke. Michael Cohen will soon appear in a Manhattan courtroom in what is sure to be one of the most bizarre moments in legal history.
Cohen nearly comprises the prosecution’s entire case against former President Donald Trump under a criminal theory that still has many of us baffled. It is not clear what crime Trump was supposedly trying to conceal by making “hush-money” payments to former porn actress Stormy Daniels. What is clear is that none of the witnesses called in recent weeks has had any direct involvement with Trump on the payments. The witnesses had a lot to say about Cohen, and most of it was not good. They described an unprofessional, self-proclaimed “fix-it man” who created a shell corporation to buy out Daniels with his own money. The money was later paid back by Trump after the election, with other legal expenses.
So, Cohen will now make the pitch to the jury that they should put his former client in jail for following his own legal advice. This would be difficult even for a competent and ethical lawyer. For Cohen, it is utter insanity. But Bragg is betting on a New York jury looking no further than the identity of the defendant to convict.
Cohen has an impressive history of lies and exaggerations that may be unparalleled. Just weeks ago, another judge denounced him as a serial perjurer who was still gaming the system. This is not the defendant, mind you, but Alvin Bragg’s star witness.
When a journalist pursued a story Cohen did not like, he told the reporter that he should “tread very f—ing lightly because what I’m going to do to you is going to be f—ing disgusting. Do you understand me?”
It is not hard to “understand” Cohen. He has long marketed his curious skill of voluntarily saying whatever the highest bidder wants him to say. He is a convicted perjurer who seems to lie even when the truth would do. Each time he is caught lying, he claims to be the sinner who has finally seen the light, seeking redemption.
When he was called before the House to testify against Trump soon after his plea agreement with the Justice Department (for lying), Cohen was again accused of perjury. House Oversight Chairman Elijah Cummings (D-Md.), warned Cohen repeatedly that he had better tell the truth this time. Cohen then testified that Trump wanted him to work in his administration and offered him multiple jobs, which he turned down. He also claimed, “I have never asked for, nor would I accept, a pardon from President Trump.” Multiple sources have said that Cohen’s lawyer pressed the White House for a pardon, and that Cohen unsuccessfully sought a presidential pardon after FBI raids on his office and residences last year.
Even after being stripped of his law license and sentenced to three years in prison, Cohen continued the pattern. In 2019, Cohen failed to appear to testify before the Senate Intelligence Committee, citing an inability to travel due to surgery. He was then seen partying before the hearing date with five friends.
Even while in jail, Cohen was accused of lying to a court, in violation of an order for early release due to medical problems. He was ordered back into custody after being spotted at a high-end restaurant.
But the most impressive moment came when Cohen was put back on the stand under oath and matter-of-factly claimed that he had lied in his prior hearing, when he pleaded guilty to lying.
In his 2018 guilty plea before U.S. District Judge William Henry Pauley III, Cohen admitted to this conduct under oath.
Then, when Cohen was asked by Trump’s counsel, “Did you lie to Judge Pauley when you said that you were guilty of the counts that you said under oath that you were guilty of? Did you lie to Judge Pauley?”
Cohen responded, “Yes.” He was then again asked “So you lied when you said that you evaded taxes to a judge under oath; is that correct?” He again responded, “Yes.”
Most of us expected the Justice Department to bring new perjury charges at that point. It is rare that a defendant will actually take the stand and confess to perjury. However, Cohen was now useful again. This time, he was willing to deliver Trump. The Justice Department and Manhattan prosecutors were clearly willing to tolerate a little perjury for that prize.
Cohen’s conduct has already loomed large in the Manhattan proceedings. When Keith Davidson took the stand — the attorney who represented both Stormy Daniels and former Playboy model Karen McDougal — he recounted how Cohen was furious about not being offered a job in the White House. That directly contradicts Cohen’s congressional testimony. Davidson said that Cohen believed he might be named attorney general.
The account, if true, shows that Cohen is not only unethical, but also delusional. Cohen was found incapable of being an attorney, let alone an attorney general.
As prosecutors set the table for the grand arrival of their star witness, the testimony only got worse. David Pecker, the former owner of the National Enquirer, said charitably that Cohen was “prone to exaggeration.”
Davidson described Cohen’s profane and unprofessional conduct, stating that “the moral of the story is nobody wanted to talk to Cohen.” That may be the first time the word “moral” was used in the same line with Cohen.
Former Trump associate Hope Hicks mocked Cohen on the stand. She said that he constantly tried to insinuate himself into the campaign, without success, and that he “used to like to call himself Mister Fix It, but it was only because he first broke it.” Mind you, these were his fellow prosecution witnesses, not the defense.
These witnesses also contradicted the basis for the prosecution. Pecker said that he killed stories for various celebrities for years, and that he did so for Trump for over a decade before he ran for office. Davidson testified that he did not consider the deal to be “hush money” but simply “consideration” to kill bad press.
Hicks testified that she believed Trump wanted to kill the stories in significant part to protect his family from embarrassment.
Cohen could not even maintain a consistent position during the trial. Many of us have denounced the gag order on Trump that prevents him from responding to Cohen’s unrelenting attacks in the media. Cohen then promised to stop any further comments. That promise may have set a record for Cohen. He kept it for roughly three days before being accused of trolling for dollars on social media by attacking Trump.
District Attorney Bragg will now call this disbarred, serial perjurer to make the case against a former president. Under New York law, the oath administered by the court is supposed “to awaken the conscience and impress the mind of the witness in accordance with that witness’s religious or ethical beliefs.”
Before the bailiff administers the oath to Cohen, Judge Juan Merchan may have to warn spectators in the courtroom not to laugh. For anyone familiar with Cohen, it will sound like the ultimate punchline to a bad joke.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
Last night, I had the pleasure of attending the White House Correspondents’ Dinner at the Washington Hilton. This dinner was memorable from past years in the huge number of anti-Israeli protesters around the hotel. I was dropped off a couple blocks from the hotel and immediately confronted with protesters with cameras demanding that I denounce Israel. Once guests made it to the security line, they walked next to protesters shouting insults and some tossing fake blood. In other words, it was not that different from my campus so there was a sense of familiarity.
I have attended the dinner in prior years, including when I worked for CBS, NBC, and BBC. I was attending this year with my colleagues at Fox News.
The President did a very good job and delivered some very funny lines: “The New York Times issued a statement blasting me for ‘actively and effectively avoiding independent journalists. Hey, if that’s what it takes to get The New York Times to say I’m active and effective, I’m for it.”
He primarily attacked his opponent, which is not surprising. (“Age is the only thing we have in common. My vice president actually endorses me.”). Some lines surprisingly received applause despite their implied slap at the treatment of the WHC by his administration: “In a lot of ways, this dinner sums up my first two years in office: I’ll talk for 10 minutes, take zero questions and cheerfully walk away.”
He spoke to “all my friends in the press . . . and Fox News.” It was a funny but poignant line for a press corps repeatedly criticized for being in the bag for the Bidens.
I must confess a certain dismay at having President Joe Biden speaking under a huge banner reading “Celebrating the First Amendment.” As I have written in columns and my forthcoming book, President Biden has proven arguably the most anti-free speech president in our history after John Adams. While that record primarily reflects his support for censorship rather than curtailing the free press, the banner held a degree of bitter irony for some of us in the free speech community.
This year’s host was Colin Jost who also had some very funny moments. I have been to some WHC dinners where the hosts were distinctly unfunny and even painful. Jost had some very good jokes, even as he was poked fun at Fox, New York Post, and conservatives. My favorite WHC dinner remains when Ray Charles appeared. He proceeded to sing a couple of his signature songs. His voice had become even more gravelly with age and it only made the songs more powerful. The whole room was rocking as was then President Barack Obama.
Yet, Jost brought some good material:
“My Weekend Update co-anchor Michael Che was going to join me here tonight, but in solidarity with President Biden, I decided to lose all my Black support. Che told me to say that, and I’m just realizing I was set up.”
“Doug [Emhoff], as you can tell from all the comments about my wife, I’m also used to being the second gentleman.”
“The Washington Post is here. … They were the ones taking your coats at the door. Please be sure to tip.
He also ended with a moving tribute to his grandfather, a firefighter in Staten Island, New York, who passed away in the last year. It was genuine and moving.
Throughout the remarks, Jost remarked how he could not believe the race was tied despite all of the bad coverage of Trump. However, the open support shown for the President last night is why the one-sided coverage is not having much penetration with many Americans. Many in the public now simply tune out the mainstream media after seeing the bias and reframing of the news, including the continued protection of the President by the media. Indeed, Peter Doocy is viewed by many as one of the few members of the White House Press Corp willing to consistently push the President in damaging stories.
I joined figures like Shannon Breem (who I will see this morning as her guest on Fox Sunday), Jennifer Griffin, Trey Yingst, and others at our table. It was great to see Trey out of his usual flak jacket in a war zone, though the Beltway can be an equally lethal environment. The evening would not be complete without my own embarrassing moments. When Trey and I decided to do a selfie, I showed my usual complete inability to handle the basic functions of life. Here is my selfie that I took of the two of us:
Having spent time under fire and recognizing incompetence under pressure, Trey delicately noted that I did not have a clue how to take a selfie, grabbed my phone, and took this picture:
This is why the closest place that Fox allows me to real combat is the United States Supreme Court.
To make matters even worse, my friend Steve Doocy was there (with, of course, that “other Doocy,”Peter). Steve also had to grab my phone to perform this simplest of tasks:
The fact is that, like Blanche DuBois, I have always depended on the kindness of others to get me through the basic requirements of life. As my children can attest, the idea of my work with modern technology as simple as a cellphone is fraught with danger. This is why I try to stay in the 18th Century for much of my academic work.
It was a fun night, though the walk out of the hotel was another running of the gauntlet with protesters throwing the fake blood and screaming profanities at the journalists and others leaving the event. It was around midnight, but many protesters remained (though the numbers were much smaller than the crowd at 6pm).
I happily skipped the after-dinner parties since this was long past when all good law professors should be in bed. Nevertheless, it was a fun evening and I have the non-selfies to prove it.
In a city of flacks, Ian Sams is prototypical. Quotable, punchy, and fast on social media, he stays ahead of the news cycle. Those traits are greatly valued by clients in this city where losing control of a narrative can allow a controversy to metastasize into a full fledge scandal. What is different is the client. Sams, a well–known Democratic operative, is not working for a Democratic campaign, but a Democratic president and speaks for the White House Counsel.
That position continues to raise eyebrows, as it did this week when Sams issued insulting and taunting postings after the House Oversight Committee asked the President to answer ten questions from its impeachment inquiry. Sams posted images of signs mocking the inquiry next to his title reading “White House spokesman for oversight and investigations. Deputy Assistant to the President & Senior Advisor to WH Counsel’s Office.”
The White House Counsel’s office has historically avoided engaging in political spin and attacks. It prides itself on representing the office of the Presidency, not the president as a person. President Biden has personal counsel to look after his interests as an individual. What is striking is that his personal counsel has shown far more circumspection and restraint in responding to such inquiries.
Sams has been previously questioned by the White House press corps over the accuracy of his statements and that fact that he is routinely cited as speaking for White House Counsel’s office on a variety of legal questions but lacks any law degree. He was also the subject of a complaint from the head of White House press corps over his giving them “marching orders” on how to control the allegations against the President.
Sams’s statements often are long on sarcasm and short on substance. Even normally favorable outlets like CNN have noted Sams’s refusal to address specific questions while lashing out at the Special Counsel or others.
Sams has a long resume as a political staffer. He graduated from the University of Alabama with a degree in political science, where he was president of the College Democrats. He went on to work with the Democratic Senatorial Campaign Committee (DSCC) in Washington, D. C. as well as Democratic candidates, including but not limited to Sen. Tim Kaine (Va.), Tom Carper (Del.), and Hillary Clinton. He also worked for the Democratic National Committee in Washington, D. C.
That is an impressive resume for any flack, and I do not fault Sams for his aggressive style or his clientele. Indeed, I do not even blame him for his work at the White House. I blame White House Counsel Ed Siskel, who has used Sams to materially change the role and function of his office in this corruption scandal. Siskel previously worked in the Obama Administration and was one of his students at the University of Chicago. His use of Sams has returned the office to an earlier, more partisan operation.
The White House Counsel’s office has been headed by some of Washington’s most revered legal figures from Lloyd Cutler to Boyden Gray. These were lawyers with strong Republican or Democratic alliances who were both aggressive and protective in support of their presidents. However, they maintained strict lines in offering objective (and sometimes unwelcomed) advice to presidents in the interest of their offices. They were adamant in maintaining space between the political and legal operations of the White House.
There have been White House counsels who lost that objectivity and separation to the great peril to themselves and their office. Nixon had John Ehrlichman, Chuck Colson, and John Dean — all of whom were convicted or pleaded guilty to criminal offenses.
The office under Siskel has returned to earlier models of partisan White House Counsel. The first such office holder, then called Special Counsel, was New York Judge Samuel Rosenman who made no pretense of any independent or apolitical role in working for Franklin Delano Roosevelt. He trained and was followed by Clark Clifford who was aggressively political.
Presidents have also routinely selected close friends or loyalists for the role. The office could be used as a counterfoil to the Attorney General, who often pursued conflicting institutional interests.
Yet, as the White House Counsel’s office grew, it took on greater ethical and reporting responsibilities. The culture changed to protecting the presidency as much as the president, including giving unwelcomed advice. That was the case in the final days of the Trump Administration when Pat Cipollone confronted the President on election fraud claims and actively pushed back on private counsel like Rudy Giuliani. During the impeachments, Cipollone was circumspect and restrained. He was rarely in the public eye and his office issued comparably few responses to media stories.
In past years, it was often difficult to get a statement on the record from the White House Counsel’s office, which routinely referred anything even remotely political to the Chief of Staff or the Press Secretary.
That has changed with Sams, who has issued statements from the White House Counsel’s office with the speed and the sarcasm of a DNC flack. This is often in response to requests for the legal position of the office to a major filing or legal claim.
He is unrelenting and, by all appearances, entirely unrestrained. Every day, there are Sams-I-am missives that border on the Seussian: “You do not like them. So, you say. Try them! Try them! And you may. Try them and you may, I say.”
I have previously raised concerns over the role of Sams in the impeachment inquiry. In my testimony in the first Biden impeachment hearing, I noted that the Biden White House was approaching a dangerous line in pushing false claims on the corruption scandal, including repeating President Biden’s past denials that he never spoke to his son or had knowledge of his son’s foreign dealings. It can lead to the same blurred lines that led to not just the impeachment articles but the criminal charges in the Nixon Administration.
Those concerns became magnified this month when the House sent the ten questions to the President to address glaring contradictions in his past public statements. Sams immediately responded on behalf of the White House Counsel:
“LOL. Comer knows 20+ witnesses have testified that POTUS did nothing wrong. He knows that the hundreds of thousands of pages of records he’s received have refuted his false allegations. This is a sad stunt at the end of a dead impeachment. Call it a day, pal.”
Again, it is the type of posting that one would expect from the DNC, not the WHC. Yet, Siskel clearly approves of this type of taunting, sarcastic response from an office that has fought to maintain its image of professionalism and prudence.
Sams, not Siskel, is now the face of the White House Counsel’s office. That is certainly welcomed by the Biden campaign, but it is often difficult to distinguish postings between the two operations. With an impeachment inquiry in the field, that aggressive media role can produce more than favorable media articles. It can become the basis for actual impeachment articles.
Below is my column in the Hill on the return of the Comstock Act to the national debate. The controversial law came up in oral arguments over the access to the abortion pill in the Supreme Court. The history of the Act, and its namesake, remains a blot on our legal system. The repeal of the Comstock Act is long overdue.
Here is the column:
For the free speech community, the recent oral arguments over the expanded access to the abortion pill, mifepristone, contained a chilling jump-scare as two justices raised the applicability of the Comstock Act. That 151-year-old law banned the mailing of materials that were deemed “obscene, lewd, [or] lascivious.” The ban included everything ranging from contraception to pornography. It remains one of the most glaring attacks on free speech principles in our federal code.
The relevance of the Comstock Act to the issue of the availability of mifepristone is highly contested and unlikely to draw a majority on the Court. Indeed, while this same argument has been embraced by lower court judges, Justices Clarence Thomas and Samuel Alito appear to be outliers on the Supreme Court in raising its possible relevance in this case.
For some of us, this is a painful reminder that the law continues to linger on our books. In my forthcoming book, “The Indispensable Right: Free Speech in an Age of Rage,” I criticize the Comstock Act and call for Congress to repeal it as a protection of free speech. It still reflects the intolerance and arbitrariness of its namesake, the poisonous figure Anthony Comstock.
For the free speech community, naming a law after Comstock is akin to naming a law on business ethics after Bernie Madoff. Comstock personified the hate and intolerance that sustains censorship systems. He was born to a large, religious Calvinist farming family in New Canaan, Conn. Even in that deeply religious community, he was viewed as especially rigid in his moral views. During the Civil War, when most people were dealing with the horrors of mass casualties, Comstock was denouncing other soldiers for their use of profanity. Comstock was so widely disliked that, when a reporter once asked an assistant whether he had been punched in the face that morning, the assistant responded, “Probably.”
As the founder of the New York Society for the Suppression of Vice, Comstock set about his work of “saving the young from contamination” and “Devil traps.” His view of obscenity stretched from lascivious lifestyles to feminism to contraception. He campaigned against women who challenged social and business barriers. For example, he was unrelenting in his efforts to imprison Victoria Claflin Woodhull and her sister Tennessee “Tennie” Claflin. The two women had committed the offenses of not only setting up their own brokerage house in New York, but also publishing a newspaper openly discussing sexual freedoms.
Comstock was able to secure the appointment as a mail inspector and promised to use the position to perform a needed “weeding in God’s garden.” He ramped up his campaign against blasphemy and the writings of “infidels” and “free lusters.”
In the case of Woodhull and Claflin, Comstock pushed to have them arrested over the publication of their newspaper. After they defied him and continued to publish, he went to Connecticut to mail copies of the paper to an alias. He then used the mailing to have the sisters re-arrested for a federal misdemeanor for the interstate mailing. When supporters bailed them out, he had them arrested again.
Despite his lack of success, Comstock was able to get members of Congress to pass the Comstock Act. Always eager to prove their own virtue, members codified his agenda against “obscene, lewd, or lascivious” material. There he remains, lurking in codified form within our federal code. The act survives for the same reason it was first enacted: Members fear the stigma of rescinding a law purportedly barring obscene material.
It does not matter that we have ample laws criminalizing the transmission of material such as child pornography. Moreover, the Justice Department has maintained in an internal memo that the law should only be enforced where prosecutors can establish intent by the sender that the material will be used for unlawful purposes. Medically harmful or threatening material can also be subject to criminal or civil actions under other laws.
The applicability of this law to “lewd and lascivious” speech would likely be struck down, but it remains on the books as a statutory affront to our free speech values. Some Democratic members, such as Rep. Cori Bush (D-Mo.), have called for the Comstock Act to be rescinded.
For the free speech community, these members are uncertain champions in any fight against censorship. Democrats in Congress have overwhelmingly supported censorship and blacklisting of those deemed spreaders of disinformation, misinformation, and malinformation. Some of these members are now using McCarthyist attacks against those who criticize the president or testify for free speech. However, the free speech community is used to fleeting allies that rise and recede with the politics of the moment.
The Comstock Act is a relic from one of the most anti-free speech periods in our history. Countless citizens were abused under Comstock and his later-eponymous law. They are the victims of those who professed to “weed God’s garden” to rid our nation of “infidels” and “free lusters.”
The repeal of the Comstock Act will not materially change the case over the abortion pill or other related cases. It would, however, bring closure to a disgraceful period of history where social and political dissenters were isolated, ostracized, or imprisoned for their views. Ultimately, the most indecent thing revealed by Congress in passing the Comstock Act was the act itself.
The question is whether our current leaders have the courage to stand with liberty over zealotry and repeal the Comstock Act.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
The United States Court of Appeals for the Fifth Circuit has blocked border enforcement by the state under Texas’s SB 4. Many of us had predicted this result given the prior precedent of the Supreme Court on the federal preemption of state immigration laws. However, the opinion also rejected the invasion theory made by states under Article 1, Section 10 and the “State War Clause.” I also previously discussed how this interpretation would fail due to the text, intent, and history of the underlying constitutional provision.
The lawsuit had a good-faith basis in challenging the scope of federal preemption and seeking to regain some room for state officials to protect their border. Texas and other states have been reduced to passive observers as the Biden Administration maintains an effective open border. The state is then expected to deal with the massive burden of the influx. While I agree with the Fifth Circuit that it is largely locked into the existing precedent in cases like Arizona v. United States, 567 U.S. 387, 399 (2012), finding “field preemption” of state immigration laws. The state can now seek a review with the Supreme Court itself.
In the 2-1 opinion, Chief Judge Priscilla Richman upheld the district court’s preliminary injunction, but it is effectively a ruling on the merits since it had to find a substantial likelihood of prevailing on the merits to rule in favor of the federal government. She found that that the detention and removal provisions conflict with federal laws and policies on granting access and asylum status for immigrants pending review. It is a bitter recognition for the state that the open border conditions are the product of federal laws and policies. The majority noted that:
“The Supreme Court in Arizona spent considerable time and ink in explaining how the removal procedures work under federal law. ‘Removal is a civil, not criminal, matter.’ The Texas and federal laws are not congruent on this score. The Supreme Court also explained that ‘[a] principal feature of the [federal] removal system is the broad discretion exercised by immigration officials.’”
Judge Andrew Oldham dissented and argued that “The people of Texas are entitled to the benefit of state law right up to the point where any particular application of it offends the Supremacy Clause. And Texas state officials should be trusted at least to try sorting those constitutional applications from any potentially unconstitutional ones.”
The rejection of the State War Clause argument is important for future cases in other states. The panel declared:
“Texas has not identified any authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: ‘The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark…’
Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.”
The State War Clause provides:
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
Texas insisted that the massive numbers coming over the border is an invasion, particularly given the role of cartel gangs in organizing the effort. As I previouslywrote, Article I, Section 10, Clause 3 of the Constitution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
That language was not the manifestation of a new deal with the states. It was largely taken from the much-maligned Articles of Confederation. Despite wanting to strengthen the powers of a federal government, the Framers incorporated the original recognition that a state can always act in self-defense in the face of an invasion. This argument is usually combined with the Guarantee Clause of Article IV of the Constitution that states that the federal government must protect the states “against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” However, the reference to invasion was clearly used more narrowly to refer to the armed incursion of a state or nation.
In his Report of 1800, James Madison discussed the Guarantee Clause in relation to the enactment of the infamous Alien and Sedition Acts of 1798. He noted that “[i]nvasion is an operation of war.”
What constitutes an “invasion” in a colloquial sense is highly subjective. When Benedict Arnold took 1,600 men over the northern border into Canada in 1775, it was rightfully called an invasion. Yet when millions pour over the southern border, it is called lax enforcement. The legal difference is obvious. One was an organized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country. Yet, for border states, the distinction easily can be lost in the costs and the crime associated with runaway illegal immigration.
It is clear that the Constitution’s references to “invasion” meant an organized foreign army. When the Constitution was ratified, the federal government had only a small regular army, and border states were legitimately concerned about an invasion by hostile foreign powers or their surrogates.
The failure at our border is a problem of competency rather than the Constitution. If “invasion” can be defined this broadly, any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity. The theory has been rejected by various trial and appellate courts. This issue will again be before the Fifth Circuit in United States v. Abbott, in an en banc review in April.
Below is my column on Fox.com for the hearing this week on the corruption scandal involving the Biden family. For years, the Democrats have opposed any effort to investigate the Bidens, including as part of the current impeachment inquiry. Various members misrepresented my earlier testimony during the hearing on the basis for the impeachment inquiry. Members like Rep. Jamie Raskin (D., Md.) stated that I joined other witnesses in saying that there was nothing that could remotely be impeachable in these allegations. That is demonstrably untrue. My testimony stated the opposite. I refused to pre-judge the evidence, but stated that there was ample basis for the inquiry and laid out various impeachable offenses that could be brought if ultimately supported by evidence. I also discussed those potential offenses in columns. The purpose of the hearing was not to declare an impeachment on the first day of the inquiry. Unlike the two prior impeachments by many of these same Democratic members, this impeachment inquiry sought to create a record of evidence and testimony to support any action that the House might take.
Here is the column:
In the 1966 movie “A Man for All Seasons,” Sir Thomas More faces Richard Rich, an ambitious office seeker who would ultimately lie and betray him. In this British historical drama, More warns Rich that “when a man takes an oath, he’s holding his own self in his own hands like water, and if he opens his fingers then, he needn’t hope to find himself again.”
This week, Democrats appear to have finally drained away what remained of themselves and their party. For years, Democratic members and the media have demanded any evidence of the direct involvement or knowledge of President Joe Biden of the influence-peddling operation of his son, Hunter, and his brothers, James and Frank.
In the hearing, witnesses testified under oath about specific meetings with Joe Biden discussing these foreign dealings and the family business interests. Bank records were introduced showing the transfers of millions going to Hunter and various Biden family members.
Faced with the evidence that the president lied about his lack of any knowledge or involvement in the influence peddling, the Democrats opened their fingers wider.
Rep. Dan Goldman, D., N.Y., captured the problem for Democrats in even addressing any of the mounting evidence contradicting the president. Yet, Goldman has long shown a willingness to rush in where angels fear to tread.
In previous attacks, Goldman repeatedly hit the Bidens with friendly fire when eliciting damaging answers from witnesses. Goldman has a habit of raising the worst evidence that his colleagues have avoided. In one hearing, he stumbled badly in raising the WhatsApp message where Hunter told a Chinese businessman that his father was sitting next to him and would not be pleased unless he sent him money. On another occasion, he prompted an IRS whistleblower to note that an email Goldman read into the record was actually a direct contradiction of the denials of the president.
In the latest misstep, Goldman pressed former Biden partner Tony Bobulinski on a proposal shared with Hunter and others to reserve 10% for “the Big Guy.” In other emails, Bobulinski was told to use such codes to avoid mentioning Joe Biden’s name. He was expressly identified as “the Big Guy.” Video
Goldman snapped at Bobulinski, “Did anyone ever respond to that email?”
Bobulinski responded “Yes, they did numerous times. Hunter himself did.”
Goldman blurted out “you’re right” before angrily reclaiming his time to cut him off.
Things did not prove any easier for other members. Rep. Alexandria Ocasio-Cortez, D., N.Y., imploded by mocking Bobulinski and challenging him “It is simple, you name the crime. Did you watch him steal something?”
Bobulinski proceeded to rattle off a series of possible criminal acts and Ocasio-Cortez cut him off. She then bizarrely pretended that he did not just list the crimes and barked “What is the crime, sir? Specifically?”
Bobulinski was not the only one confused and noted “you ask and answer the question, I answered the question, RICO, you’re obviously not familiar with…”
That is when Ocasio-Cortez again cut him off with “Excuse me, sir. Excuse me, sir. Excuse me, sir. RICO is not a crime, it is a category. What is the crime?”
With that, it appears that Trump has now been cleared of charges in Atlanta by no one other than Alexandria Ocasio-Cortez. Racketeering is a crime and some of the crimes referenced by Bobulinski are commonly part of such conspiracies.
The exchange captured the lunacy of the hearing as Democrats demanded evidence and then ignored it when it was repeatedly offered by witnesses and members.
Yet, Ocasio-Cortez was illuminating on one point. Neither she nor her colleagues were willing to admit the obvious. Few people now disagree that Hunter was openly engaging in influence peddling, which is a form of corruption that the government has long fought around the world. It is also clear that Joe Biden knew of that influence peddling not just from his son but newspaper accounts. He had knowledge of the corruption and facilitated it. However, Ocasio-Cortez wanted to ignore the millions of dollars acquired in influence peddling to press a witness on whether he saw the president steal something like a purse or a hubcap.
The Democrats have allowed their very identity to drip through their open fingers. They have become a party that calls for censorship, ballot cleansing, and court packing. Now they are dismissing allegations of raw influence peddling after opposing every effort to investigate it.
Those who raise free speech or free press concerns now face a McCarthy-like mantra from Democratic members that they are nothing more than fellow travelers of Russia as we head into yet another election. Some Democratic members have called for criminal charges against reporters or demanded the names of sources. MSNBC contributor and former Sen. Claire McCaskill even attacked former and current members testifying in favor of free speech as “Putin apologists” and Putin lovers.
As a lifelong Democrat from a politically active Chicago family, I can no longer recognize the party from my youth. We once stood for something other than the next election or hating others.
By the end of the hearing, virtually every Democratic member had attacked the witnesses and denied the obvious corruption surrounding the Biden family. They had become a party of Richard Riches. Of course, this unified effort to deny the obvious left little time to look down at what remained in their hands. They had owned the moment when the party fought to shield one of the most extensive and lucrative influence peddling operations in history.
After that ignoble effort, there was little reason to look down since they “needn’t hope to find [themselves] again.”
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.
Fox News contributor Jonathan Turley discusses the latest in Fulton County D.A. Fani Willis’ misconduct investigation and unpacks key Supreme Court cases.
In a big week for the Supreme Court, justices heard several cases relating to the First Amendment. Arguments from one case relating to government censorship sparked viral backlash after Justice Ketanji Brown Jackson appeared to suggest government collusion with social media companies could be justified. On “America’s Newsroom” on Wednesday, Fox News contributor and constitutional scholar Jonathan Turley outlined his concern over the “chilling” remarks from Justice Jackson.
JONATHAN TURLEY: There are indeed important First Amendment cases here. As someone associated with the free speech community, we’re all on edge. It was chilling in the social media case to hear justices like Jackson repeatedly say, what’s the problem with the government coercing speech? Why shouldn’t they, when there are really troubling periods … like in the pandemic. And many of us were really sort of agape at that, because much of what the government did on censorship was wrong. Many things that they were censoring, by scientists who were fired and disciplined and barred from social media, in some cases. They were vindicated, ultimately, on things like the origin of the virus [in a Chinese lab], showing that it’s not just a possibility, many consider it the leading possibility. Closing of schools. They were vindicated on many of those things. And yet you had Jackson saying, I don’t see why the government can’t coerce social media. So, we’re all very concerned where the government will land there.
Supreme Court Justice Ketanji Brown Jackson, who was unable to define the word “woman” when asked at her confirmation hearing last year, is now under scrutiny for her dissent in a landmark decision rejecting affirmative action. (Tom Williams/CQ-Roll Call, Inc via Getty Images)
The Supreme Court heard Murthy v. Missouri on Monday, a case challenging the Biden administration’s alleged coordination with Big Tech to censor certain messages. The case stemmed from a lawsuit brought by Republican-led states Missouri and Louisiana that accused high-ranking government officials of working with social media companies “under the guise of combating misinformation” that ultimately led to censoring speech on topics that included Hunter Biden’s laptop, COVID-19 origins and the efficacy of face masks — which the states argued was a First Amendment violation.
As the justices questioned whether the Biden administration crossed the constitutional line, Justice Brown Jackson appeared to suggest that such actions can be justified.
“My biggest concern is that your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods,” she told the lawyer representing Louisiana, Missouri and private plaintiffs.
“And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information,” she continued.
“So, can you help me? Because I’m really — I’m really worried about that because you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems,” Jackson added.
Her comments quickly went viral with dozens of people insisting that “hamstringing the federal government” is “literally the point” of the First Amendment.
Fox News’ Lindsey Kornick and Alexa Moutevelis contributed to this report.
Below is my column in the Hill on the recent decision in Georgia and the “odor of mendacity” rising out of various courtrooms across the country. It is the smell of not just selective prosecution but political bias in our legal system. It is becoming harder to deny the existence of a two-track system of justice in the country as commentators and even a few courts raise concerns over the role of politics in prosecutions.
Here is the column:
The removal of lead special prosecutor Nathan Wade from Donald Trump’s prosecution had the feel of a Southern Gothic.
Channeling Tennessee Williams in his play “Cat on a Hot Tin Roof,” Judge Scott McAfee wrote that, after their testimony, there remained “an odor of mendacity.” That odor was particularly strong after the hearings indicated that Wade may have committed perjury in his earlier divorce case, and that both Willis and Wade were credibly accused of lying on the stand about when their relationship began.
For many citizens, mendacity, or dishonesty, is wafting from various courtrooms around the country. The odor is becoming intolerable for many Americans as selective prosecution is being raised in a wide array of cases. The problem is that courts have made it virtually impossible to use this claim to dismiss counts. Yet there is a disturbing level of merit to some of these underlying objections.
For years, conservatives have objected that there is a two-tier system of justice in this country. I have long resisted such claims, but it has become increasingly difficult to deny the obvious selective prosecution in a variety of recent cases and opinions.
I have long stated that the charges against Trump over documents at Mar-a-Lago are strong and based on established precedent. However, the recent decision of Special Counsel Robert Hur not to bring criminal charges against President Joe Biden has undermined even that case.
Hur described four decades of Biden serially violating laws governing classified documents. The evidence included Biden telling a third party that he had classified material in his house and actually reading from a classified document to his non-cleared ghostwriter. There is evidence of an effort to destroy evidence and later an effort of the White House to change the report. There is also Biden’s repeated denial of any knowledge or memory of the documents found in nine locations where he worked or lived.
Hur ultimately had to justify the lack of charges based on a belief that he could not secure a conviction from a D.C. jury with an elderly defendant with diminished mental faculties. Although Special Counsel Jack Smith could still proceed on obstruction counts, his prosecution of Trump for the retention and mishandling of national security documents is absurdly in conflict with the treatment Biden is receiving.
In New York, the legislature changed the statute of limitations to allow Trump to be sued while New York Attorney General Letitia James effectively ran on a pledge of selectively prosecuting him. She never specified any particular crime, just promising to bag Trump. Ultimately, James used a law in an unprecedented way to secure an absurd penalty of roughly half a billion dollars, even though no one lost a dime because of the Trump loans.
Manhattan District Attorney Alvin Bragg has also come up with an unprecedented way of using a state law to effectively prosecute Trump for a federal offense that the Justice Department has already rejected.
The same odor has been lingering in the Hunter Biden cases. The Justice Department had reached a ridiculous plea agreement with Hunter Biden that would have allowed for no jail time and a sweeping immunity agreement that would have protected him from all of his other alleged crimes.
As the plea agreement fell apart in court, the prosecutor admitted that he had never seen a defendant given such a deal over his long career. This came after the Justice Department had allowed the statute of limitations to run out on major felonies and scuttled efforts to conduct searches and interviews. Even after that embarrassing hearing, the Justice Department was still trying to preserve the agreement.
It is not just the Trump and Biden cases where there is a stench of selective prosecution. Consider a few other recent cases.
In California, U.S. District Court Judge Cormac J. Carney issued an opinion that found such evidence of selective prosecution against conservative groups. In considering a far-right group, Carney noted that the Justice Department has had sharply different approaches based on the political views of the defendants. Antifa and other leftist groups often see charges dropped, whereas federal prosecutors seek draconian sentences against conservative defendants.
“Such selective prosecution leaves the troubling impression that the government believes speech on the left more deserving of protection than speech on the right. The government remains free to prosecute those, like Defendants, who allegedly use violence to suppress First Amendment rights. But it cannot ignore others, equally culpable, because Defendants’ speech and beliefs are more offensive. The Constitution forbids such selective prosecution,” Carney noted.
Likewise, this week, former U.S. Attorney Rachael Rollins was disbarred after being found to have lied to investigators about leaking material to the press for political purposes. Rollins had allegedly made a clear and knowingly false statement to federal investigators, but the Justice Department just shrugged it off and refused to indict.
FBI Director James Comey received similar gentle treatment after removing FBI material and arranging for information to be leaked to the media. Meanwhile, defendants such as Trump’s National Security Adviser Michael Flynn were pursued relentlessly for making false statements to investigators under Comey’s watch.
These and other cases have fulfilled Trump’s narrative about a politically weaponized legal system. The fact is that many in cities like New York are thrilled by selective prosecution and biased sentencing decisions directed at locally unpopular figures.
The rest of us are left in courtrooms, from Georgia to Washington to New York, asking the same question of Tennessee Williams’ “Big Daddy” Pollitt: “What’s that smell in this room? …Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School.
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American Family Association (AFA), a non-profit 501(c)(3) organization, was founded in 1977 by Donald E. Wildmon, who was the pastor of First United Methodist Church in Southaven, Mississippi, at the time. Since 1977, AFA has been on the frontlines of Ame
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