Trump and Bondi are Coming for Free Speech

Trump again and again. We saw this at Charlie Kirk's uh funeral talking about his enemies and he hates his enemies. >> Oh yeah, >> that is language that actually even goes beyond Johnson. It's it's language of friend and enemy. The theorist Carl Schmidt, the Nazi juristprud uh who came up with that idea, the Nazi legal thinker, friend and enemy defining politics. Um that is Trump to to a to a tea. He's almost quoting uh in the same way that Steven Miller is is sort of imitating Gobles in that in his speech uh Trump really using the language of friend and enemy the Nazi rhetoric of of Nazi philosophy.

[Music] Amazing book, Separation of Church and Hate. And what an honor it was to do those two um uh episodes about it. So listeners, if you didn't hear them, go back and and listen to, it wasn't true then, but it certainly is true now. Best uh New York Times bestselling author John Fugalang's interview on separation of church and hate. I I nabbed a bestseller uh for for my interview and I'm really thrilled.

>> Thank you. I look forward to being completely insufferable. Professor, I'm going to make you I'm going to have to be referred to as New York Times bestselling author John Fuglesen forever because I needed a way to make my less my last name uh uh more unwieldy and obnoxious. Um you however have a great piece in the Guardian this week that I'd like to begin by talking about. Everybody should read this. We touched on some of these themes last week, but your piece published in the Guardian is called Trump has forgotten his oath of office. History will not remember him kindly. and you write in it that these presidents, they're not judged by whether violence occurs on their watch.

You're right. They're judged by how they respond to it. Can you explain how that historical test has played out? I mean, more recently, we can talk about George W. Bush and how he took violence and used it to invade the wrong country and lead the US to financial ruin. But, but can you I want to ask about that historical test from Lincoln's appeal to the better angels of our nature to Andrew Johnson's disastrous failure of leadership. Yeah, I mean part of the idea of the piece and I should say it really came from our conversations on this podcast last week where we were talking about how to think about violence historically. And that really got me thinking and solidified into this piece. And part of the idea is to um try to think about how presidents should react to violence and the importance of their words by thinking about how uh Trump will be judged in the future. And one way to do that, of course, is by analogy. How do we judge violence of the past? And with history, it's often very helpful to move not to recent history, but distant history. And when you compare those two uh presidents, um

Abraham Lincoln and his vice president, I should just lay a little bit of this out. Uh Lincoln chose in an attempt at unity a vice president from the Democratic Party, Andrew Johnson. Um and president under uh a different guise. uh he didn't seek the end of the end of slavery, the end of the 13th amendment, but he certainly was a white supremacist and wanted a white supremacist. >> Traditional values, professor, traditional values. Can you stop using your woke words like white supremacist, please? >> I was going to say, you know, that's the reality of American history that you've got aspirational presidents like Lincoln and then you also have others like Andrew Johnson. So, let me get into it.

I mean, how did they respond to violence? First of all, Lincoln uh on the dawn of the Civil War, knowing really that um war was inevitable uses this phrase in the first inaugural, which is a speech entirely about the oath of office. It is an inspiration for this podcast and its name. Uh and that last line, which I think I did mention last week, but I'll mention it again. He refers to the better angels of our nature. Now, what he's trying to do is combine the idea that the president is the only person elected by all the American people. Well, if you think about it, senators elected uh by a state or congress people by their district, but the president representing everyone.

How do you think about that? What's the concept to think about everyone? And the idea of all of us under a rule of law is what he turns to. And the oath, of course, talks about that. And he sees the law as an aspirational ideal. Um, think of that beacon in the midst of the worst violence in American history, the Civil War. This is nothing close, this period, to what we've seen before. and really at all periods of strife and turmoil when we see that violence threatens democra democracy itself to return to the oath that is the unifying idea. Now contrast that, you know, one of our greatest presidents and we could talk about the details and debate uh about him. We had our um actually we did have the foremost Lincoln living Lincoln scholar on the podcast, Michael Vorberg, uh the basis for Spielberg's movie. And we got into some of that.

>> But what we didn't talk enough about in that podcast, and I I'll mention more now, is the really the precedent for Trump. And I don't mean to say in the sense that Trump is precedented that somehow it's excusable. Quite the contrary. We've seen the horror of what a president incites violence uh looks like and that was Andrew Johnson who not only failed to quell the massive amount of anti-black violence that was going on around the country. The attempt to really again be part of that project of the Ku Klux Clan many of whom were adherent of Johnson to disallow voting.

Um but what Johnson actually does is he directly threatens members of Congress with violence uh who especially those who are aimed at reconstruction at ending slavery and also what is sometimes referred to in that period as the badges and incidents of slavery. Um and and so you know one of our greatest presidents one of our worst. How did they respond? One lifting us up by talking about all Americans one uh threatening our destruction by not just failing to quell violence but inciting it. and Trump again and again. We saw this at Charlie Kirk's uh funeral talking about his enemies and he hates his enemies.

>> Oh yeah, >> that is language that actually even goes beyond Johnson. It's it's language of friend and enemy, the theorist Carl Schmidt, the Nazi juristprud uh who came up with that idea, the Nazi legal thinker, friend and enemy defining politics. Um that is Trump to to a to a tea. He's almost quoting uh in the same way that Steven Miller is is sort of imitating Gobles in that in his speech uh Trump really using the language of friend and enemy the Nazi rhetoric of of Nazi philosophy. So uh you know and in some ways of course in the 19th century Andrew Johnson is writing way is speaking living being president way before the Nazi period but it a lot of the ideas of uh racial violence of race supremacy is definitely are definitely present uh the violent literally violent rhetoric uh present in in Andrew Johnson. So so Trump is in the Johnson tradition I guess is a way to put it.

>> I think you're right. I've referred to him as a big Johnson in several ways. Um, you emphasize, professor, that the the constitutional oath is a president's binding promise to all Americans, not just their party, not just their base. For our listeners, Corey, can you spell out what exactly that oath obligates a president to do in moments of national violence? >> Wow. I that laugh came out, you know, was intense partly because of the the tense moment I think that we're living.

>> I know you're a constitutional scholar and I slipped in a dick joke to your podcast. I apologize in perpetuity. >> It was just not expected, but uh appreciated and and unexpected, but the you know um now I've lost my train of thought. >> Well, let me let me let me ask you. I was saying like, you know, when can you spell out what the presidential oath obligates a president to do in moments of national violence? Yeah, I think that the, you know, certainly to abide by the law is part of it and to uh but I think it's more than that. It's to abide by this commitment to try to speak for all Americans. And so when Trump in particular singles out his enemies, and by the way, in that funeral speech for Kirk, which really turned into a campaign rally, what he's what he's doing is he's calling out who his enemies are, and they are the Democratic Party. I mean, he just comes out and says it or he's he talks about the left. Uh he talks about how Charlie Kirk wanted to love his enemies and he wanted to hate them. I can't think of

something more diametrically opposed to the oath which is supposed to be about unity. That's a sort of simple way of talking about it. Talking about the American people as a a set, as an ideal, as entitled to the same rights. And when you split the polity into those who you're representing and are defending and those you're attacking, uh, it really is nothing less than an assault on democracy, and there are a lot of symbols of that, but to me, this is this is the biggest, the really failure, not just failure to abide by the oath, but the attack on it. >> Well, and also the the weaponizing of tragedy. You know, this is what uh the what I keep coming back to watching the way people have conducted themselves after the awful atrocious murder of Mr.

Kirk is that to me this is Benghazi all over again. They're taking a tragic murder of Americans and they are exploiting that to increase their political gain. I mean when Benghazi happened, first they tried to destroy Susan Rice with it. That didn't work. So they turned it on Barack Obama. Then they turned it on Hillary Clinton. And then Donald Trump was elected. And after January 20th, 2017, they never mentioned those four men killed in Benghazi again. And to our listeners, ask a right-winger sometime. Can you name any of those poor guys? I mean, they were the most important guys in the world, but they never bothered to learn their names because they didn't actually care. They were exploiting violent murder against the people they already hate. I never heard a rep one Republican blame the terrorists for what happened in Benghazi. And we're witnessing the same thing here. This ties into the the the Kimmel uh uh firing, which we'll get into shortly. But I mean, you know, this is weaponizing tragedy for political ends rather than unifying the nation.

You've said Trump mocked the oath. Cory, how dangerous is it when a president turns grief into a political cudgel? I mean, not just against opponents, but against entire communities. >> Well, I think, you know, this this funeral speech uh might go down to to really symbolize his entire approach to governance because on the one hand, he's totally indifferent to truth. Like what does any of this have to do with the killing of Kirk who uh was killed by somebody who's obviously extremely disturbed and yes he had a transgender uh partner roommate in their texts about this but the idea that he's that somehow ties him to the organized >> and they yeah they don't care like like if they >> exactly wrong trying to stop gun violence sorry mad about this so >> well I think too you're I want to just pick up on your point which is so why are they doing this is they're looking for any excuse to attack their opponents to turn the world into of the United States into friend and enemy and to shut down the opposition. I've been saying that for a long time. It's why I talk so much on this podcast about the sedition

act, the actual shutdown of the opposition party. That is what Trump's trying to do. And now that he has this murder, uh this tragedy to exploit, he's jumped right into it. And you know, we'll talk about Kimmel, but one thing that he identified was the degree to which they were refusing to recognize the reality that this wasn't a registered Democrat. and instead we're trying to tie him to the or some some fantasy of an organized left that's uh uh acting in a violent way and that there is no evidence to tie him with this. This was a disturbed individual and I think that's also part of the failure of Trump's rhetoric to you know take uh one incident and then to use it to blame an entire segment of the population and not only that to call them the enemy as he did in that funeral speech.

>> Exactly right. Right. And we'll I mean we'll get to Kimmel, but Kimmel didn't lie about anything. No. >> And he didn't smear anything and he didn't mock any tragedies and what he told was the truth. And we we'll get to how messy they were. But let me just ask you, I want to I want to just close out the discussion on your excellent piece in the Guardian. Professor, >> how important is it >> that presidents have to reject collective blame, whether it's against Muslims after 9/11 or political opponents today, and insist on individual accountability. These guys are just into exploiting this to attack the people they already hate. But how important is it for presidents to reject the notion of collective blame? I mean, I would almost say that, you know, not almost. I would say that that idea, and we've talked about that in reference to the oath clause and the requirement that the president take this pledge the first few seconds in office, but you see it throughout the constitution. Uh the idea is of individual rights, not to be have collective blame or collective punishment. And where do we see it? We see it in in so many of the most important provisions. The right to free

speech for individuals to criticize a president. That is almost its paradigmatic meaning. Um the ban on an established religion and the right to free exercise of religion, which we've talked about at length. The right of individual conscience is what that is about in part. And then of course our equal protection clause. The thing that really and I I just want to bring back to Andrew Johnson. The equal protection clause is the core of the modern constitution. It has that principle in it that individuals have to be treated as individual equals. And who opposed it? Who opposed its passage? Who opposed it when that language was written into the language of Frederick Douglas into the Civil Rights Act of that period? It was Andrew Johnson. That was almost his core of what what what he was opposed to. And the reason we have an amendment with those words in it was because the radical Republicans of the time, the same people that Andrew Johnson threatened, saw the importance of entrenching it in a constitution that

couldn't just be removed by majority vote of the Congress and signed by the president. They wanted an amendment. That's how fiercely opposed they were to Andrew Johnson's white supremacy. So those two words, they are the two most important in the Constitution. uh stand for that idea of individual accountability, individual equality, and not blaming and and putting individuals into stereotypical groups. >> And look what Yeah. Andrew Johnson took advantage of two national tragedies, the Civil War and the Lincoln assassination, and used them both to bring us back. And I remember being a kid and learning about Andrew Johnson and thinking, "Wow, um I'm glad you'll never have another proconfederacy president in this country again."

>> I mean, we got one. I mean, Donald Trump is the first pro-Confederate president to me since Andrew Johnson. I mean, I've never dreamed I'd see a president in my lifetime defend the Confederacy and and exalt monuments to white supremacist traitors. And yet he does it and the media doesn't have the guts to note what this really is. >> The parallels are really frightening. I mean, one thing that people often ask is, well, MAGA has a movement and this sort of white supremacist movement that's behind behind Trump isn't that different. Uh, and Malcolm Nance and I discussed this last week on his podcast.

I'm sure it'll come up again when we have him on um uh ours next week, his great podcast, of course, Black Man Spy. Isn't that different? That was one of the things he was challenging me on. And my answer to that is it is not unprecedented because what you had in Andrew Johnson was not only a constituency but the Ku Klux Clan and related groups, white terrorists um who were behind him. Those were his constituents and he was catering to them when he threatened violence against um uh pro-reonstruction Republicans in Congress and the repudiation I should say. Okay, I mean I'm going to leave on a looking at the past not on a down note because there was an amazing recovery from the Johnson presidency and that was with the subsequent president see of Ulissiz Grant elected at the behest of Frederick Douglas who used those words equal protection who by the way at uh um Lincoln's inaugural um second inaugural uh called out Johnson just you know

writes about how he spoke and saw the danger of that president right there in that moment. He tried uh to meet with him and Johnson called himself a a Moses. But I just a quick sentence about Grant because I want to show the hope here. Even in this dire dire moment, Grant prosecuted more than a thousand members of the clan and related terrorist groups for their racial violence in the 1868 election. He created the Department of Justice, which we're going to talk about, for that purpose. There was a recovery from Johnson. and and of course as you know my theme will recover from this too.

>> Absolutely. So let me talk to you about uh about Jimmy Kimmel who will be recovering very well. I I think the big story here Corey is that um Donald Trump just saved Jimmy Kimmel's show and maybe has kept Jimmy Kimmel on the air for longer than he would have if his meddling winged monkey henchman didn't interfere. But this show was shut down. It's coming back now. But some say this is just Disney caving to pressure. Some say it's because the FCC chair leaned on Disney. We got some people saying it was government censorship. Others saying no, it was coercive self censorship. It was definitely an abuse of power. I was on Piers Morgan yesterday. I had listened to so much false equivalency about this.

I mean, there's no way this doesn't cross the line into a First Amendment violation. Whether it's officially government censorship or not, it appears to be abuse of power right on the surface. This guy, Brendan Carr, Corey, he could have just done this quietly and put the screws to ABC and ABC could have said, "Well, Jimmy, you're you're you're only 12% with the demo. We're going to have to cut your your budget a bit and scale." They could have done this. They could have done this under the radar, but they're so thirsty. They're so stupid. They want so much attention that he goes on Benny Johnson's zombie show and pretty much announces that we're going to be blackmailing private corporations into firing who we want if they want a merger to go through. I mean, I'm still recovering from Michael Eisner being the moral guy in all of this, Cy, but obviously Bob Iger decided he didn't want to have um censorship in the first paragraph of his obituary and and they found a way to start to bring it back. But can you walk us through why government pressure here makes this a

constitutional problem even if Megan Kelly doesn't mind it? >> Uh I am going to get deep into it and I just want to add one one thing to this to set up which is that you know I do think this is when we're looking for hope that this is an example of citizens fighting back. The Disney stock price of course was tanking. there was massive amount of boycott of people uh undoing their subscription to Disney and in those in those actions Disney saw the outcry over its shutdown of free speech. Now to get into your question uh if it was just Disney on its own deciding you know we don't like what this guy's saying we're going to there's no first amendment issue at all. We're not in the realm of the constitution. The first rule of constitutional law is we look for state action. So the first amendment talks about congress sha sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh sh shall make no law and and it talks about abridging of freedom of speech. Uh so you know congress is a standin for the for government the including the president of course. So did government act here or was it Disney on its own? It looks very clear that the chair of the FCC, as you

said, threatened Disney in all sorts of ways, possibly its license. And if that was unclear, the president made it clear in a press conference on Air Force One where he simply said, you know, if you're against me, I'm going to take your license for for you. And you know, I'm paraphrasing, but I watched that. That was not subtle. >> So much game. So much game. I mean I mean the the greatest blessing on this earth is that our fascists are this thirsty and incompetent. Cory, >> well they're so you know in the open now it there's nothing subtle about it. In the past I think you know authoritarianism at least tried to hide itself to some degree often anyway not always but here it just is in the open.

And so he sees these licenses as a gift that he has given to television uh um uh to to to television stations that he can revoke. Now that sounds absurd because well the Federal uh communications commission is an independent agency but as we'll talk about later in the podcast he doesn't see it that way and courts don't see it that way. So to me here's my bottom line. Yes, this isn't just an example of a First Amendment violation. It's almost the paradigm of what it means to violate the First Amendment. A a shutdown by the government using threats of opponent, not just speech, again, opponents.

>> Yeah. And again, you know what? I'm grateful that so many young people are getting a real civics lesson here because even if it's not direct government censorship, it's just as dangerous when government actors use backdoor pressure on private industry to suppress speech. I mean, that's even more insidious than direct censorship. And we should talk about once again what Kimmel actually said on the show because the comments he got in trouble for weren't a joke. They were the setup to a joke about Donald Trump's callous disregard for the murder of Mr. Kirk. Kimmel said in his setup two things that got him in trouble. And and first I was told he lied. Then I was told he laughed at our suffering. Then I was told that he he he didn't he wasn't sad enough about Mr. Kirk. But what Kimmel said was they spent all weekend trying to guarantee that this kid wouldn't be one of theirs, a MAGA, and then they spent all weekend trying to blame this on anybody else. Those two things are totally true. He never said the shooter was a MAGA, although he was raised by MAGA folks in a Republican household. Um Kimmel never mocked the

violence, never made a joke, never made a comment about Kirk. Like this is so messy. Brendan Carr was waiting for the first possible thing he could grab on to to harass and shake down these companies. And he didn't even wait for something actionable. He just took something and they had a full weekend where people lied about it. He mocked Trump's lack of empathy about Kirk's death. Corey, how does that distinction matter both legally and politically that they lied about his comments? He never mocked the violence.

>> Absolutely. I watched it a few times now and I urge people to do the same. We could link to it actually in the in the podcast notes. But what Kimmel does after that setup is he shows Trump being asked by a reporter, "How do you feel in the aftermath of your friend and ally Charlie Kirk's death?" Thinking that they're going to get some emotional response. And if it was a normal human being with decent amount of empathy, of course they would. But he says, "I'm doing fine." And then he pivots to talking about his renovations of the White House and the and the ballroom and the garden or whatever it is.

>> We're spending for that. Yeah, that's great. >> I mean, it just is that's the joke. And I did think it was that part was funny. Not certainly, you know, there's nothing about Charlie Kirk's death that's funny, but the idea that this person claims to be empathetic and then it's almost like the definition of humor and then displays his total lack of empathy. that was what he was fired for and that's what he was called out cuz it calls out Trump's uh lack of empathy if you want to call it sociopathology that that moment you know certainly I'm not a psychiatrist but that suggests that this isn't somebody who understands basic sympathy and empathy and also that's what he was fired for >> people who don't understand basic listener comprehension I mean like Brendan Carr didn't wait they didn't wait to get something Kimmel might have said that was actually legally actionable They went after a comment >> and they were really pretty certain that the rest of the country was as easily misled by a lie as MAGA was. And after a few days, it became more and more obvious that >> they really screwed up. They tried to fire this guy for something they

couldn't fire him for. They lied about what he actually said. It's there in black and white. Cy, Donald Trump may have just saved Jimmy Kimmel's show. There's a chance in two years that thing might have gone away. Trump just got Jimmy Kimmel the Presidential Medal of Freedom. Trump just got this show into the Library of Congress. And satire, as you know, is close to my heart. It's always had a special place in our democracy from Mark Twain and George Carlin. I mean, I think you agree with me that protecting satire is not just a First Amendment issue. It's essential to democracy. Do you do you see parallels between this crackdown and other moments in history where government tried to muzzle comedians or entertainers? I I I I know where Gerbles did it a lot, but are there times in America when it's been done? Yeah, I think satire, you know, it's a way of mo one of the most effective ways to respond to authoritarianism. Not to mention, it's why I wanted to do this show with you, the kind of combination of comedy and and serious analysis. I think that's there's a lot of power in that. And early in the republic, and I talk about the year 1798 a lot. Maybe one day I'll

write a book called 1798. Um, it's the most important and underappreciated year in American history. But what's happening is uh satire against John Adams. that's what's triggering it. U mocking the president's son among other things. And then one in particular of the most controversial and sometimes historians cite this as why the uh satire was so violent or horrible. But at one point um Adams is referred to as a hermaphroditical figure. And that's not meant to say that he is you know it's transgender or anything like that.

That's not on the consciousness of people in the >> interex professor. Interex you monster. Let's get our terms right. >> He's saying in particular, you know, that's not the reference. They're saying using that word to say that he's two-faced. >> Exactly. >> And you know that that results in prosecution after prosecution, that kind of criticism, saying basically the president is a hypocrite. Uh and satire of course has has a meaning behind it. It is criticism of the most powerful. Think of Saturday Night Live. Now, this president hates to be criticized and he certainly hates to be mocked. Think of uh Obama's speech mocking him for instance before he'd even decided to run. You could see it in his face, the rage. Uh and yet it is Saturday Night Live all and all the related kind of satire from the late night shows is how we hold presidents to account. We humble them. We show they're not above the law that way as much as courts are refusing to do that. And he wants to shut that down. Make no mistake. And he almost succeeded. Uh, but for the actions, I think of this boycott and Disney's stock

price tanking, they might have succeeded. >> Amen. Um, we have a lot more to cover. Corey, I don't know how your stomach is, but can you handle Pam Bondi and Steven Miller when we come back? >> I'm ready. >> Okay, let's test the limits of hate speech and see if I can contain my own. Back in just a moment on the Oath in the Office. Welcome back to the Oath and the Office podcast. I'm John Fuglesen joined by Professor Corey Brett Schneider. Corey, um, let's talk about hate speech. Uh, bribe me Barbie Pam Bondi, um, who I've never seen a woman beg so publicly to be disbarred. She went on TV and she said, "Uh, hate speech isn't protected by the First Amendment."

Can you set the record straight, sir? Is there any hate speech exception to the First Amendment? I'm looking for asterisks on my copy of the Constitution. >> There definitely is no hate speech exception. And one of our first episodes was about this actually. We talked about the two contrasting ideas. Certainly there are hate speech laws in much of the world, really the rest of the world. Germany, for instance, bans Holocaust denial. We protect it. Uh Germany bans membership in the Nazi party in display of the swastika. We protect uh even evil parties like the Nazi party from existing and evil symbols like the swastika. Um the idea in the United States as opposed to the rest of the world, the rest of the world subscribes to an idea of militant democracy that Nazism was so recent and dangerous that they're not going to take a risk it comes back. They'll try to ban it.

>> You know that that isn't working so well for them. The AFD and other right-wing parties are rising up and and you know that banning things doesn't always make them disappear. But in our country, we take a different approach. We protect the speech, even evil speech, even evil opinions because the idea is that the citizenry uh can handle it through satire, through criticism, through discussion. And so we only have very narrow exceptions to um free speech protections for opinion certainly. Uh they include um incitement, speech directed at imminent lawless action, basically immediate violence that's going to um result. Um they include true threats like you you're protected even in burning a cross for instance on on a field during a rally. The clan for instance can do that as a matter of free speech but you couldn't as an individual approach somebody and burn a cross on their lawn to try to threaten them. Uh so we have these narrow exceptions of true threats and um speech directed at um uh immediate basically uh uh lawless

action, immediate violence. But there is no hate speech exception that that is true in Germany. So, she just was li either lying or so uninformed that it's embarrassing because >> it doesn't matter anymore. >> She's only going to talk to media that's not going to ask follow-up questions. So, she can say whatever she wants to say. The folks at home won't know >> and the FCC won't care if she's using our airwaves to spread. >> Although, this time, you know, speaking on free speech, what worked were that the response from the public, including from people like Tucker Carlson who who came out and said, "No, that's not the law." uh her legal adviserss including conservatives and progressives and that was a good moment too in looking for hope where the world really said who who is this person that doesn't know the most basic thing about our first amendment free speech guarantee >> and it's amazing how gloriously subjective they think it can be I mean you know why why is what one person does hate speech I mean why why is why is someone saying Charlie Kirk didn't fight for the actual teachings of Jesus and

said a lot of racist crap That's hate speech. But our buddy Kilme can go on Fox and Friends and say that we should murder all the homeless in America, including thousands of homeless vets, and that's not hate speech. It's it's it's a joke. But why does this myth persist, Corey, that hate speech is somehow categorically unprotected? I mean, what's the danger of public officials spreading this kind of misinformation? Well, I I think you you you started to really get to it, which is that, you know, if you have hate speech restrictions, first of all, the reason why a lot of conservative pundits turned on her and said there said the truth, which is that there is no hate speech exception to the first amendment is because they full well know that if there were such laws and they were laid out, for instance, in the way that Germany does, they would be subject to them. Not wouldn't be the left. I mean, it would be >> Newsmax would Newsmax. had determined speech laws. It's not going to be the left. It's going to be, you know, th those on the right and extreme right.

And um yes, you saw a genocidal uh call to kill all homeless people on Fox News by this out of control pundit who still wasn't fired. Uh not only would he be fired in Germany, he would be prosecuted likely for uh language like that. And um uh to to the Yes, I think it was genocidal. Let's kill them all with nonvoluntary lethal injection was how he put it. >> But again, it shows it shows that they don't mean anything they say and they believe in nothing but their own power because they weren't interested in Kilme's truly hateful, evil, actionable comments because they couldn't use that for anything.

>> Yeah. And it goes back to our discussion of of Kirk's killer. They couldn't care less whether he actually was identified with a a left-wing group or not. They're just motivated in their reasoning to try to claim that. And now, you know what she's doing is something similar. She's like, I want to put these people in prison. I'll just look for a category that sounds like the law and I'll use it to put them in prison. And that's what she did. She literally made it up this hate speech exception and was willing to go with some non-existent legal idea in the United States to attack her opponents. It had nothing to do with hate or hate speech. It had to do with I want to put people in prison that I don't like. And that's, you know, frightening that that's where we are.

>> But it's always a distraction because we can't talk about the guns. We can't talk about the easy access emotionally unstable 20some males, white males, have to products designed to kill lots of people really fast. Again, this this guy in in Utah didn't use an AR-15. But what have we seen, Cory, after Dylan Roof shoots up a bunch of people with an AR-15, emotionally disturbed, white 20some, they make it all about the Confederate flag. This guy, this guy in in in Vegas shoots up 60 white folks at a country music concert. We make it about bump stocks. Now, a year ago, you got this Republican kid with a Republican gun taking a shot at Donald Trump in Pennsylvania. And they made it all about, oh, the left, the hateful rhetoric of the left. And now, another Republican kid shoots at another Republican, and they try to make it about the the left again, the irritating woke people who keep fighting for gun control. It's the gun control people's fault that this kid easily had a weapon.

I mean, I'm trying to think, Cory, we discussed this on SiriusXM, but other examples where courts have explicitly upheld even hateful or offensive speech under the First Amendment. I I I think Larry Flint first of all, but there's other cases where this has happened. >> Yes. I mean, the probably the two most important uh uh involved speech of the of the extreme right. And it was the case for much of American history in the in the early 20th century first of first first and foremost that much of the speech of the left of communists and anarchists was shut down. But that started to change partly. People think I say this because I teach at Brown, but there was a Brown professor who taught First Amendment, taught the same class as I did, who was the most influential person on uh American juristprudence and his his work mattered. He was a critic of the red scare of the prosecutions of the left named Alexander Mikkel John. He gave a simple way to understand why the law needed to protect all opinions and with only these narrow exceptions. He

said imagine that we're all living in a New England town meeting and in a democracy everybody's allowed to speak and most importantly not to just say hear your own voice but to hear the voice of others to see what you really think as a voter. And he said imagine the moderator sort to pick and choose who got to speak. say you we're going to build a bridge on north side of town or south side of town. That's the question before the meeting. And he's like, I don't like the north side of town idea. I'm not going to allow that. That would be a shutdown of democracy. And what he shows, and it's so relevant to this moment, is that if government is allowed to pick and choose the views using some abstract category like hate, it is a shutdown of democracy. And that is what they're trying to do to shut down opponents. So the cases are um uh one is called Brandenburgg versus Ohio. and it concerns the clan and whether or not they're allowed to have a rally. And what the court's very careful to say is this rally wasn't going to spark a riot.

It would be one thing if they were rallying in a way that was going to result in immediate death. And it's only speech that's going to result in in um uh that's directed at imminent lawless action. That's the language of the court in this very important case, Brandenburg, probably the most important of the 20th century. uh to show when there's an exception and absent that all opinions are protected. Another case about cross burning uh which I was alluding to before Virginia versus black distinguishes between a a cross burned part of a clan rally an evil idea opposed to the equal protection clause but one that's protected under the first amendment as opposed to a cross burning in retaliation for an argument earlier in a day. A direct threat. Direct threats aren't protected, but these generalized expressions are. That's our very careful way of protecting all opinions. Did Bondi know anything? You know, all listeners who just heard me say that, you know, way more than our attorney general, who's just making it up.

>> Well, also, our attorney general wasn't hired to enforce the law. She was hired to protect the man who bribed her to drop an investigation into his scam online university. She was mentioning that she's hired to run interference and to be Donald Trump's personal lawyer and to protect him with the DOJ. I mean, Cy, when Ken Burns makes the documentary about this, it's going to be 700 hours long. Go ahead. >> And one of the documents will be his truth social post which was saying, "Come on, Pam. I mean, and you know, there's speculation that he meant to send it to her as a direct message, but he's so incompetent that he just posted it publicly and then my understanding is they deleted it." But what he says in that post is basically, "Come on, Pam, get to work. I want you to go after my opponents."

>> Can you believe it? >> Including the attorney general of New York. >> And he was too dumb to send it as a DM and just accidentally published it for the entire world to see. I mean, it's a good thing these Democrats are never going to have a truth and reconciliation committee with all the evidence they're being given. Let me just, if your stomach can handle it, let me ask you about the gerbal gerbles. Steven Miller, I call him the gerbal gerbles. Um he gave a speech at this uh political rally that was sold as a funeral and uh I'll repeat it was a a funeral. Um and it was uh really into the broader pattern of authoritarian rhetoric we're gotten used to. He was themes of blood purity, vengeance, enemies of the state. A lot of folks have already done sidebyside comparisons of an actual gerbal speech with Steven Miller. And look, I love America. I think it's great that in this country a young Jewish boy can grow up to be a no feratu Nazi. I think it's fantastic. But from a constitutional perspective, when rhetoric edges toward incitement, toward fascist ideology, anti-democracy,

anti-constitutional protections, where's the line between protected speech and actual threats to democracy? It's not unconstitutional to say we want to destroy the Constitution. >> That's exactly right. And that was part of Micl John's point that even communists who are opposed to the constitution and democracy in the constitutional form that it exists uh it's protected because you have to see even the most harsh criticisms of the United States in order to affirm the constitution of the United States to be in a democracy. And you know what that's true here too. If there were hate speech laws of the ger kind that exists in Germany I would look at Miller's speech that strikes me as almost paradmatically violating the kind of laws against hate speech that they have in contemporary democratic Germany. But in our country just to perfect follow-up conversation uh even Miller's speech is is protected.

That's the irony that if Pam Bondi and her hate speech laws existed, it would be Miller that would be guilty of violating. And yet, it's because we protect all viewpoints that Miller's speech, as really horrible as it was. And it it struck me as not just authoritarian, but uh fascist um that um he he would be shut down, I think, under a serious application of hate speech laws. But that's why Steven Miller is allowed to say whatever he wants when he emerges from his crypt to feed. Uh we got to take another break. Corey, let's talk about Antifa cuz I'm really terrified of these guys. Uh wow. Um as soon as we can find some, I'll be even more scared. Back in a moment for the Oath in the Office. Welcome back to the Oath in the Office. I'm John Fugle saying. Professor Brett Schneider. I want to move on to Trump's new uh completely nonsense, ineffectual do nothing theatrical executive order against Antifa.

You know, no journalist will ever ask, "Are you pro-fascist?" Um, and to me, I'm very fond of telling these people, "I'm anti-fascist and anti violence. Aren't you?" And then watching them squirm because they can't answer. I recommend that and help them out. But, um, here's the question. How can how can executive order against Antifa be constitutional when Antifa is not an organization, has no leaders, and doesn't even have an address? Isn't this just a case of a sad burnedout act playing the state fair, going back into his catalog for his old hits that no one listens to anymore? Antifa, Cory, what is this about? The flag burning thing, I could understand, right? Like that was illegal, but he wants liberals to burn the flag so they can show it on Newsmax and he gets more support. I totally get all of that, but this this means nothing. This does nothing. It's not a real organization.

I mean, is it legal? Is it just a waste of resources? Well, I think, you know, certainly if he acts on it and the the content of what the order is doing certainly is a violation of the First Amendment. That's we really, you know, have so many different stories uh for this week, but they have a common theme, which is that the attempted shutdown of the opposition and the imagined opposition in the case of Antifa, which I'll say a little bit about uh a little more about um is really an attempt to shut down the Democratic party or the opposition that you don't agree with. And they're all a sub subtrifuge for that. Uh, first of all, there's no evidence, and we said this before, that this shooter was involved with any organization of the left, much less something called Antifa, which my understanding is is, you know, at best an extremely loosely organized uh set of uh activists. And so, you know, what's really going on in the executive order? It is part of what he said in the Kirk speech, an attempt to shut down the opposition. You know, maybe one of the things as we look for

hope in the moment is, you know, I I am concerned that we are not just inching towards dictatorship, but that we're we're we're on the borderline of being there. And there might be a moment u in which future historians might look back at what we're facing now and will say, as they do in Chile, that a period of democracy was interrupted by the dictatorship. That doesn't mean we won't recover, but that's what these themes are. I mean, if I had one way of understanding what a dictatorship as opposed to a democracy is, it would be the shutdown of the opposition and the desire to do it. And that's what that's what we're looking at. And this is just another example of it. An executive order at a kind of fictional conspiracy um that there's no evidence of this danger being connected to any violence.

>> So, what does that say? I mean, what does that say about the approach to power besides the fact that they are unmanly, brittle, and weak that they're labeling ideas as enemies of the state. I mean, Corey, it'd be easier to get a directory of the KISS army than members of Antifa. >> Yeah, there is a kind of amorphousness the more that you talk about. We mentioned before the war on terror, we'll have future discussions of it, but you know, as much as al-Qaeda was a real organization, the war on terror was such an amorphous idea that it could be used in ways uh abused in ways uh that shut down constitutional rights. And my worry is yeah and not my worry I'm confident that it's the same idea here. You declare war on some amorphous idea and then that gives you all sorts of license to violate the actual liberties of actual people.

>> But like I I'll get off this in one second, but do executive orders like this don't they undermine constitutional protections for freedom of association or or descent? >> It's just intimidation, right? It is a you know what an executive order is just to break it down is a directive given by the president to his own agencies to act and that's why it's not just a you know silly sentence it's not like a speech it is a directive so the department of justice homeland security all these agencies are seeing this and they're going to start doing things now are they going to do things this is where we start to get into the question of whether it's we've violated the law that are >> targeting people for their opinions I think yes And that's not just a violation, it's almost the paradigm of what it means to violate the First Amendment.

>> So, let me move on then to the Supreme Court's decision allowing Donald Trump to fire Democratic FTC Commissioner Lisa Slaughter. Oh, we've talked a lot about this and the unitary executive theory, but I mean, they're letting him do it. I don't know if they would have let a Democratic president do it to a Republican. What does this ruling mean, professor, for the balance of power and and more importantly for the independence of regulatory agencies? >> Well, I've been predicting that this is going to happen. And now we have on the shadow docket, the emergency docket, an order that basically says we're going to consider getting rid of not just a precedent, but this is equivalent to the reversal of Row versus Wade, a core idea that's been part of American history uh really since the New Deal period. And the idea, and I should say actually it goes back earlier than that, not just the New Deal. It's a long long-standing idea that Congress can protect its own laws by protecting the civil servants charged with carrying it out. And one way that

it's done that is by creating independent agencies. Uh that's a technical term to distinguish them from um uh other agencies that are at the behest and control of the president. What the like the defense department for instance is not an independent agency. But what these special agencies do and the Federal Trade Commission is one of them is Congress insulated them from polit politicization from threatening to fire people. >> The Federal Reserve is another one and she tried to stand up for her her independence and the president resisted and the lower courts what they said which is the law is under a case called Humphrey's executive congress can do this. it can protect civil servants and independent agencies from being fired and and actually the leaders of these agencies in the case of the commissioners. Um and Trump is trying to destroy that. Why? Part of the attempt of an authoritarian takeover is if you have within the government officials who can't be fired, well then that's an impediment to to your authoritarian

agenda. So he's getting rid of it. Now the right thing for the courts to do any normal court would say you can't do that. But this court and you know there is a very conservative movement going back to the 1980s and the me justice department that has wanted the president to have total control over the executive branch and they're about to hand it to him. It is in in a sense giving him uh authoritarian power on a platter behest in the gift of the Supreme Court. >> I mean why Cy why should Americans who don't care don't follow the FDC why should people lean in on this one? I mean, this barely made a ripple in the headlines yesterday with so much going on with Tylenol causes autism now. I don't know if you heard that. Oh boy, the science is coming. But I mean, what is the bigger constitutional principle at stake here? Why should Americans care about the FTC and what's going on?

>> There are more than two million people in the executive branch and many of them, some of them in these independent agencies, but many of them civil servants are protected in various ways from the complete authoritarian control of the president. So the head of these agencies, but also civil servants can only be fired with cause if they fail to carry out the law essentially. Um, and this president doesn't like that. So now he's using this boring case, the FTC case that isn't getting anywhere close to the attention to start to rip into those protections. Eventually his job is, and think about it, total control over more than 2 million people. That is an enormous amount of uh an army. This isn't even counting the military which has commander-in-chief. He controls an enormous army to carry out an authoritarian agenda. And the reason why this should be the front page news story uh and why we've talked about it so much is under this idea called the unitary executive. The president is the only executive branch official with total control over the entire thing. That's

the theory. Flawed in my view. Uh he's about to seize control of of the entire government. Now, the we still have this thing called the Pendleton Act. It protects civil servants from firing at will from being roped into his authoritarian cause, but I think that's next to go. So, Cy, looking at all of this we've been discussing for the pod today. I mean, I mean, we're looking at cracking down on satire or at least pretending to crack down on satire. uh labeling Antifa as an organization even though they don't even have a membership role purging independent regulators.

I think we're way beyond. Do we see a larger authoritarian pattern emerging here at this point? What can ordinary citizens do to resist this larger authoritarian pattern emerging besides buy your books and mine and listen to this show? Well, the first is, you know, not to give up hope. And even if this is a period of time that we will refer to in the in the future as the dictatorship, I think it very well might be. Um, dictatorships are not the end of the story. In Chile, there was a referendum, a movement, the no movement.

I met actually one of the leaders of that movement. Um, gave a lecture at Brown. It was an inspiring moment that I think about often. And even during Pinish's dictatorship, there was a hope of recovery. And Chile did recover. So yes, I'm not hiding from the fact that this is authoritarianism. It is an attempt to shut down the opposition party. It is seasoned control over the entire watch executive more than 2 million people, independent agencies and civil servants. And yet I don't think that it will succeed in the long term that that as my op-ed says that we'll look back on this presidency as akin to Johnson as a a period of authoritarianism that we overcame. So, no, don't lose hope. And look at you have to take the victories, too. And I don't want to hide from the victories we've talked about. The Kimmel victory was huge. Disney was definitely not going to save that show. And this is a major critic of the president. They brought him back and the stock price tanking, the boycott. That was you. That was >> by the way, I'm I'm not sure that Disney didn't want to save him. I mean, Jimmy's been really good to ABC. The upfronts

hosting the Oscars. Like, he knows that broadcast is dying and he has been a warrior for that channel. I mean, much more than Bill Maher ever was. God bless Bill Maher. But like, you know, Jimmy took over Bill's spot when Bill got fired for saying something controversial about the president uh in the case of the Gulf War. So, I mean, I I I do think that Bob Iger >> I don't think Bob Iger wanted this stapled to his resume that he was the Disney guy who oversaw all of this censorship and now it really does seem like he was working the next refs because they're not going to air Kimble's show, but ABC is still going to air it. This is still very much ongoing.

>> Yeah. Well, I'd say what's going on and I I think this cohes with the way you're seeing it is that there there's a battle, you know, and there are forces on both sides. There's Sinclair, which you you know full well Sinclair too well that that that they're, you know, pushing in favor of course and they're saying they're not going to air it. They they would have certainly liked to have gotten rid of Kimmel and affiliates matter to the network. But I also think, and this is what's so scary because it ties into our stories about the law firms, that when you have businesses, including Disney, thinking about mergers and acquisitions that are so in control of the executive branch, Trump could have started to really go after Disney by blocking all sorts of things they wanted to do that needs regulatory approval. So, I'd say it's it's both, you know, and when that's but I think the boycott tilted the balance and the tanking of the stock price. uh and and that's part of what's brought him back. So, so you know, this is an ongoing story and also the fact that he's back this week. We'll see what happens in the future.

>> I just want to thank all of our listeners for staying with us through all of this. What a crazy year to launch a podcast or a book. Uh folks, if you don't subscribe, please do. Please give us a nice review. Please share this podcast and uh and let your people know what we're doing over here. Um and write us your mail. We'll read it. Corey, how do the folks follow you and keep up with your brilliance the other six days of the week? Uh we did uh audience questions last week. If you want to send more in, they were amazing last week. Corey.shinergmail.com. Uh I'm collecting them. Uh you can also um write to me on Blue Sky. Uh my handle is democracyprof and follow me there. We have an oath in the the oath in the office uh YouTube channel. Um and uh if you want to check it out, I've just launched brand new Substack. Um also the oath in the office.

>> Right on. Brilliant. Um, you guys can hear me every night on SiriusXM Progress 127. If you don't have that, we're a free podcast for Tell Me Everything, you can get every day wherever your podcasts are stored. I'm also on Substack. Um, my book is called Separation of Church and Hate. It's a crazy week with a lot of media appearances. But if anyone gets this before the evening of the 25th, I want to let everybody know that I'm doing a big show to launch my book with with the 92nd Street Y, legendary uh venue here in New York City. And the great comedian Christella Alonzo will be interviewing me. Christella is an old friend of mine. I did the Bill of Rights concert with her and Dick Gregory and Lewis Black a couple years back. Her own Netflix special is premiering this week, but she's hopping on a plane to come here and host my event. It's going to be really fun. really funny and you can see it live streaming. If you can't make it to New York City this Thursday night, go to uh 92ny.org and you can buy a ticket to watch the uh the live stream show. I guarantee it'll be fun and I guarantee it'll have

something to offend your racist uncle. Uh professor, thank you so much for classing up this country and for uh the the free constitutional education you give to all of us. Um thank you for what you do. >> Thank you, John. And I'm going to just add one last sentence, which is thank you to all the listeners for the amazing reviews that keep coming in. Somehow we're still at five stars, more than 370 reviews. And on Apple Podcasts alone. So, wherever you get your podcast, whether that's uh Spotify or on Apple or any of the podcast distributors, be sure to hit that subscribe button and that that helps us out and write a review.

>> Brilliant. I want to thank all of you guys. Thank you to Wendy and uh and Ba Wil and everyone else. And I just want to remind you, I'm pretty sure that claiming Tylenol causes optimism, while incredibly stupid, is a lot more fun than having to defend an ongoing cover up for wealthy child rapists. Let's not forget what's going on here. Release the files. I'm John Fugles. Thank you all for joining us on behalf of Professor Brett Schneider on the oath in the office.