 It's Friday, so you know what that means. Time once again for Tuesdays with Cory. Tuesdays with Cory. Cory Brettschneider is a constitutional law professor at Brown. He has a law degree from Stanford, a PhD in political science from Princeton, a master's in philosophy from Cambridge. His book is called When the State Speaks. He's been published in the New York Times and countless law journals. He co-wrote the amicus brief that was referred to by the Fourth Circuit Court last week when it struck down Trump's travel ban. But I think if you ask Cory what he's most proud of, it's that I, David Feldman, gave him my private phone number. The brass ring of academia, David Feldman's landline. Welcome back to the show. And please, you don't need to thank me, Cory. I don't think I have the private landline. I think I have Skype. Well, I'm waving that in front of you. I think that's, I see. That's the incentive. That's the incentive. Ten shows. After ten shows, you get the landline. You get the prefix. You get the first three numbers. But the suffix you got to earn. Now, don't be intimidated by me, Professor. I'm just like everyone else. I put my sweater on one head at a time. Great. I'm happy to be here and I'm not feeling intimidated yet. Is that funny? I put my sweater on one head at a time. Good. I haven't heard that. Sometimes I come up with- I got a Mr. Rogers image, too. You know, he's partying it. The head part. It's a strange image. All right. This is what we're going to talk about today. We are going to talk about federal funding for sanctuary cities. We're going to talk about Kathy Griffin getting fired by CNN and whether or not freedom of speech, the First Amendment protects her right to say things and not get fired by her corporate paymasters. We're going to talk about Jeremy Joseph Christian, who was accused of stabbing to death two men on a train, how he screamed freedom of speech, freedom of speech during his arraignment. We're going to talk about the mayor of Portland wanting to cancel a march against Sharia. We're going to talk about maybe briefly Sharia law. We're going to talk about Attorney General Jeff Sessions releasing his new budget and how it reveals that he's not interested in prosecuting illegal use of force by police. Then we're going to talk about Charlie Chaplin and the travel ban and how it relates to Charlie Chaplin. Professor, the executive order Donald Trump signed, promising to deny federal funding to sanctuary cities. What is a sanctuary city? Can the president deny federal funding or is that the role of Congress? Where are we with that executive order? Thanks for the question. To begin with, your first question, sanctuary cities, David, aren't a technical term and cities don't often use that label to describe themselves. But there are some cities around the country and some localities that have declared that they are not going to cooperate with the federal government in all its demands when it comes to the president's goal of deporting undocumented people who are in the United States. For instance, some localities have said that they won't hold those who were detained, say, on a traffic ticket in order to give ICE enough time to come and deport them. Now, the president, through this executive order, with the support of his Attorney General, have declared that if you are not going to cooperate with the federal government and there are pretty broad plans to deport, to conduct a mass deportation as they put it, then the penalty will be revocation, and they are blunt about this, of a city's entire federal expenditure, the federal funds that go to a city. Now, two localities in California, I believe it's San Francisco and Santa Clara, have brought a lawsuit in the northern district of San Francisco and federal court saying that this is a violation of the 10th Amendment. The 10th Amendment says those powers not granted to the federal government are reserved to the states. And the claim, the lawsuit, is that although you can threaten, sorry, you can revoke specific grants that are tailored to a particular purpose, this blunt force of basically denying the entirety of federal funds to a localities a violation of the 10th Amendment. That's the kind of argument that was pioneered by conservatives in the so-called Rehnquist Revolution or the New Federalist Court of Justice Rehnquist, but it's now being used by progressives, including in California, to fight back against Donald Trump's threat. Is this a separation of powers issue as well? Because it seems to me the Congress controls the purse strings. Don't they determine where the money goes? And I think the lawsuit from what I've seen doesn't focus on separation of powers. I mean, the basic idea is that there have been funds for a variety of purposes that are allocated to the executive branch, which then distributes them. So the way that Trump can get around congressional action in defense of his policy is to use an executive order about his discretionary funds, I guess, in a variety of areas. So that's at least the government's claim. And the focus of the suit is not separation of powers, but the right of the states to resist coercion from the federal government in certain areas. I remember reading about John Ehrlichman before he had a resign from the Nixon administration. He was the domestic advisor. And one of the things, I think it was he, he invented this thing called impounding funds, because they couldn't control Congress's spending so that the executive branch would just impound, right, the spending. Just refuse to spend, basically, right? Refusing to spend. And I believe that was deemed unconstitutional. What about ICE? ICE is part of the immigration department, I believe, and they're running around cities, especially Los Angeles, terrorizing children. They follow school kids home. Yeah, I've seen that story. What in the Constitution prevents a national police force? How big could the FBI, how big could the Secret Service get under Trump administration? And are there constitutional protections? Yeah, I mean, that's a good question. There is, unfortunately, the possibility that he could just build ICE and build the FBI into as large an organization as he wants. And that would give him the ability to potentially conduct even more of these removals. But I think the reality is that local police are closer to the ground. The federal government has to have some basis for detaining people. So you can't just go up to somebody on the street and ask for their papers without some kind of cause. So the localities do things like traffic stops. That's certainly within their portfolio. And that's why cooperation with the localities is so important to the Trump administration and carrying out these deportations. So really, these, in my opinion, local heroes who are standing up to the Attorney General and to the President and saying, we're not going to cooperate are really throwing a wrench into the plans of how to actually carry out these deportations because they're on the ground in a way that ICE is not. But I think the truth is to be blunt in answering your question, there could be a way he can enforce federal immigration law. There are constitutional limits on how you go about that. Certainly do process limits. But the more he expands ICE, the more he can do. But this is an important way to stop him and I think really throws a wrench into those plans, as I said. And it also partly is a way of slowing down these deportations. But it's also sending a message that says, we're not going to stand for this. We also have a constitutional role. It's within the right, certainly, of ICE to deport people who are in the country illegally. But there are a lot of constitutional issues about how the process is conducted. I mean, you have a due process right to not just be suspected of a crime if you've done nothing. And federal education can't just come up to you on the street and demand your papers. Define due process. The Fifth Amendment and the Fourth Amendment give various due process rights. The Fourth Amendment gives a right against search and seizure, for instance. And so what those rights entitle us to is to not just be locked up without a reason. The government needs a reason for doing so. And even for a search, there has to be a reasonable suspicion that you've done something wrong. You can't just be approached on the street. And what you certainly can't do, and the recent cases about Stop and Frist made this clear, is racially profile people in order to determine whether or not you're going to stop them. That's a separate clause, but also that protects us against racial profiling, basically. And I think there's a danger that ICE is doing all those things. Right. That was the Arizona ruling where they said you can't stop somebody because you think they might be an undocumented Mexican. But as I remember, it was nebulous. In the course of an arrest, you can check to see if the person is in this country legally. Well, but here's the question that's raised by this lawsuit. I mean, it brings huge issues. Say that a local police force decides that the federal government is being so aggressive and really using race or using national origin in a way it shouldn't, deporting people who have been in the country for 30 years without reason, failing to recognize the importance of keeping families together. If a locality, and I think this is what's happening in this lawsuit, decides, you know what, the federal government's policy is so troubling constitutionally, that we're just not going to aid them. So we're not going to tell them or we're not going to hold people in order to cooperate. That's the kind of thing that's raised by this suit. I think this case in particular is about holding people in detention in order to keep them for ICE. But I think I would like to see there's no reason why a locality has to share information with the federal government about an arrest, especially in the absence of the conviction. There's no law on the books that forces a local municipality to cooperate with the FBI or ICE. Put it this way, I think that constitutionally, and these are the issues that are now being litigated, so they're complicated and I don't want to claim it's an easy case. But in my opinion, if a locality decided that they did not want to share information about immigration status with ICE, that is their constitutional right to do so under the 10th Amendment. What about a consent decree? I know that the Los Angeles Police Department was operating under a consent decree because the cops couldn't stop beating up African Americans. That's interesting. What is a consent decree? It was, I believe, issued by the Justice Department. What is a consent decree? And doesn't that violate the 10th Amendment? That's a great question. One of the most... Then let's move on. As long as it was a great... That's not all I wanted to hear. You go deep in the weeds, which I love, and ask questions that are challenging. But this one is particularly good not to take away too much. But I often do say that when I am just pausing to think about that. Like when your wife says, do you love me? That's a great question. That's a great question. Really. Okay. We were going to focus. Let's stay focused. Okay. So a consent... It is a great question for real, and here's why. One of the huge objections to what I'm saying, and I think a lot of your listeners, and I think you in earlier conversation raised this, why is this progressive, self-described progressive constitutional scholar saying that we should look at the 10th Amendment, which is after all the way that civil rights laws were resisted under the banner of states' rights in the 1960s? And your question really gets to the heart of that. The 14th Amendment says that no person in any locality can be denied equal protection of the laws. And what that means is that there are just certain rights that, even though the 10th Amendment grants lots of powers to the states, that no state, no locality can deny. I mean, the phrase of the 14th Amendment is no state. So I do think that, yes, there are lots of 10th Amendment rights to resist policies of the federal government. But here's what they really cannot do. They cannot resist civil rights enforcement. And they cannot engage in discrimination, because that itself would be a constitutional violation. So the basic idea is, yes, defer to the states, they have lots of power, and they can resist the federal government. They can't be commandeered except when it comes to rights themselves guaranteed to every individual in the Constitution. And that is the obligation of the federal government to do that. And I don't know if this attorney general will carry out that obligation, but he is obligated to protect the civil rights of every person in this country, regardless of what locality they live in. On previous shows, we've talked about how important the 14th Amendment is, that it should be called something else. What is the 14th Amendment? And why should everybody take the time to read it? It's one of the three amendments, the 13th, 14th, and 15th amendments that were passed after the Civil War to guarantee all people, including formerly enslaved persons, the guarantee of equal protection of the law, and the full rights of the Constitution, including, as I said before, due process. So the 13th abolished slavery, the 14th guarantees equal protection and due process, and the 15th guaranteed tempted to guarantee equal voting rights. There are two executive orders going through the courts. One is the travel ban, which you've been very active with, and we'll get to that in a second. And the other one is sanctuary cities. Sanctuary cities is more than just a municipality's right to stand up to the federal government. It's really about who can be thrown out of America. The travel ban is who can visit, who can get in here, and the sanctuary city executive order is who can be thrown out of this country. Do tourists and undocumented workers have the same rights as American citizens? Does a tourist or an undocumented worker who may be in this country, quote, unquote, illegally, are they entitled to the same due process as I am? And I'm going to assume you're a citizen. I am, yeah. Okay. Please tell me that's a great question. They are you a citizen? I was a little taken back by it's like the kind of thing that in Trump's America, I hope that they don't start, the government doesn't start feeling entitled to ask everyone. The answer to that is that you have lots of rights, even if you're not a citizen. You obviously don't have all of them. So for instance, you don't have the right to vote by definition if you're not a citizen. But it's a mistake that I've heard repeated by tea party types a lot and others to suggest that the Constitution only protects citizens. The 14th amendment, for instance, talks about persons not citizens. And so due processes, I think clearly guaranteed to persons not citizens. And in a case, for instance, about the right of undocumented people in the United States, non-citizens to send their kids to public schools, the Supreme Court made it clear that that that was a basic right. And in general, there are lots of constitutional protections, including Fourth Amendment and due process rights. What is the Fourth Amendment again? The right against illegal searches and seizures. Now what there's not a right to is the right to remain in the country if you're here without proper documentation. And I think that that's a policy matter that should be resolved that we need to really do immigration reform. But yes, ultimately, ICE does have the legal right to remove people from the country. But along the way, I guess is what I'm saying. There are lots of rights, even of certainly non-citizens and even of undocumented people. Is it fair to say that the due process extended to undocumented workers is different than say the due process for American citizens? Correct. Yes, that's right. It's not the same level of protection. So for instance, if you're a citizen, you have a right to never have your citizenship revoked. That's an absolute right under our Constitution. You can't have it revoked as punishment. You can give it up and voluntarily renounce it. But you can't have it taken from you. Now obviously, if you're a non-citizen, you don't have that right. The same is true of forced deportation. You can't be deported if you're an American citizen, but you can be if you're an undocumented person in the country. If you're undocumented and you're rounded up by ICE and you're separated from your children, you're taken to a different type of court. You have a lawyer if you want one, but you're like a hundred miles away. You're being held in usually a private prison and you don't have access to a lawyer usually or a public defender. Well, a lot of the processes regarded as an administrative procedure under our immigration law. And so that's right, there are, as a matter of fact, just fewer protections. Now, I guess sometimes we're talking about what's actually happening and sometimes we're talking about aspirations. I think that the process that we use to remove people from this country lacks a lot of the constitutional and legal protections that it should have. So it shouldn't be a solely administrative procedure. And I think that there are a lot of cases that need to be brought about, as in the travel ban case, it's what's related, equal protection concerns. So if it turns out that ICE is targeting Mexicans, but not lots of other people who are in the country illegally, then that's a constitutional concern. If they're approaching people on the street and without any reasonable suspicion rounding them up, that's a due process concern. And so the ACLU and other organizations like it, I think, are doing lots to stop ICE from violating the Constitution. If you're an undocumented worker and somebody pounds on your door, you have a right to say, show me your warrant. You know, I have to look into that. According to the ACLU, I did look this up. That sounds right for me. Yeah. They have to show you, I believe they have to show you a warrant. I know they have to show you your ID. If you're an undocumented worker and you're injured on the job, do you have access to our courts? Can you sue the slaughterhouse where you work because they're violating labor rules or endangering you? You slip and fall and crack your neck. Can you, as an undocumented worker, sue Hormel? Yes. I mean, there's no requirement in our federal courts that you be a United States citizen in order to bring a lawsuit. So for instance, if you have a contract claim that was executed in the United States, even if you're not a citizen, you certainly have the right to do so. And a lot of labor claims are like that as well. So even people who have been removed, yes, I think to bring lawsuits. If you're a victim of wage, theft, you... I mean, one thing to say about all this is, but part of the problem is that, so yes, you have a right to bring these suits. But people are often afraid to do so because they lack the basic status of being here. And so the lack of security, I think, probably prevents a lot of these lawsuits that should be brought by people who are undocumented. So people like Wilbur Ross, the Commerce Secretary, they're very slippery when it comes to undocumented workers in what they call illegal immigration because they really do want undocumented workers working for them because they're so compliant, they're so frightened. Yeah. I mean, that's the problem with our immigration policy is that we continue to want cheap labor to do jobs that lots of people don't want to do, including picking and farm work. And yet we refuse to extend the rights that should come with the hard labor that these people are putting in. And so that's... I don't know that that's something that could be corrected by courts. It really is the Congress that would need to do something. And unfortunately, there was a time when that was a bipartisan commitment and I just think that's disappeared with the rise of nationalism and in some cases, white nationalism throughout the country. Right. You know, Sonny Bono had a brother named Quibono. And hello? Who benefits? Quibono, right? Doesn't that mean who benefits? I don't. It's a Latin expression. I think it's the use of law. But if you look at who benefits from undocumented workers, it's corporations and how we treat our undocumented workers is how we treat each other. We start torturing overseas and then we bring it here. How we treat the children of undocumented workers is how we eventually treat ourselves. Yeah. And you know, one worry about the... I mean, I love doing the constitutional discussion. You could get a lot of principles. You could get a lot out of that field. But one thing that's worrying about it is that sometimes there are boundaries to the ability to use the Constitution to protect rights. But human rights extend beyond the Constitution. And so that's just frightening when the administration starts to look for these things that they can do that clearly involve human rights violations. That even if they're not constitutional violations are moral wrongs. And so that's why it's so important. And I was just... That was prompted by your comment about torturing abroad. It might be right that you can't bring an Eighth Amendment claim against a president that conducts torture outside the boundaries against non-citizens. There's good argument for why that's not... What is the Eighth Amendment again? It prevents torture, basically, cruel and unusual punishments. And one kind of thing that's raised by your comments is, you know, could somebody outside the country bring an Eighth Amendment claim, bring an action against the federal government to prevent torture? And my point is, you know, there's an argument that you can't. But it's still obviously a human rights violation. So I definitely wouldn't want to, in any of these discussions, suggest that just because the Constitution doesn't protect a right, that it's not an important human right. So people from Breitbart always talk about the natural laws, that there are laws that supersede the Constitution. Are you taking their argument? Are you saying there are natural laws handed down by God or handed down by the United Nations, the one-world government? What do you mean by natural laws? Well, I think I didn't use the phrase natural laws. I use the phrase human rights. And that might sound like natural laws, but they're importantly different. But first of caveat, if it's something that Breitbart said, or usually I'm pretty sure, you know, even without reading that website, I know enough to know that I, that's not for me. So I actually will admit, I've never read The Fountainhead, but I'm sure that I disagree with the author. So going back to the question, though, you know, there are rights that are guaranteed as moral principles throughout the world and that are not just natural or based in reason, they're based in human, are human rights documents that we are parties to. So there are a variety of conventions that extend human rights to all people in the world. And one of those covenants guarantees the rights of people not to be tortured, period. And so even if we're not violating a specific provision, so for instance, the Geneva Convention, some people say, prohibit torture against foreign armies. And one argument that was made is well, Al Qaeda is not a foreign government or foreign army, so torture is okay in that regard. But my point is these kind of broad protections, including the human right to not be tortured, extend to all regardless of which locality or what location you're in. So, you know, the Constitution protects rights, international treaties protect rights, but there also are broad human rights that are protected regardless of what government we're talking about or what location we find ourselves in the world. Great. We should move on because there are other issues that have come up this week. But very quickly, the Sanctuary City Executive Order, where are we on that now? The federal court in San Francisco has said that there is enough concern about the potential violation of the 10th Amendment that they've suspended basically the executive order. So no city can, well, this case is pending, can have its federal funds revoked, even if it's declared to be in violation of that executive order. And like the travel ban, we'll now go to this next step and the Ninth Circuit will hear the case eventually and we'll see if this trial level judge, this district court judge was right. I think he was. I think, you know, look, the thing that is stopping the assault on sanctuary cities, on Muslims through the travel ban, repeatedly have been the federal courts. They have been the heroes in this drama that we've been in over the last few months. And also the people bringing these suits, the ACLU, the local officials in Santa Clara and in San Francisco that brought this suit. So this is a great moment where the district court did the right thing and now we're going to wait to see if it's affirmed by the Ninth Circuit. And eventually it too, this case, might go to the Supreme Court. I think sessions probably will fight any ruling against them in the Ninth Circuit. We were talking about your appearance last week. Some friends and I were talking about you saying or teaching me or whatever, my teaching you, that getting rid of Trump is really a political act. That it's kind of nebulous, although some people disagree, but it's really a political act. The takeaway from last week's session was you have to stay on top of Trump, even if you're not getting rid of him, you're wearing him down. That the purpose of the courts is not just to prosecute and convict and throw the guy out, it's just to use the system to debilitate him. Absolutely. I mean, wow, I couldn't have said that better. That's all you need to say then. Move on. Yeah. I mean, I guess to add to that, the idea is to teach him. And how do you teach somebody like that? You don't just say things to him. He's not going to respond to that. You stop him repeatedly. He wants to do this. No, actually you can't do that. He doesn't understand that the basic role of the office of the presidency is limited. He's not a dictator. He's certainly not a king. That was the idea of the presidency, is to grant some powers to the executive and to make the executive strong but limited. And one thing the executive can't do is violate the free exercise clause or in the case that we're talking in the travel ban case or the case that we're talking about or the establishment clause or in the case that we're talking about involving sanctuary cities, violate the 10th Amendment. Just not allowed to do that. And I don't think he, I'm sure he had never heard of the 10th Amendment before the last couple of months. And now he's learning about it. So that's a good thing. I'm just spitballing an idea about a muscular approach towards fighting Trump. The same way a cat plays with a mouse. Instead of getting rid of Trump, keep him, keep his presidency alive but bat it around for the next three and a half years in a way that says, no, no, you're, you're, look, this mouse is still alive. Look, look, he's still there. But look what we've done to him. This three and a half year process of humiliation and degradation might be more valuable than, hey, there's a smoking gun. Now he's got to go to, maybe we can embrace the idea that Trump always survives, but he always fails. And we're just going to humiliate him and teach him and the citizenry, of course, in the rule of law. Yeah, there was an article, I think it was in the New York Times. I don't want to take credit for this way of phrasing it because it was so good. And the idea was that he is about to, maybe already, but certainly should be put in a kind of receivership where he's there. But, you know, as in bankruptcy, you have a lot of limitations on what you can do. And I like that metaphor. I mean, you know, he's shown himself really hostile to the basic principles of the Constitution. And by the way, you know, over the summer in, during the campaign in July, I wrote a piece called Trump versus the Constitution about this hostility. And I'm not surprised it's come out in the way that he's governed. And so this is just who he is. He doesn't get it. He doesn't care. And he's in his fundamental disposition hostile to the principles of the Constitution. So there's nothing to do if he's not impeached, but to keep him in a kind of receivership. And that's what these federal courts have been doing. But that said, you know, we have to wait and see what happens as we talked about in depth last week with the Russia story and others. So the possibility of impeachment, I think, also has to, has to be there. Yeah, the other problem is he's a mortal threat to the planet. Well, you know, there is no constitutional check on the ability to push the nuclear trigger. And climate change getting out of the Paris Accords. Let me ask you about that. My reading of the Constitution is that only the Senate can approve a treaty. But the Paris Climate Accords that Obama signed on to were not officially a treaty. They were an executive, something, something. Yeah. And you know, during the Obama administration, a lot of conservatives spoke out repeatedly about the worry that the president was doing too much through executive orders and that the constitutional obligation was to make treaties and agreements with other countries involving the Senate. And that executive orders generally weren't a good way to go. That legislation was the appropriate way to go. And, you know, he had reasons for doing what he did that he certainly didn't have a cooperative Congress through much of his time in office. But, you know, the result of that is that now that we've got this president who is in a deep way hostile to the Constitution, he can do reverse a lot of gains through executive order, so including looks like the Paris Agreement. You know, Kathy Griffin was the one who had to apologize this week. Not Donald Trump. Not Donald Trump. Kathy Griffin was fired by CNN this week after she released a photo of her holding the decapitated bloody head of Donald Trump. Probably something she shouldn't have done. But CNN fired her. Now, one of the things you always hear is, well, what about her First Amendment rights? Did CNN violate her First Amendment rights by firing her for something she said or did? And more importantly, did they violate her First Amendment rights for firing her for something she said or did that had nothing to do with CNN? I guess the short answer is no. The First Amendment requires state action. So the first puzzle that we'd have to figure out if she were to claim a free speech violation, a constitutional free speech violation, is what the government action was. And I don't think there was any here. So no, I don't think she's got a First Amendment claim. I mean, she might have a sort of, you know, I don't know, an argument. And some people do say this, that to really have free speech, it's not enough to protect it from government intervention or government abridgment that it has to be free speech has to be protected, you know, in workplace policies, for instance, throughout the workforce. And I guess, you know, the best argument for that is the one that you gave, which is when it comes to saying things that are really completely unrelated to the job, some people say there should be free speech protection. Otherwise, the workforce is really intruding into every aspect of our lives. Now, in her case, I got to say that, you know, she's a spokesman for CNN. She does the New Year's special. So the fact that they'd be concerned that somebody like this had represented herself in a way that was inconsistent with the value of deliberation and reason, and really was outside the bounds, that doesn't, frankly, seem unreasonable to me. So think of Billy Bush, you know, said this stuff with our current president, and he was removed is my understanding from being on air. And, you know, did I think that was an awful decision in the Billy Bush case? I'm probably not. So I don't I'm worried that we, you know, I don't want to temper who are sorry, guide who we defend as a matter of free speech by whether we like their politics in a deep way. It seems to me that what she did is probably pretty equivalent to what Billy Bush did. Let me understand the constitutional guardrails with Kathy Griffin. Yeah, I saw her holding the severed head. And I thought she was guessing I'm Anthony Bourdain's new show that you cook something on CNN. So you're saying that the First Amendment only forbids the government from forbidding speech. Correct. I as a parent can tell my children not to curse. Yes. And they cannot scream First Amendment. That is correct. You can take their allowance away. You can tell them not to do it that you won't take them to an indoor water park. My daughter keeps asking to go to some indoor water park. That's how I mind that it's a governmental limit on what government can do. Pin that thought. Okay. You don't want to go to a water park, do you? Yeah. Right? No. Oh, I'm looking for arguments. There's a new first of all tell your daughter. Yeah. That it is an urban myth that they are able to put a chemical in pools to determine whether or not anybody's been urinating in that. Did you know that? They always say, oh, they have this new chemical. It'll turn the water blue if somebody is urinating. You've heard that, right? Yes. That follows you around. Everybody lives in fear of that. Doesn't exist. Doesn't exist. Don't you think you're obligated, David, to not tell people, though? Because if you advertise that, then you might see an increase. Well, yes, but it's also an argument to tell your kids there's no way to know how much urea is inside a water park. Okay, I'll try it. I'm sure it won't work. Nothing will deter her. She wants to go to Great Wolf Lodge. Now I remembered the name. So we're going to focus today. I know, but just hang on for one second. The way tell her the way to find out if somebody's urinating in the pool. The Canadians have discovered this is measure the amount of artificial sweetener in the pool. Artificial sweetener is not processed by the human body, and it only gets released through urine, and that's how you can measure the amount of urine in a water park by the amount of artificial sweetener. Okay, did I throw you off your game now? We got this and I thought you had nothing to teach me. Now I see. I'm stank corrected. Did I throw you off your game? No, just learning. Okay, taking it all in. All right, but I hope you've lost your train of thought. No, I'm good. No. The first amendment, the point was there's not, well, I can imagine what it was like to teach you in Columbia University. Go ahead. That kid. It's like, you know, who are the great teachers that you had? I'm sure it's like Vandoren, and you like to see Vandoren saying, oh, Feldman kept trying to make this great point about literature. All he wanted to discuss was the urine in the pool. In Dwight Morrow High School, I was the class pundit, not the class clown, the class pundit. Nice. I don't doubt it. Go ahead. All right, the first amendment, go ahead. There's no way you can remember. She's got no case basically on First Amendment grounds. The one kind of odd thing is, I guess it does involve criticism of the president, so if she could show that the president was pressuring CNN, and we have no evidence of that, that's the one thing I could come up with that might make it a First Amendment case. And before we move on to other First Amendment issues, specifically Portland, the government does restrict speech in the workplace. Yes. Oh, it can restrict its own. There's a whole, I mean, part of, in the book, I talk about this case. When the state speaks. Yes, called Kistra. And in Canada, there was a case involving a teacher that was fired for a lesson that was racist. I think it was a math teacher, and it was some racist lesson. But not only was the teacher fired, the teacher was put in prison under their hate speech laws in Canada. In the United States, you certainly couldn't put somebody in prison for teaching a lesson that was like that, that was racist. But what you could do is certainly fire them. And the idea is that, look, the government, in its workplaces, has certain things it's trying to accomplish. So the state is trying to teach the idea of equal protection or the idea of respect regardless of race. And if a teacher is undermining that through their math lesson, they have the ability to fire them. What if it's a problem? But Canada, they go much further that you can go to jail and here rightly, I think you cannot. But that seems right to me that the government can promote its own message. But CNN is not the government. That's right. Yeah. But a similar logic. I mean, the reason why you can't bring a First Amendment case against CNN is because there's no government action and there's no First Amendment right in this country against private entities. If you post something on Facebook that embarrasses your future employer, they can fire you. They can go through your history. There was a comedy writer over at Saturday Night Live who tweeted something and I think it was about Baron Trump. And she got fired this year for tweeting something about Baron Trump. It had nothing to do with the show. Well, who was that? I don't remember her name. I do know that she was then hired by Seth MacFarlane. I believe Seth MacFarlane hired her after she got fired by NBC. But it wasn't an official NBC Twitter account. She said something about Baron Trump being a future serial killer. And it was deemed unacceptable by NBC and Saturday Night Live fired her. It's interesting, though, when Kathy Griffin got fired, one of the reasons was Trump tweeted that Baron saw that photo and started to scream that he thought it was true. So he uses Baron, but we're not allowed to. And if you have a kid who sees that photo and screams, was he screaming out of joy? That's the other the other issue. Let's go back to First Amendment issues. Jeremy Joseph Christian was arraigned right there. That joke. That's why we have the First Amendment. It protects you from Donald Trump coming after you for that joke. It's a good thing. I'm more concerned about somebody else coming after me for what I intimate in my jokes. But have you noticed I haven't brought it up? Very good. I have not mentioned, not once before I have not mentioned it once. Jeremy Joseph Christian was accused of stabbing a deaf two men on a train in Portland after Christian allegedly, allegedly cursed and screamed epithets that I think she was a Muslim woman or she was wearing a head scarf. He has a long history of using the First Amendment to go on alt right chat rooms and say horrible things about Muslims during his arraignment. He screamed free speech America free speech. And now the mayor of Portland is asking the courts to ban an alt right March. I think in June March against Sharia. I think it's been postponed. I think the March against Sharia is going to be held in Seattle. But freedom of speech issues. Are you allowed to be on a train and scream epithets at a Muslim woman without threatening her? No, absolutely not. I mean that's one of the saddest. I mean that partly I wrote this book to give a third vision of free speech which was you know that we should avoid just outlawing all hate speech and also avoid just protecting it that there's this third way of protecting some things that are called hate speech, generalized viewpoints, general expressions of ideas. We should protect them I say but also the government has a role in criticizing them. But we want to be clear on the kind of hate speech that is protected. What's protected is saying something at a rally, writing a book. What is absolutely not protected under our First Amendment jurisprudence is a threat. And going up to somebody and assaulting them with words is not protected. And the court has made that clear about then its fighting words doctrine more recently in a case called Virginia versus Black where it distinguished between burning a cross on a field during a rally, during a clan rally, which is protected the court said because it's the expression of a general viewpoint. And what is not protected which is burning the cross on a lawn of an African American family and retaliation for a fight that had occurred earlier in the day. In that second case the court said look what's going on is the use of words in order to communicate a threat to a particular individual. And in no way does our First Amendment protect that. So in this case the idea that this was free speech that this guy was going up and really committing an assault against somebody was just sitting there on a train is absurd. I mean it is beyond unreasonable to claim that that is about free speech. And it's really as a free speech specialist, it's just one of the deepest insults when people try to claim the mantle of this fundamental right, this essential right to our Democratic Republic and to use it to justify a crime of assault. So no, there is nothing than what that guy is saying that is reasonable. Okay I'm Jeremy Joseph Christian's lawyer. Right. Let's just pretend he was sitting on a train opposite a woman in a headscarf without getting up from his seat, without standing over her. He starts screaming horrible things at her without getting up and threatening her. There was a, he's across, he's on the other side of the train. Is that protected by freedom of speech? If I start screaming but I don't physically threaten them. If I say I'm not going to punch you, I'm not going to hit you, but I think you're blubbity, blubbity, blubbity. Is that protected by freedom of the First Amendment? I mean the question of whether somebody's been threatened isn't whether you use the words like I'm going to come get you or I'm going to punch you. It's whether you're doing something that's a reasonable person would think is threatening. So in the cross burning case that I talked about, I'm sure that the lawyers argued that burning a cross on somebody's lawn is the generalized expression of the idea of white supremacy and that's protected. But what the court said is give me a break. Burning it on somebody's lawn is directed at them with the message underneath implied very clearly that I'm going to come get you. So the words that you use I think don't matter. You can engage in threatening behavior without using the words directly that I'm going to come get you. So yeah, I think even in the cases that you're describing that that sounds like threatening behavior certainly. Especially remember it's a closed in train car which is really potentially very dangerous and threatening situation can't just get up and leave. The mayor of Portland Ted Wheeler went to the courts to block a permit for a march against Sharia. He said it wasn't the right time. We have a freedom to assemble. Is that the First Amendment freedom to assemble? There is a freedom of assembly in the First Amendment and related to that certainly very closely is the freedom of speech. But you can't have a spontaneous rally. I can't decide. I can't do a flash mob thing on my podcast and say everybody show up outside Corey Brettschneider's house to protest water parks. The courts have said that localities municipalities governments can regulate the time place and manner of assembly and speech. You know for good reason that there's potentially danger in these things they have to be able to be prepared to have a police presence to protect people at the rally. But that's very different than what's potentially an issue in the Portland case which is discrimination in who gets the permit by opinion or viewpoint. That you can't do and the government is certainly prohibited from engaging in viewpoint discrimination. So the police are well within their rights to break up a spontaneous rally or a mob. In other words if you're gathering outside OJ's house right you know he's he's driving home AC Callens is driving him home and everybody's gathered around the Bretton Wood estate. The police have every right to say break it up go home. You need a permit. We'd have to look at the case but in general for mass rallies permitting is a constitutional requirement that a municipality can have. They can demand for a mass rally that a group has a permit and it can disperse they can disperse a crowd that refuses to go through that process. But the you know the process of permitting can't just be an excuse for keeping people from conducting protests and that the permit process itself and the denial of permits is something that the courts can review and will review looking at the First Amendment free speech and freedom of assembly protections. Now that's not to say that the police can always just disperse you so there's an interesting case about sidewalks and whether or not you can gather on the sidewalk outside an abortion clinic and whether or not you know some unpermitted protesting at these clinics are allowed. Now that's a kind of hard case because you could see on the one hand the argument for why you don't want to have people feel harassed and on the other side people are saying the protesters are saying this isn't about harassment it's about our general views about abortion and so you know cases like that the argument anyway of the protesters is when it comes to small crowds really isn't a need for a permit for picketing or for small protests. So you know the permit rationale is about stability and danger and I think in the absence of that it's not clear to me that you always need a permit for okay to have a First Amendment right. We only have six minutes left okay this was fantastic and one of the reasons it was fantastic is I actually prepared you did yeah and I'm not having a conversation with you but it was it was presumptuous the last time we did this I was a little arrogant. I like that I like conversation. You are a citizen and I am a citizen. No I'm not going to take up your time and my listener's time without proper preparation okay especially since yeah and I was winging it and you could tell if you go back and listen to our last session you want to talk about Charlie Chaplin exactly you recently wrote the travel ban appeals the recent travel ban appeals the acting solicitor general relied largely on a case called climb danced v mandel to the showrunner for Veep mandel to argue that those outside the country are not protected by the establishment clause so let me let me read that again you recently wrote in the recent travel ban appeals the acting solicitor general relied largely on a case called climb danced v mandel to argue that those outside the country are not protected by the establishment clause so I want to get to Charlie Chaplin in a second because he was banned from coming into the country he was never a united states citizen what is a solicitor general we've been through this who is solicitor general Jeffrey wall I think it's important for all of us to know who these players are yes what is the establishment clause the animus doctrine the rationality doctrine and can you the big question is you're not allowed to remove or ban somebody from this country based on their religion are you allowed to ban them or remove them based on their ideology which I believe is why Charlie Chaplin who is not an American citizen believe that's why he wasn't allowed back in the country in 1952 yeah I mean I should say I certainly think you can't ban somebody because of their religion and that's why the travel ban is unconstitutional and we've been talking about this for a long time and that was just my opinion I guess before but now that opinion has been affirmed by the fourth and ninth circuit court of appeals so we could lose that case still in the supreme court but I am pretty firm ground to think that they're going to agree with the fourth and ninth circuit court that you cannot ban somebody because of their religion and that's what the executive order does now here's a counter argument because the case isn't over and donald trump has a very good lawyer the the government and in this case the government is really trump because it's about the the federal government's executive order has a lawyer that argues on behalf of the president before the supreme court it's a special office called the office of the solicitor general its former solicitor generals are often I would say probably always major figures in the field of constitutional law so justice kagan was formally the solicitor general of the united states in the obama administration before she was appointed to the bench and what this solicitor general argued that's who the person is that you mentioned is uh what did you say he is he's the acting solicitor general now he's the act yes right yeah in other words he's a trained fespian he isn't acting sorry right I apologize yeah do I have to laugh at those jokes no no and by the way it's a part of the job description this is why you have no idea how much delight I take in making horrible jokes around go ahead go ahead I mean but I could have done that you're you won several Emmys yeah well okay so the solicitor general has a a very strong argument on his case I mean I don't it's a losing argument but it's a strong argument and that's that there's a case called Mandel which you mentioned and what Mandel was about was the facts were there was a Marxist professor I think who wanted to come into the country and non-citizen and was barred from doing so because of his Marxism because of the beliefs now common sense would say well wait a second the first amendment protects against discrimination based on viewpoint but what the government said defending this exclusion was that's not true for people outside the country when it comes to the power of the president he or she has increased powers in regard to those who are involved in immigration matters non-citizens wanting to come in and so the supreme court actually found that barring the professor because of the ideology because of the Marxism was constitutional because of these special powers of the president now in the extreme what some defenders of presidential power have argued is that the reason why Mandel came out the way it did by the professor could be barred is because the president has absolute or plenary power in matters of immigration now what that would mean what would be coming back to our case is that the president can exclude people based on whatever he or she wants so if the president wants to exclude people because of their race that's fine because of their national origin that's fine or because of religion that's fine now what the courts have clarified is even though Mandel came down the way it did because it was about ideology that's different from religion or race and discriminating based on somebody's ideology might be reasonable but what's not reasonable is basically hating somebody for their religion or their ethnicity a more precise way to put it is that you can't be prejudice in your executive orders or in your immigration decisions even though you might discriminate based on ideology and I think I've read of a climate change proponent a professor who was saying the climate change is real I think I read recently that he was supposed to speak somewhere in Texas and the immigration department kind of said get out of the country well under Mandel it looks like that's constitutional but maybe it's time to rethink Mandel too you know I think if we really are proponents of the idea that we should be able to hear all viewpoints that maybe that should mean that first amendment protections extend to matters of immigration too now I don't want to claim the courts have said that they have not they've said the opposite and I do think it for the purpose of argument it's important to see the common sense that says you know what ideology that's one kind of hard case but an easy case is don't engage in prejudice when you're picking who comes in who comes out because that demeans us as a American people and it also what I'm trying to say in this kind of complicated short piece on the take care blog is that the government always has to act rationally even when we're deferring to presidents and matters that they have lots of control in like immigration and what prejudice is is an irrational action and government action that's irrational never has a place in our constitutional order that's not just something that I'm saying it's I think part of the well not I think it is part of the holding in the kumi that animus fails even the lowest level of review and in a case about gay rights which we've mentioned called roemer the court says the same thing that hatred or animus or prejudice is never a rational basis or legitimate basis for government action under our constitution great kory bretchnider professor kory bretchnider is a constitutional law professor his book is when the state speaks and tell me about this website that you write on it's pretty great it's written for the layman I recommend it to all your readers who are interested in reading about the legal issues concerning trump it's called take care blog it's just a great collection of constitutional lawyers almost entirely writing about the constitutional violations of donald trump and his administration it's take care blog dot com and the articles are short which for me is great yeah and I should say too it's uh the publisher and owner is uh joshua matt who was our attorney in the travel ban case and drafted that brief maybe i'll write for good i truly love it actually no no i'm just saying no no no no no this was fantastic thank you thank you pleasure stay on the line for one second