 Time now for Tuesdays with Cory, but it's Friday, so it's Friday's with Professor Cory, Cory. Hello, Professor. This sort of rhymes with Mori, I guess. It took me a while. You're a hit on the David Feldman show. Terrific. Glad to hear it. Yeah, so thank you for doing this. Not only are you a hit with the listeners, but you're a big hit with my mother, because now she can nag me about my homework again. All right, exactly. You're about 50%, I think. You did the first one perfect, and then the second, you set the pattern before when you said familiar. Yeah, well, Professor Cory Bretschneider joins us. You are leaving tomorrow for London. I want to talk about that in a second, and we're going to talk about the travel ban, but I got some insight into why Donald Trump is so dangerous as we were gearing up for today's episode. You are not letting go of the travel ban. You and Professor Tribe and all the other big names in law are writing briefs and fighting the travel ban. Last week, I had Howie Klein on the show. He writes the Down with Tyranny blog, and he won't let up on ICE and how they're separating families in Los Angeles. And I got insight into my own Trump fatigue, and it's very dangerous. I said to myself as he was talking about ICE, well, we've already been over this. We've already covered that. Anything else? What's fresh? What's new? Yeah. And that's the problem. You will not let up on the travel ban, but because I'm a gadfly, I go, yeah, what else you got? And you're saying, no, it's kind of like, you know, Korematsu, the rounding up of the Japanese during World War II. We need to stay on top of this. I know, but I have listeners, and we want to keep things fresh and new. With that whole rounding up of the Japanese thing, that was so last week. The Constitution that was so last month. You're not letting up on this. Yeah, I think it's a good insight if I'm pitching news outlets, their sort of reaction sometimes is exactly that. Like, look, you've already written about that. Let's write about something else. And I hear it, I'm bringing it up with friends all the time, and especially non-lawyers want to know, well, what else can we do? But I think the thing to see is that this isn't just any proposal, and now we can move on. And first of all, it's an ongoing thing. He's still defending it. In fact, he defended it in court yesterday in the Fourth Circuit in Richmond, Virginia. But it also, I think, is important because it stands for something. I mean, it was one of his main promises in the campaign was to exclude Muslims from the country to have a Muslim ban. And then he tried to do it. And this is historic. I mean, I keep trying to explain this to people. It's not just any example or just a sort of one constitutional thing that he tried to do. It's that he did something which was basically tried to revive 19th century racism. There was a form of what he did in the 19th century in exclusion of Chinese immigrants. But, you know, we haven't seen anything this blatantly, I'll just say racist or animus-based in years and years. And so I think fighting it and more than that, making the lesson of its unconstitutionality public so that everyone can hear it and understand it in a deep way, that's the thing that has to be done. He has to be taught a public lesson in what the Constitution means. Wow. Wow. Thank you. Thank you for saying that. The problem you're up against, I'm up against, and the country's up against is, I hate to reuse the word fatigue, but look at the health care. Look at the health care bill. We all celebrated about a month ago because it was rejected. But they keep coming back. That's right. They keep coming back. We all thought, okay, that's taken care of. If you go back and look at the coverage of the defeat of Trumpcare the first time, we had drawn a line in the sand. We stood up to him and now he's weak and then a month later, he's back. It's constant vigilance. Yeah. I just think what you're saying is so important because I hear about the fatigue from friends and from family, and I see it too just in talking to editors and elsewhere. But you know, this isn't a fight that you just sort of win. I mean, there was an initial excitement, I think, when people started coming into the streets after his election. But the way that he'll be defeated, especially if he keeps up with this stuff is not by one March. It's got to be a constant, you said it perfectly, a constant vigilance. And it's not always going to be interesting. At points, there might be nuance and detail that people with a policy or legal background might find interesting, but some people won't. But we have to find a way. I mean, one way is through comedy or through, I don't know, the examples of the people who are affected. But to make clear that this isn't something that we can just forget about, we have to have an ongoing battle and discussion about it. Yeah. And I'm mad at myself because listeners to this show know that I got fatigued, that I got this surge of energy. And then something happened about, I don't know, a month ago, where I thought, I just can't keep hearing the same lies over and over again. And then, as I'm talking to you and other people, well, that's what they want. They want that it's just if you keep repeating the same lie over and over again, we don't necessarily believe it. We just say enough. Okay, fine. Just leave me alone. Yeah. Or it's exhausting or I don't want to be political anymore. I want to go back to my own life. You know, SNL, did you see the SNL skit about the Handmaid's Tale? Oh, yeah. Handmaid's Tale. You didn't see SNL, I take it. I didn't see it. No. They had a really brilliant skit about what you're talking about. The idea is that it's the Handmaid's Tale. It's this authoritarian world. This dictator is taken over and everyone is ruled by this sort of crude religiosity. And the Handmaids are the subservient class who have to have the children of unfertil couples. I mean, it's the worst dystopia you can imagine. And the idea of the SNL skit is that they're in the middle of the Handmaid's Tale and they're acting just as they do in the real show and in the book. And all of a sudden, these bros turn out who haven't really noticed what's going on with the whole dictatorship thing. And they sort of heard about it and they meant to go to the protest, but they're just kind of, I'm not doing it justice. The way it's done is these guys are just oblivious. The idea is it's boring to think about this authoritarian thing and if it's not affecting them, they're not Handmaids. So what do they have to think about it for? And yet this dystopia is taken over. And I don't know. I thought it was a brilliant skit because it gets to this idea that, look, it is exhausting and it is easier to just ignore what's happening, especially if it's not my loved one that wants to come into the country and are banned because they're from one of these countries. Not only the travel ban, but the removal of people. Oh, absolutely. Yeah. I mean, the case we haven't talked about that maybe you were talking about when you talked about with ICE, and maybe we mentioned it. And it's as significant as there was a district court judge in the Northern District in San Francisco who struck down the executive order about sanctuary cities. That was a major development. Trump had been threatening cities that were refusing to cooperate with ICE with the removal of all of their federal funds. And Santa Clara in San Francisco, I think is the second city, got together and said, you know what? This is unconstitutional. We're going to fight it. And they won, just like they did in the travel ban case. To me, that's just as important as this other case. It's using the tools of federalism and fighting back against the due process violations that are happening with all of this removal with this sort of really innovative argument that conservatives had pioneered that you can't bully people basically with the threat of the loss of all federal funds. So that's another one that unfortunately isn't in the news as much, but it's as important in fighting. Yeah, let's review that for a second. Trump signed an executive order threatening to defund any sanctuary city. Correct. The cities of Santa Clara and the city, which I think is San Francisco, challenge that and the federal district court. Is that the fourth or the ninth? That's the ninth. Well, the district court is the lower, it's within the ninth circuit. It's the trial level court. And eventually, the appeal, I think, will be heard by the Ninth Circuit Court of Appeals. And that's a federal court. It's in federal court. Exactly. Right. And that's a very liberal. That's a notoriously liberal court, right? It's mixed. There are conservatives and liberals, but, yes, they have done in the travel ban case in here. I don't know. In these cases, I really am hesitant to say liberal or conservative because the argument that actually Santa Clara is making is a very conservative, right? It was pioneered by people who believed in the new federalism, Justice Rehnquist. And so they're using this conservative argument against Trump. It's an example, I think, of why his anti-constitutional policies aren't just normal, liberal or conservative divide. They're anti-constitutional. And I don't know who the judge was that struck this down, but it could be a conservative or a liberal judge because there's nothing in the argument that is necessarily liberal. I think it's a conservative argument about Sanctuary's. What speeds up a case like this? The Solicitor General is appointed by Trump, and he'll represent the Trump administration in the court. It depends. I mean, sometimes he'll do it. The acting Solicitor General did the case yesterday in the Fourth Circuit, or he might have somebody who's a lower-level attorney in that office do it. And what determines the speed? It's up to the courts. I mean, in the Sanctuary City case, my understanding is that the Trump administration said, you know what? This is not that important and there's no important matter before us, but the Santa Clara felt like their funds were truly being threatened and the court agreed and was willing to take the case and to stay the executive order. Is that the only Sanctuary City case that we should be keeping an eye on? Well, it's significant because like the travel ban, what this judge did is he didn't just basically postpone or suspend the executive order for the purpose of his district. He did it nationwide. So it's just like the travel ban case where a federal judge has said, you know what? This is so worrying and there's a substantial likelihood that it's unconstitutional such that actually I'm going to keep them from doing this anywhere. So no, right now at least, no locality is at risk of having their funds revoked in retaliation for there being a Sanctuary City, at least while the case is pending. To use this as a teaching moment, is this a 10th Amendment issue? Yes, exactly. Yeah, that's right. Great, Dave. I love it. Yeah, the argument is it's a kind of a hybrid but the fundamental argument is that the 10th Amendment of the Constitution reserves powers to the states and so if something is enumerated in the Constitution, a power of the federal government is enumerated, then Congress can enact laws consistent with it or there might be an executive order consistent with that power. But if there's no federal power then the 10th Amendment tells us that the power is reserved to the states. Now there is a spending power in the United States Constitution that gives the Congress the ability to spend money and what the court has said is they can tie that money to certain things if it's connected to the purpose of a grant if there's a clear... I'm confused, can you explain that to me? What do you mean by that? The spending. So the kind of framework that you identified says we have to find a power of the federal government to act and in the absence of such a power, the states have the power to act. So now what do we do in this case? The question is can the federal government, does the federal government have the power to use the threat of revoking all of a sanctuary city's money in order to get it to comply? Basically what's at issue to get to the details is they want to force sanctuary cities to hold people who are arrested for a variety of crimes including misdemeanors until ICE has time to come and get them and pick them up. And some of these cities are saying you know what we're not going to do that. So now here's the constitutional question. Can the federal government revoke the federal funds? All the federal funds of a sanctuary city that refuses to hold these people who are arrested to hold them for ICE? And what this judge said is no they can't because there is no power of the federal government to use the spending clause that way. Does that make sense? Yeah let me unpack. Is there a clause in the constitution that allows the federal government to tax? Which amendment was it that gave us the income tax? I mean that was under Woodrow Wilson so there wasn't an income tax in the Constitution. So taxation for the federal government is that enshrined in the Constitution? There is a power to tax and a power to spend partly as a result of amendment and interpretation over time. Certainly there is a legal federal income tax but there also is a power to spend money. There is a part of the original Constitution that talks about the ability of the Congress not only to raise revenue but also to spend it. Why would there be a question as to whether or not the federal government could spend money in the state? That's a great question. And you might say these sanctuary cities can do what they want but they don't have a right to receive the money from the federal government right? It's their their power to spend or not spend. That's the argument on the other side from this judge. It reminds me of the Obamacare ruling in that Roberts ruled that the states cannot be forced to take funding for Medicaid. Exactly. It's the same kind of... I mean that's the irony right that that ruling which was upsetting to many liberals is now being used to exactly that logic that you just identified. Thanks very cities. And I cannot fathom why anybody would resist being forced to take money. Right. And are you saying our founding fathers right had insight into this that they knew that if the federal government forced money on the states it would give the federal government too much power? Is that enshrined in the Constitution? But you know the way this works is that there are clauses that give us just a few words. And then over time what courts have to do is grapple with these really hard issues. So I don't think that the founders could have imagined Obamacare or a sanctuary city or any of these issues that we're talking about. What they gave us were little bits of tax that do two things. On the one side they give a power to the federal government to spend money. On the other hand they reserve powers not granted to the federal government to the states. That's the tenth amendment. And now what we're doing is using these very real world contemporary issues to grapple with the question of well which is it? Is it the power of the federal government to do this stuff? To revoke the money? Or is it the power of the states in this case the sanctuary cities to resist? And that's what we're trying to figure out. I don't know that the founders knew anything about this but over time we've got principles and cases that can serve as fives. They did have a fear of debt. As I recall the reason Washington DC is where it is is because Hamilton worked out a deal where the federal government would assume the debt from the Revolutionary War. Jefferson was against the federal government assuming a national debt. And I never understood that because I was thinking well if the federal government wants to take care of my credit card why would I be upset about that? Right. Another thing that they gave us to me the thing that really gives us the most clue is you know why did they do this? Why did they set the system up this way? Why would they have limited power of the federal government reserve these powers to the states? I mean people's eyes are probably glazing over at this point because you know what okay well states writes federal government what's the point of all this? And to me there is a very simple point. They were worried that the federal government would act tyrannically and that they would come down to the states and force them to violate people's rights. They would take them over or create a national police force or do stuff that violated individual rights and that's why I think they created or insulated some power of the states. So to me regardless of what you might think about the Obamacare ruling this case this instance of resistance to ICE really coming in and grabbing people and throwing them out of the country that's and that's the kind of thing that the federal government was worried about and what the court is doing is vindicating the idea that the founders had which is you know what the federal government can't do anything it wants it has to be restricted both in its set of powers and especially when it comes to violating individual rights. So if I'm the mayor of San Francisco right and I legalize marijuana right and the DEA the federal DEA comes in and starts kicking open the doors of people yeah this is what's going on right now. We better be prepared for it that's the other really important 10th amendment slash rights issue there was a case called rache where the court said something that surprised a lot of people which is that basically the question was whether or not the commerce clause a different power gave the federal government the ability to enforce drug laws even when states like Rhode Island or Colorado and you take your pick were legalizing the growing and use of marijuana and the court in that case reaffirmed the the legality of the drug laws but these are issues that are not going to go away for exactly the reasons you said okay I shook things up and I apologize and I want to I want to rein it all in because yeah the issues that we're talking about are the travel ban yeah which is separate from the 10th amendment that's more of a first amendment issue yes in large part that's right and a 14th amendment equal protection an equal protection the issue of sanctuary cities the idea that ice can't round up undocumented workers if the mayor of a city says or the city council says no that is a primarily a 10th amendment issue that has some similarities to the 10th amendment issue of medical marijuana being legalized in states even though it's against the law correct you're batting 100 percent terrific and then the 10th amendment issue also of forcing states to accept Medicaid funding in Obamacare that's a 10th amendment issue yes correct I think as we move forward what will help me and the listeners is to hang the constitution and the specific amendments or clauses onto the various issues and I apologize my mind started to race and then it went off to what you were doing actually was a natural but also a kind of brilliant thing which is you were just from your own knowledge starting to resort all these different cases that you hadn't realized were connected and once you start to do what you're doing I mean you really are learning how to do constitutional law that's the main idea is that we that kind of organization that you just did for everyone is what defines the field and that's you know that's doing it that's doing the subject before we started we were talking about the travel ban and I guess the solicitor general in trying to uphold the travel ban cited some nasty supreme court rulings what were they yeah there was a controversy about a case involving segregation and public pools that I haven't seen this so I shouldn't say that I saw him do it but I saw an article saying that it was cited at one point approvingly I can't speak to whether that's right I did send you that article yeah I looked at it it was shocking so I'll cite it yeah because I don't want you to get into any trouble what I read is that there was a public pool in the south that banned african americans and in 1971 they decided instead of integrating the pool they would just shut it down and the supreme court ruled that it's okay for a city to close a public pool if they don't want it to be integrated and I believe the trump administration is citing that to justify yeah I just I haven't seen that part of the brief so I just didn't want to speak to it but certainly that would be a bad case to cite approvingly the terrible decision and so when ran paul said that he would have voted against the civil rights acts of 64 65 because the supreme court should not force woolworth to serve black people that would be a similar tenth amendment issue right yes I mean I remember that well when he he flirted with that position um there's a case it's commonly called ollie's barbecue about the constitutionality and a related one about heart of atlanta motel that are about the question of whether or not the civil rights acts uh act of 1964 are constitutionally inactive and there's a complicated history there where the court said eventually it was constitutional but not under the equal protection clause it was a matter of commerce because there was an effect of this hotel and restaurant and interstate commerce that that's what gave the congress the power to enact the legislation and ran paul was flirting with the idea that that might be wrong I can't remember I think he repudiated those comments eventually but he certainly was was flirting with it I think it's fair to say let's go back to the travel ban where are we with this now I just need one second David I gotta plug the computer and it's sorry it's running low on energy okay by the way I'm keeping all this in okay it's a fifth amendment lesson yeah okay you ready yes we were talking about the travel ban yeah where are we with this then the travel ban is now I mean as we said in the beginning this is a slow process the fourth circuit court of appeals heard oral argument yesterday in richmond virginia and they heard arguments from the solicitor general defending the ban on the grounds that it's really not about muslims or antipathy or animus towards muslims as I contend that my colleagues do and the brief that we've written and as I have in an earlier article in politico he says it's just about security and they're using the same countries that obama had identified as dangerous and the response to that that we've offered is you know look at the evidence the evidence is that there is an intentional animus towards muslims that's really at the heart of the ban that's revealed not just in the campaign statements but in ongoing statements and the judges on the panel it was the entire set of judges on the fourth circuit engaged in both lawyers yesterday and kormatsu right now is precedent that can be cited to justify banning muslims correct it's just like that case that you mentioned about the pool it's a wrongly decided case that has never been formally corrected that could be decided but citing it is a bad idea yeah I mean because no one thinks I haven't heard I don't want to overstate it but are there any serious scholars that think it was rightly decided I haven't heard from any I mean maybe there are it was a disaster of a case I mean clearly clearly unconstitutional and a bad moment for the court so to bring it up in any other context that doesn't repeat repudiated I find really frankly disturbing not not just a mistake let me ask you about intent and and its relationship to the first amendment one of the things that I find interesting in talking to you and this is what I've learned is how important languages in establishing law the kumi which by the way I was very happy to see rightly featured as the main case I'd say that that people focused on so the listeners that went and read the kumi you with your discussion and I mean in a way you know you might thought like this is really have anything to do with the travel ban and yesterday was clear that it's it's the central issue really in the case well what I found interesting about this and I had no idea until I let's say skimmed the lakumi decision which was Hialeah in Florida wanted to ban the practice of sacrificing animals the century religion sacrifices chickens and pigeons and animals and because of latent persecution for santeria they passed this ban on animal sacrifice that eventually was ruled unconstitutional and the reason it was ruled unconstitutional because of intent because they listened to transcripts of the city council meetings they were able to divine that this was a racist law because they listened to what the city council said that was very interesting but I also wondered how much of a first amendment issue that is because you're saying that in the travel ban you have to go back and listen to what Donald Trump said when he was running for president it's partly what he said when he was running for president but it's also what he continues to say so one thing that came up yesterday is that they still at the time of the oral argument although I understand right after it they took it down there was something on the website talking about banning Muslims on the official website so that the ongoing statements by Rudy Giuliani who publicly said that he was asked to create a legal Muslim ban Stephen Miller who said the first ban and the second are essentially the same all of these statements go to intent and they're all relevant but the connection to the first amendment is the free exercise of religion is guaranteed you can't prohibit the free exercise of religion and the thought is that in Lakumi that what the councilmen were doing and also by analogy what Trump is doing is trying to is showing animus towards a religion towards Muslims in this case and towards the centauria in that case and that's what it that's an example of what it means to prohibit religion but what is it related okay idea too about establishing right but but what an originalist say it doesn't matter what you said in the lead up to the passage of the law or the executive order because that's a first amendment issue aren't you originalism keeps coming up and so I want to say something about it I do think that the original meaning of the constitution is important the text is we certainly have talked about the text a lot and talking about these clauses but what the law is isn't just what the founders thought or what the law meant at the time of the founding it's what courts say and the courts have elaborated this idea of free exercise of religion in terms of that case and the animus doctrine so I guess that's what I want to say you know that case what do you mean the animus doctrine what do you mean that sorry that's a shorthand for the whole idea of Lakumi that we talked about that they were intentionally discriminating and showing a kind of prejudice towards the santeria religion that's the shorthand way of describing the whole okay I want to I want to discuss this because it will lead into Ann Coulter speaking at Berkeley by the way I gotta say something about you're reciting the facts particularly when we did it a couple of times ago you know you did that so well so when somebody was asking me about this podcast they said well how does it how's it working and I said well imagine that you're in a class and you ask somebody to recite the facts and what you get is an Emmy award-winning writer telling the story of the santeria and Lakumi so I just I don't know I wanted to give you you're always praising others and praising me and putting yourself down but you know that really was so a plus well gotta be gotta be said I should in a previous life I was Sandra Day O'Connor I never talk about this but I quit all live you know I know I quit I quit the court because I wanted to write jokes want to lead this into Ann Coulter speaking at Berkeley in freedom of speech and your trip to London and where there are speech codes because I had a conversation with Judah Grundstein who writes for World Politics Review he's in Paris I tease the idea of censorship that I believe the First Amendment can be overstated when it comes to freedom of speech so I I'm trying to get to a point I think here about the First Amendment and could an argument be made that the Supreme Court has no right to listen to what Rudy Giuliani said about Muslims to listen to what Donald Trump has said about Muslims or to in Lakumi listen to the transcripts of a city council meeting to divine the intent of a law isn't that a violation of the First Amendment to say well this is what you said before you made this law so obviously you believe such and such shouldn't the law be interpreted solely on the merit of the law yeah that's interesting I mean first of all I'll do what you did before which is just to clarify for listeners the First Amendment has many clauses in it many provisions and rights protections one is the one that we've been talking about extensively when we're talking about Lakumi and that's the free exercise clause or the free exercise of religion another related clause that's relevant to the case yesterday into the travel ban is the ban on establishment of religion or the creation of an official religion and under that clause too I think there's a ban on disparagement of religion and so that's why the travel ban is related and now your question is well what about this other thing one of the other rights that's protected in the First Amendment free speech isn't the court in Lakumi and what we're saying in the travel ban case isn't it undermining this other right of freedom of speech because it's I guess you would say it has a chilling effect on people like Rudy Giuliani it's an interesting issue but no I don't think so I think you know you do have the right let me put it in a kind of blunt way the president has a right to believe whatever he wants as a private citizen he can think that Jews or African Americans or inferior if that's what he thinks or that Muslims don't have a right to be in this country I'm not saying he does think these things but if he believed that he would have an absolutely a First Amendment free speech right to to believe those things but the second that you begin to make law and to make policy that's a different matter what the free exercise clause and the equal protection clause mean is that when lawmakers try to impose their will and they're elected officials so it's not that they're have no right to do this in any case but when they they they're exercising that official capacity to influence others to pass an executive order regarding who can come into the country and who can't the absolute meaning of the constitution is they can't do that based on prejudice you can believe it as a matter of free speech but you can't act on it if you're going to make law and that I think isn't just a sort of by the way part of the constitution it's the core part of the constitution and it's the lesson I hope that the president is slowly learning through this public lesson of the travel ban then if you can cite what people have said yeah to overturn a law yeah it goes to their motive and their their state of mind their intent an argument could be made that that's a first amendment issue that a law should be able to stand on its own regardless of what was said in the lead-up to the passage of that you know I don't want to overstate it because I think that your view if you look back at Lakumi maybe you're sick of the case but if no no galea opinion in Lakumi you'll see that he said something very much like he doesn't quite make the free speech argument that you're making but he does say we shouldn't be trying to get in the minds of public officials and we should just look to the text so one really interesting question now in this case is imagine that the travel ban itself never said anything about muslims it did talk about prioritizing christians in the refugee section over christian refugees over muslims so there was a element of textual discriminate that's a fourteenth amendment issue right well the protection yes right the fact that there was this that's partly equal protection but it also goes to the intent of discrimination because the law if it says we're going to discriminate you can safely assume that the intent was to discriminate i think it was part of the idea and that's how scalia wants to do it he wants to just say we can talk about intent under the free exercise clause but we have to do so by looking at the text only and that's kind of the view that you're pushing and you know it's a real view in law but it's one that i think is wrong because sometimes the evidence is so overwhelming free speech or not i mean you could say whatever you want if i tell you hey here's the intent of the law i mean imagine just to make it easy donald trump was getting on television every day for the last 30 days and said you know what my staff can tell you what they want and the text doesn't say it but i'm telling you this is a muslim man i think we'd you know be naive to think or lack common sense to to not take those statements into account because they're he's telling us what his intent is and people know what they're what they mean to do even if they try to hide it the thing i'm worried about is why it's worrying hang on hang on for one second professor sure slow me down okay president will sign a bill yeah and then there's a signing statement sometimes yeah and signing statements are i'm signing this bill it's now the law but here's what it really means because i'm the guy who has to enforce it so forget all this stuff that i just signed here's what i'm gonna do yeah how does that fit into lacumie and intent shouldn't somebody then be able to take the law to the supreme court and say look we just heard the president say he's only gonna enforce these parts of the bill the bill is unconstitutional we know the intent now yeah i mean that's a with trump these all these kind of things are not hypothetical they're real there is a question about this executive order that he just signed about that's that case that's this is a different issue than the lacumie issue but related what do you do when the president says i'm not going to enforce the law and the executive order that he just signed for instance saying that he's not gonna well he said it was debate about what it actually says but that he's going to give a break let's say to churches that endorse political candidates 501c3 is the law passed by congress that says if you're a preacher in a non-profit church you can endorse a candidate now trump doesn't like that partly because he sees these preachers as potentially supporting him this is the johnson amendment this is the johnson amendment so he just had an executive order that he said was going to undo the johnson amendment now in the text of the order you know he doesn't seem to say that he talks about not discriminating against churches but to me to go to your question the fact that he told us i'm going to undo the johnson amendment that suggests that we should be really suspicious of it that his real intent is to undo the law and that's not something right we're like a pebble skipping we're all over yeah but it's the hd hour yeah no but no no it's my fault but i'm making connect they're all connected follow it yeah we've done fewer jokes this time well yeah you're going to london and again this is a first amendment issue yeah we talked about the right of an colter to speak at berkeley which you say is it's perfectly fine for an outside group to pay her to go speak at berkeley and she should be protected by the first amendment because it's a government school not a private school you would agree that if i wanted to go speak at bob jones university or liberty university which are private religious colleges that they would have a right to ban me correct unless they receive federal funding i think that well that makes it complicated i mean bob jones famously had its federal funding revoked because they refused to comply with basic you know they discriminated against black students basically they didn't allow interracial dating at the in the campus they didn't allow membership in the n double acp so even though the constitution doesn't directly apply the irs in that case tried to sort of incentivize them being less racist using the spending the fact of spending the way that turned out interestingly is that bob jones just said you know what we don't want the money anymore and they just cut themselves off entirely from the federal government so there is nuance to freedom of speech and it seems to say to actually the nick that was forced upon them the the nixon administration revoked their nonprofit status but they they refused to comply with the demands of the of the administration the liberal nixon administration yeah in many ways france germany and the united kingdom understand the importance of freedom of speech right but they understand nuance and because they understand nuance and because they understand that all speech is not equal they have a smarter electorate brexit not withstanding i they did screw up and they voted for brexit without understanding what was in the bill it's almost like the republicans passing passing their health care plan the french are smarter than we are because somebody is saying no no no you can't talk that way we have rules of the road right we're in america where it's almost at a point where i think we're five years away from people saying dictionaries are a violation of freedom of speech grammarians are violating freedom of speech you know language should mean word should mean whatever you want them to mean in fact should mean whatever you want them to mean at some point somebody has to reign in speech otherwise it's chaos it's orwellian well i would say this first of all i guess this is the time in the podcast where the comedians usually pitch their gigs so i can apropos friday i'm appearing at university college london i'm at the art and gash jeremy waldron i'm pretty sure there are not going to be a lot of jokes but the conference on exactly this issue for the reasons that you are exactly identifying there are two traditions of thinking about free speech and the united states is an outlier you know we have this extreme absolute protection now i'm going to be defending it i'm a fan of it but you're also right to say you know the rest of the world doesn't do it this way for exactly the reasons that you're suggesting and it's not that england doesn't have free speech or that these european countries or france doesn't have free speech it's that they have decided that the way to protect it is to limit it and to not protect all viewpoints not to protect fascism and you go to jail if you deny the holocaust in germany you go to jail if you defame islam in france and the related laws in england so you were just right i mean we do it really different ways i wouldn't want to shut down that discussion but i i am a defender of the uniquely american approach which is to defend all viewpoints i mean as i said i don't think you can just do that you've got to find other creative ways of combating things that are false and uh partly it's about using language in ways that is orwellian that is fake news you know is the short end for it but also uh you know racism i think and you know my faith in america is that we can have this robust protection of free speech and find other ways to combat hate speech that and as i said product placement coming up for an academic book and when the state speaks what should it say that that's the argument that i try to make but i i also want to you know what you've got the almost the presumptively correct argument because everybody else in the world does it your way and you know you're on firm ground there i'm on firm ground because we're killing the planet yeah you know i mean these days the best challenge to me is what if we lose you know what if these fascist views take over and there are increasing in massive numbers in ways that are when i wrote that book i couldn't have predicted but here's my challenge back david you know what's the better model france has just thankfully defeated a fascist but she received a significant portion of the vote in a country where it's illegal to hold the you know views that are pretty close to the views that she holds and yet a significant portion of the country voted for marie lapin who is the national front is heard the name of her party but it is a fascist party and so the laws aren't going to save us you need to care about the culture and you need to care about transforming it and in effect i think in europe then this is what i'll say on friday that there is a tendency to think that we solve the problem because the law says something but the law doesn't result in the culture transforming itself the way you want it to and so you know prohibition is not criminalization is not necessarily the way to get your goal i think we've got to be more creative you can now keep your kid at home and teach creationism yeah you know but that's the failure of our education system and the wider culture i mean i think for instance that homeschooling is not an obvious right of parents who want to ignore fact i think if you're going to do it then you have to teach a curriculum and part of the curriculum has to include the fact of what's happening with climate change and the you know facts of science you can't just come up with your own rules that's not a free speech violation that's a matter of education but that's exactly the kind of thing i think in our culture that we have to do if we're going to have these robust free speech well but what happens when you have a president and a press secretary who kind of use the first amendment to say those are our version of the facts and we're free to say this well you know i mean that's why we're in unprecedented territory the president's obligation is to uphold the constitution to speak in defense of basic facts like the existence of climate change and we have a president who is betraying his constitutional obligation and also basic obligation of the leader of a country to respect facts what do we do i mean we're you know that was the previous discussion we're trying to fight him in courts we need to defeat him in the next election and if it turns out that he hasn't just done the things that we know about but he's done more than you know these are the things on the table like impeachment you don't think too much speech is dangerous let me i i want to believe what you believe yeah i do i know that you're right and in many ways i'm toying with the idea of censorship certain speech is hideous the same way i don't want a strip club down the street from my house i may not want a marijuana clinic near my house those are zoning issues it's it's aesthetic it's i don't want a billboard advertising the hustler club above my kids elementary school but which is actually something that i complained about a hustler club they had a stripper on the billboard was right above my kids elementary school it objectified women and i said if you know if you want to objectify women i might as well homeschool this kid they don't have to go there i'm making a joke but i have a right i have a right as a citizen to say this is offensive well i mean that's the question and i think that if we did it that way then there are lots of different things that offend you know basically something offends everyone you would be out of work think about your job you know you're affecting triumph you uh the daily show bill mar your podcast on a daily minute by minute basis are causing offense and if we really base the limits of the law and what offense people you wouldn't exist as a you know you would exist as a person but you wouldn't exist as a comedian but there's a comedian would but speech is monitored by the community it reflects standards so how could you do what you do if that was true because i'm not forcing this down anybody's eyes well that's right and that is what makes the zoning i was going to say that that is what makes the zoning question different that when people are forced to confront something then there are ways that we can limit things when it comes to the time and the place or as the court says the manner of the speech but that's very different from trying to control the opinion that people have there also is a limit on obscenity precisely because it's not about opinion it's about something else it's about sex and that's different than coming in and saying what you don't want to say which is because i don't like what you're saying your views your democrat or republican views they offend me if we use that as the criteria then there really would be no free speech because as i said in this culture something offends everybody thank you for doing this and i'm gonna miss you next week but only a week okay i don't know how much history you know so this might be an unfair question i would assume after world war two after the total destruction of europe and i mean total destruction of germany just obliterated that people saw the dangers of incitement to riot so they reigned in speech before world war two and this is an unfair question what were the speech codes in europe the history in the united states went the other way that we had a long history before the brandenburg decision in the first half of the 20th century of allowing for limits on speech that was considered dangerous what is the brandenburg decision it says what i've been telling you that you have a right to your own viewpoint and to not be restricted in it unless you're going to cause basically a riot imminent danger imminent threat of lawless action is that where you get fire in a crowded movie theater that's the original formulation of it that homes created actually much earlier in the early 20th century in a case called shank okay uses what's now become a cliche but at the time was a profound and important explanation of his views of the law but despite him saying that the law was that you know if things basically were posed a clear and present danger that's how the court put it if they if they in communism was thought to pose such a danger and they could be limited and so routinely communists were or anarchists or radicals of different forms stripes were arrested now after the world war two and pretty pretty well after and this is decision in brandenburg the court said you know what we're not going to do it that way anymore if you have an opinion and it's not causing an immediate risk of harm to somebody like the fire example it's protected now europe did the opposite they did impose these restrictions and have a very different tradition the tradition of what's sometimes called militant democracy that says we're going to protect speech but we're not going to allow nazism or fascist or racist speech so it's two very very different histories and different reactions to events and war and the events of the first half of the century and the two countries really split in in completely different but in the lead up to world war two you had mosley you did have nazis yeah these speech code laws are after world war two well just to be clear that in the first half of the century you have lots of examples of i mean routinely it's the left actually that's that's that people are going after but you could have gone out after extreme right wing groups as well under the same laws but at the state level and the federal level people are arrested because their views are considered anti-american or radical and it's not until after the war and this brandenburg decision that the court puts really an end to those prosecutions i'm gonna leave i'm gonna leave you with a thought sure and then we'll talk again in two weeks i want to hear about i want to hear about the biking trip through okay but but if in europe it's against the law to deny the holocaust right i happen to think that's a good thing i know you don't but i know that there are people in london who have been fined professors writers who have been fined right for questioning the holocaust i think laws that ban the denial of the holocaust are genius because the brain is so resilient that when it can't fathom some horrible deed it denies it that's why you have men who sneak off in the middle of the night and do horrible things to whomever and then come back crawl into bed with their wives and are just it never happened they don't know you know they they deny it so i do think holocaust denial i hate to say it i kind of think germany is pretty smart for not only teaching the holocaust but to make it against the law to deny what they did and if i were african-american i think my life would be a lot better if after the civil war it was made against the law to say that the south seceded because of the tenth amendment because of state's rights i think that argument that revisionism that the south perpetuated after the civil war led to jim crow and this country's inability to deal with our original sin of slavery and the civil war i mean the south never really accepted responsibility for fighting a war to keep slavery which in many ways is a holocaust well i mean look i think i'd love to continue this discussion away we're just sort of getting into it into the beginning of it right i'll leave you with one thought and then maybe i'll give you a homework assignment on these topics the thought is imagine that counter factual that we tried to just enact laws banning these beliefs and then what i want to know is i mean maybe you're confident about this but would it work and i'm just not convinced it would i think what you might get in fact what you would get and what you got in europe is a reaction where people dig in and they say you know what i can't you're telling me i can't believe that it must be true instead of doing what we more effectively have been doing and need to do way way more of which is pulling these views out into the public and challenging them not with threats of going to jail but with reason and facts and in the end the only way that reason and facts are going to prevail is if we use reason and facts not if we use threats of imprisonment okay that's my response very quickly i want to ask you about your bike trip i think what we learned today though i think this is what we've learned today i think we've learned about the tenth amendment that the tenth amendment is in the bill of rights and that all powers not granted to the federal government revert to the states that's what the tenth amendment is the 14th amendment is equal protection under the law and the first amendment protects freedom of speech but it also protects the right to practice your own form of religion and to prevent a state religion all right they're all connected everything's all connected what's our assignment again do you think i could assign my own book what do you think of that rule that's a constant thing for professors who have anxiety yeah yeah yeah yeah signing their own book yeah i mean i we've naturally i haven't tried to steer the conversation this way but we've sort of have happened upon my subject i guess of academic expertise and the thing i've written the most about so if you want to read i mean if you don't want to buy it you could actually get for for free online the introduction to my book which is called when the state speaks what should it say published by princeton university press and it's on their website it's also on amazon.com and then i would recommend the introduction and the third chapter i think we could skip you know just kind of get to the meat of the argument that's relevant to what we're talking about and you'll see that all the issues that we've been talking about today are that's what the book is about it talks about some of the history about the contrast between european approaches and american ones and it gives my view which is a defense ultimately of the american approach to well i have two weeks and i'm going to do that yeah that's great very quickly so then you're you're going to london and then you're riding your bicycle i am yeah my wife and i are gonna travel around the burgundy region and we're gonna yeah we're gonna eat and ride bikes that's in france it is in france yeah well well professor cori brechneider follow you on twitter and when you come back i know you'll be writing pieces for mainstream publications and it is an honor for you to talk to me i know that it is it is an honor it's funny but also an honor yeah i just i know the american people thank you for educating them really i mean it's today in particular there wasn't a lot of humor it was just sort of nitty gritty con law and how great for a comedy podcast i hope that you still you know i work in this town i i know it's difficult for people to to say thank you but i know that it must be intimidating talking to a man of my stature but i think you're relaxing around me and it's uh it's getting easier interrupting last okay asking me for divorce advice okay i'm not gonna even go there go have a fun time we'll talk to you in two weeks thanks so much man that i thought it was a great one yeah absolutely it was great thank you so much it's getting better it's getting