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July 3, 2024 - Louder with Crowder
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The First Amendment: American Masterclass with Historian David Barton | Louder With Crowder
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So when I first brought you this installment in July 2019, the First Amendment, freedom of speech, they were already under fire.
Universities were banning speakers, performers, because of the woke mob, which is a newly coined term, and celebrities were being canceled for 10-year-old tweets.
It was new territory.
Since then, one could argue that things have not improved, but almost have gotten worse.
You have the government having worked hand-in-hand with big tech to shut down stories that both of them didn't like and have altered the course of elections.
You have had people removed from the town square for simply questioning COVID policy, domestically or internationally.
And the sitting president was actively banned from all social media in the span of 24 hours
in one of the most obvious examples, I would say, of collusion that we've seen in this
country as it relates to government and quote unquote private companies.
We are actually in danger of losing our first amendment rights in this country.
And too few people understand what that actually means.
Hopefully this helps.
Happy 4th, or Independence Day if you prefer.
I prefer 4th because it's easier to say.
I'm also wildly uncomfortable, as you are now, I'm sure, the viewer.
We're here with David Barton, wall builder, wall builders, sorry, is the organization, and he's sort of like the MacGyver of historical artifacts.
You give him a bent-back paperclip and an empty straw and he will give you the Declaration of Independence.
He just finds them out of nowhere.
Today we'll be talking about, specifically, the First Amendment, freedom of speech, if I can just You're not the same as those 4th grade kids that were sitting there in the 1890s.
Especially because they were very malnourished and I assumed quite often beaten.
So, first off, for people who aren't necessarily entirely aware, In a nutshell, what is the First Amendment?
What does it guarantee in the United States?
The First Amendment is part of the Bill of Rights.
It recognizes rights that exist and says that people have a right to do these things and that government is not to touch those things.
So the First Amendment contains five rights that says government cannot regulate these rights.
They don't belong to the government.
And you have the right, free exercise of religion, you have the right of speech, you have the right of press, you have the right of petition, and the right of assembly.
So those are the five rights.
Now, unfortunately, only one in a thousand Americans can name the five rights in the First Amendment, so we don't even know what they are generally.
But those are five things that the government is not to interfere with and limit and regulate.
Right.
Is this uniquely American?
Does this exist anywhere else in the world, particularly like freedom of speech as an absolute?
It did, but it was always, for example, Great Britain, we had all of these rights in Great Britain.
And part of the reason the Founders explained that we separated from Great Britain was King George III kept violating these rights.
Some of these were set out back in the Magna Carta.
So these have always been recognized as natural rights, God-given rights, inalienable rights, different terms.
They've been written about by John Locke in the 1690s or Montesquieu in the 1750s.
Other nations, other philosophers, Grotius and Pufendorf, they're Dutch philosophers.
A lot of people wrote about them.
Not many nations had them.
But in the British system, they did exist.
But they were regularly violated because in the British system, you didn't have three branches that were separated.
You had three branches, but the king's over everything.
So if the king went bad, it all went bad.
That, combined with a taxation without representation, ended up with entire buckets of twinings in Earl Grey being dumped into the harbor.
So, for people who maybe they just think it starts with the First Amendment, but you have some context here that sort of led to that, right?
You're saying this is the Zinger?
Yeah, this case is the case and trial of Peter Zinger.
Now, let me set the background even before that.
I'm going to go back here to an Act of Parliament, and this goes back in the 1600s, 1646 this is.
So this is passed in June, or December of 1646, and it's a law of Parliament on whoever can preach the Gospel of the Scripture.
So they're saying, here's what you can and can't say.
We will tell you who can say religious speech.
So that's a law of parliament on who can and cannot have religious speech.
Who can and cannot say things about the gospel.
So this is the British mindset.
You have free speech, but we'll tell you what you can say and who can say it, etc.
Kind of like the British mindset today, where they jail someone for doing a cover of Kung Fu Fighting because it's hate speech.
Yeah, that's right.
You know, that seems more regal.
Yeah, that's more regal back then, because you had Parliament do it.
So, what they get into is, with that kind of mindset in America, there's a lot of government interference with America, and Americans are much more aware of their rights.
They did a lot of reading of those guys we talked about, the locks and monascuses and grocers in Pufendorf.
They knew rights, and they knew inalienable rights, and they knew that government existed
to protect rights, and Great Britain's not doing that.
One of those rights was freedom of the press.
So freedom of the press, what happened was you had a governor in New York, Governor Cosby,
who the people thought did some really crummy things.
A heavy...
Once a Cosby, always a Cosby.
All right, I apologize.
He did some inappropriate things, we should say.
We'll say inappropriate is the word there.
So he did inappropriate things, and newspaper publisher Peter Singer criticized that in writing.
He didn't impress.
The British courts took him and jailed him for a year and said, the law says you can't criticize the king or the government.
And that's British law, you can't do that.
He did it.
So when it went to trial... And this took place where?
This took place in New York City in 1735.
So he goes to trial in 17... well actually they jailed him in 1734.
And so in 1735, a year in jail for criticizing the government, he is at trial and he has two really good attorneys.
The judge disbarred the attorney.
Zinger.
You got a Zinger now.
He had a Zingerman, yeah, representing, probably, yeah.
Or Berg, yeah, Steen, right.
So they get disbarred and they choose this young attorney who doesn't have any experience
and said, you can defend him.
And so his defense to the jury is very strong.
He says, look, He may have criticized the government, but what he said was true.
And the jury went back and said, truth is an absolute defense.
He may have criticized the government, but if what you say is true, then that's fine.
You're allowed to criticize.
You have the right of free speech.
You can criticize the government.
What you say is true.
And so that jury decision that overturned what the judges were doing, and the one thing that the British did get right at that point in time was the jury has the final word.
And so in cases like that, and William Penn, who founded Pennsylvania, when the jury said, that's it, that was the end of it.
And the British at least did respect that.
So that became the foundation of freedom of press.
Now it's interesting that in that building where the trial occurred is the same building in which we framed the Bill of Rights to give freedom of the press.
So as they're sitting there framing that, it's just, you know, it's like right there we had the trial.
Right.
So this is all cognizant to Americans because this is all part of protecting those natural rights.
And again, though, kind of like we were talking about before, you know, this was when there were shared fundamental values.
Truth is an absolute defense.
That's right.
But you were also telling me more, I think we have some over there, kind of fake news.
If it wasn't true, it wasn't always defensible, right?
This is kind of fun stuff over here.
So let me pull some stuff out.
I'll just let you take the first shot at this.
So this is an old law book.
This is one of the state law books.
This happens to be out of Virginia.
And here's the whole section.
What's the section titled?
False news.
So there's false news.
Here's what you do with false news.
You got the right to news.
You have the right to freedom of the press and speech.
You don't have the right to lie.
And so what happens is you can lie, but you need to be held accountable for it.
So this is where we would provide provisions.
And here's another one of the law books with this kind of fake news stuff.
And so what would happen here, if I can get to it, you know, again, this is an act against divulgers of false news.
So if you're saying something that's a lie and that hurts somebody's reputation, he's got a right to defend his reputation.
So you've got to make a way to punish people who intentionally say something false or that do things that hurt your reputation.
Today we've made it very, very, very hard to sue for defamation.
And of course today you have to show that there was great economic harm.
So if somebody slanders me or libels me, it's only slander or libel if it's hurt me economically.
They don't count reputation as something.
These guys thought your reputation was everything.
So there were a lot of laws that said you have freedom of press and speech, but you also have to be accountable.
This is one thing I love about what the Founding Fathers did with every right in the Bill of Rights.
They said for every right, there's a corresponding responsibility and duty.
So, I've got the right to free speech, but I have the duty to tell the truth when I speak.
I have the right to keep and bear arms, but I have the duty not to shed innocent blood.
You know, so, everything had a responsibility.
And so, that's what the responsibility is.
Now, is this false news?
Does that just apply to the press, or does that also apply to personal freedom of speech?
Both.
Here's a press one.
This is great.
It says on the front, Letters from General George Washington.
And so, this is dated 1796, but I want to show you the first letter.
Can you be using tweezers or something?
You bet. It looks like it's coming apart. It is. It's old.
So George Washington.
These are letters from George Washington, but I'm going to open it up here and the first letter...
Shouldn't you be using tweezers or something? God, I mean, like, if I have a first issue printing of the thing, a
comic book, and if I bend the crease, it's worth nothing.
Well, you're right, and that's why we hold these to about 60 to 90 degrees open.
We don't let them go open all the way.
And we don't use gloves because gloves, you don't have the sensitivity.
And so if I use a glove, I'm invariably going to tear that paper.
Now gloves are good for artifacts.
And I'll keep my fingers off the printed part, but on the edges, that's how we can tell how soft the paper is.
So what we have is a letter from George Washington.
This is June the 12th, 1776.
So we have Washington in the middle of the Revolution.
This is a letter that was printed from Washington, apparently, in a New York newspaper.
And in this letter, Washington takes this tone of I don't know what to do here.
What I'm doing in this revolution is the wrong thing.
We shouldn't be doing this.
We don't have a moral right to do this.
I don't think this is going to turn out right.
The whole thing is just a real downer.
Except he never said any of that.
That was the press making that up.
I was going to say, it doesn't sound like my Georgie.
That's right.
It was not George.
This was done by a newspaper editor in New York To build sentiment against the revolution.
Get the patriots, these guys are all radicals, they're all crazy.
Washington doesn't even think they're right.
And everybody loved Washington.
So this was the press doing false news.
What were the consequences for that?
Well, the guy got exposed, first thing, was when they exposed it, and America still had enough of a moral fiber back then, they didn't like being lied to.
And so at that point in time, that's it.
He's kind of, he's no longer a press guy anymore because nobody's going to buy his stuff.
So that was exposure.
But on the other hand, you have a founding father like Benjamin Rush, who's a signer of the Declaration.
And as a signer of the Declaration, he was, John Adams said he was one of the three most notable signers, three most notable founders.
John Adams said you had Washington and Franklin and Benjamin Rush.
But he's not often talked about.
He's not often talked about.
People think he wrote Fly By Night.
Not at all.
No.
But he was amazing.
I mean, he's the father of public schools under the Constitution, started five universities.
He's the most famous physician in American history.
He has medical cures 200 years ago we still use today.
He had a critic back then, there's a guy named William Colbert, that just absolutely would not let up on him in the papers.
He's a quack, he's a killer, he's killing his patients.
I'm selfish that way, you know.
I'm sorry. I know. Yeah, I'm sorry. You keep it all for yourself. That's right. I'm selfish that way, you know
This is just so this is an action This is a court report and what happened this guy beat on
rush for years and years and years and rush Ignored him as much as he could and finally he said, you
know my reputation. I got to do something So he took the guy to court, and in court he won a huge settlement against the guy.
So back then was that like four nickels?
It was, back then it was $5,000.
That wouldn't even get you an attorney hired today.
But back then, that was a huge settlement.
And so, $5,000, and he gave it all to charity.
Because what he wanted was his reputation back.
He didn't want the press, and this guy particularly, who was riding in the press.
So, an individual action against a person, and Rush won it in court.
And that stopped the guy.
He had no more criticism of him after that.
Rush got his reputation back.
And even today, Russia considered and viewed very highly.
Yeah.
That was a big thing.
A lot of people don't understand that nowadays.
When people say, them's fightin' words, it usually wasn't from being physically assaulted.
That's right.
Back then, your reputation was worth something protecting.
Or the reputation of your wife, right?
This was something that people, they would.
They would go to blows over.
And now we're talking... They would go to duels over.
Yeah, I know.
Dueling was really common.
When you think about that, a couple of punches in a bar fight seems like nothing if somebody ruins your reputation.
But back then, they were pretty severe.
And it seems like we've lost a little bit of that, and we've also lost some accountability.
I've often talked about this in hockey.
It's the only sport where there's accountability because the ref will Thomas Jefferson.
No, no, no, no.
You earned this one, Marc Messier.
Exactly.
Now, that was in contrast to what you were telling me, Rush to Jefferson.
Thomas Jefferson.
What happened in the election of 1800 was Thomas Jefferson, the libel and slander against
him has reached a level that has never been seen in any other political campaign.
We talk about negative campaigning today.
We're a bunch of wimps.
I mean, you read what was said about Jefferson back then.
He was a murderer.
He killed a wife and eight kids, and he's abolishing the Navy, and he's, you know, he's finding every Bible, and he's collecting them and burning them.
I mean, the stuff that was out about him.
Sounds like Bernie 2020.
Well, nothing changes over time.
Only one actually didn't happen.
So he's got all this stuff and we've got a whole bunch of these articles about him, this negative stuff, and he's writing his friends and saying That's not true, and we all know that's not true, and history has proven it wasn't true.
And this is the period of time in which he was accused with fathering children of Sally Hemings.
Right.
A lot of people still believe that.
Well, in November of 1998, the report came out by Joseph Ellis's Nature and Science magazine that said, we now have DNA evidence.
Jefferson did it.
We know he did it.
Actually, Eugene Foster's the guy who did the DNA test.
I talked to Eugene.
We talked to him.
He said, no, I told him that.
We did not even use Jefferson's DNA in the testing.
And so what happened, Joseph Ellis was a huge fan of Bill Clinton, and Bill Clinton was being impeached for the Monica Lewinsky stuff at the time, and he thought, you know, If we can say Jefferson did that, we can say Jefferson was a great president, this had no effect on his presidency, and so Ellis had actually been part of a full-page ad in the New York Times on how great Jefferson was, shouldn't be impeached, and this seemed to help it.
So when the piece came out, and by the way, we talked to Eugene Foster, he did a second DNA testing, and same thing.
There's no evidence that Thomas Jefferson did this.
So, to this day, everybody knows there were 211 news outlets that carried the announcement that Jefferson did it.
Six weeks later, they pulled the story back and said, ah, sorry, we were wrong, but only 11 outlets carried the retractions.
Was it kind of one of those first story front page retractions?
Absolutely.
Somewhere in the sports section.
That's right, in the advertisement section.
Somewhere next to Garfield in the comics.
Exactly.
And so people today still think Jefferson did it.
Jefferson, back then, he said, I'm not going to take these guys to court.
He said, I could easily disprove them in court.
I can show.
He said, but you know what?
I trust the good judgment of the people.
I trust that there's a God in heaven before whom these liars will stand and they'll have to account to Him.
He went through three reasons.
He just didn't think it was worth taking to court.
It's interesting that today, one of the reasons the critics of Jefferson use is that he never denied the affair with Sally Hemings, therefore he's guilty of it.
No.
So he's a guy that did not take advantage of his ability to prove his innocence back then, and today we say, well, he must have done it.
But Rush did, and so we have a different opinion of Rush.
We see the people who might be a little nervous hearing this saying, well, of course, okay, you shouldn't lie, commit libel or slander, but there is some concern that someone in power can more easily say, well, that's not true, that's libel or slander, and they have the ability to tip the scales of justice.
You know, that's what people would say about Donald Trump, for example.
There was a lot of cause of action back then and a jury of your peers is what decided.
The government didn't decide, the jury decided.
We don't do this anymore today, but at the time of the founding fathers, If a judge overturned a jury decision, that was an impeachable offense for a judge.
You just did not do that.
You did not overturn the will of the people.
Today, judges are all the time sitting inside jury verdicts.
Oh, that amount was too much.
You've got to set it aside.
So their defense back then was government, this is our protection because our peers We'll look at it and say, nah, the paper was right, you were wrong.
And has there been precedent set to be really clear in delineating between outright lies, fabrications, and just having an opinion that might be insulted?
Well, not anymore today, because it is so hard to sue for your reputation.
Again, you have to prove economic hurt.
And the average American can't prove that he's been economically hurt by lies.
That's why I love what's happening with Nick Sandman.
I hope Nick Sandman does really well, you know, the kid on the mall, Absolutely.
Opinion pieces, that's right.
Opinion pieces.
Yeah, the Covington school.
And so he sued so many of these media outlets.
And if he is able to avail in that, then people start getting their reputation back.
But I want to make sure people understand that the First Amendment still would protect,
for example, op-eds that are unpopular.
Opinion pieces, that's right.
Opinion pieces.
But when you come out and make it fact, and you said George Washington wrote this.
No, that was a fabrication all the way around.
And you didn't do due... See, we hold doctors liable for malfeasance if they don't do due diligence.
And for a reporter not to do due diligence... Now, if you want to say this is my opinion, here's an opinion piece, you got it.
If you want to say, Donald Trump is an idiot.
George Bush was wrong about Iraq.
He's a crappy president.
Barack Obama sucks.
People can say that.
So, outside of lying, outside of libel and slander, are there any limitations on individual speech?
As it relates to the First Amendment.
The limitations are accountability of telling the truth, or at least not hurting someone's reputation for lying.
Well, it's not only that.
I think it's even more pure than that.
It really is distilled to truth because people often say, right, well, you can't yell fire in a crowded theater.
That's right.
You can't.
If there's a fire, you can't lie because that could cause physical harm to somebody.
People could get trampled.
That is the moral sense that was there, was truth was the bottom line.
You're after truth, and we may have differences of opinion.
That's why you rarely see slander or libel cases in the abolition time, because there was two opinions on the worth of blacks.
Those are opinions.
But to absolutely come out and say that you said this when you didn't, or that I accused you of something you had no part in, That's where it crossed the line.
And it's interesting that, like you said, there was a time where these were sort of
shared moral values where we said, okay, if we're going to have freedom of speech, which
is a pretty radical idea, like you said, it existed obviously in the old land, but it
wasn't necessarily enforced equally.
But we said, we are going to have true freedom of speech.
There was a shared value that truth is really important.
Whereas when we've moved away from that, now people don't even understand the First Amendment
where they say, you can't yell fire in a crowded theater.
Well, it's not about yelling fire, it's about the truth.
They say, well, hold on a second, you shouldn't say this on campus.
Well, it's not about it being offensive, it's someone saying something that is untrue, and it's really become a territory that, with my generation, kids have no grasp of it.
And they say it's reductive.
But I do think the First Amendment really can be incredibly reductive.
It comes down to, are you telling the truth?
That's right.
Or are you knowingly lying?
That's right.
I should say.
Because people can be wrong, right?
And intent was a large part of it.
Right.
I mean, of course, the Juul case with the bombing in Atlanta in 96, the newspapers held liable.
And the others that reported it were also liable.
But intent was a big deal.
You had to have an intent to lie, not tell the truth, to hurt someone with falsehoods.
And that intent was really big.
If it was innocent, that was one thing.
And it really can be boiled down to it.
Then the First Amendment applies to all.
It is absolute, provided that you are not And that was why with every right there's a corresponding responsibility.
You got a right to free speech, free press, but you have a responsibility to tell the truth.
be even knowingly hurtful of someone's feelings but not dishonest, it's covered.
Dishonesty is the one.
And that was why with every right there's a corresponding responsibility.
You got a right to free speech, free press, but you have a responsibility to tell the
truth.
Right.
This is kind of a little bit more macro.
We do have to get going.
We have some other installments, of course.
Click the button, watch them on YouTube.
For example, Bernie Sanders, to go back to Bernie Sanders, has talked about how the Boston bomber shouldn't lose his right to vote.
Or even, let's scale it back, because that was a headline that convicted violent felons maybe shouldn't lose their right to vote.
What was the idea from the Founding Fathers, for example, if you violated those responsibilities with those rights?
For example, let's say, of course, you had the right to carry a firearm.
But if you shot somebody and killed somebody, to what degree would you lose access to those rights?
You know, it's an interesting thing because we look at voting as a right.
They did not.
They didn't see voting as a right.
They saw it as a responsibility.
It was a duty.
It was something you owed.
It was you choosing your government under which you live.
And if you've committed a heinous crime, You shouldn't be choosing the leaders because your whole moral sense is skewed.
If you think it's okay to take somebody's life, you're not the one we want choosing our leaders.
And so there was an exclusion that happened there.
You have proven yourself unworthy of of knowing the moral sense of what your leader should be.
And so for them, there was a penalty.
And even as I grew up in school, because I obviously have white hair, you don't, it was a big deal to lose your right to vote.
And that was a deterrent to crime, actually.
Voting was so important to us that when we were reminded that if you do this, you lose your right to vote, No, I'm not going to do that.
That was actually a deterrent.
It would not be today.
Right.
Because we're so sloppy with that right and we don't cherish it.
Or you could lose your right, obviously, to carry a firearm.
That's right.
And that was big stuff.
And so we understood how important those rights were.
Now we're kind of in an entitlement mentality.
This is what the government owes me.
And it's not.
Those were rights that we exercised.
And so, at that point, the right to choose self-government, to choose leaders who would not be corrupt, who would not exercise power wrongly, who would keep government limited, etc., that was a really big deal.
But we don't teach that civic responsibility the same way.
So today, we just throw, well, anybody that has two legs or one leg or no leg, anybody can vote.
You know, and you don't even have to live here.
You don't have to be part of the country.
But not anybody can have the right to speak freely or own a firearm, which, you know, they're number one and two when you look at the amendments.
Mr. Barton, thank you very much.
Watch more.
We have installments on the Civil War, Revolutionary War, Second Amendment.
Happy Fourth!
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