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Sept. 18, 2024 - Ron Paul Liberty Report
29:55
'The Indispensable Right: Free Speech in the Age of Rage.' - Jonathan Turley

Constitutional Law Professor Jonathan Turley discusses how the enemies of our First Amendment are making their moves.

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Believed to Be Liberating 00:08:10
Our next speaker, we're very honored to have this gentleman with us again.
He has spoken for us before.
Another brilliant legal mind.
We're very, very lucky.
He's an attorney, legal analyst.
You've seen him on Fox News.
He is the author of a book that just came out this year, Indispensable Right, Free Speech in an Age of Rage.
And he is frequently, frequently cited on the Ron Paul Liberty Report.
Ladies and gentlemen, Jonathan Turley.
Thank you very much.
It's a great pleasure to be back.
I'm always astonished how many friends I see in this room.
You even have one of my former professors, John Mersheimer, here from the University of Chicago.
I didn't know if this was an invitation or an intervention.
But it is a great pleasure to talk to you about free speech.
We have only about 30 minutes to go through the history of free speech.
So as Henry VIII told Anne Boleyn, fear not, I shall not keep you long.
You know, this is an immense subject.
And I just did complete my book, The Indispensable Right, Free Speech in an Age of Rage.
And the subtitle is An Age of Rage, because it's not our first.
And rage is an odd thing.
It's been with us since the forming of our republic.
The Boston Tea Party was an act of rage.
Our country was born in an act of rage.
We've had what I call rage rhetoric as part of our politics from the outset.
And we've gone through these periods of rage where rage rhetoric of citizens become state rage, where the government cracks down to silence voices that they consider to be dangerous or destabilizing.
But people have a strange relationship with rage.
What you see in today's politics is rage unadulterated.
You know, when I was covering the Trump trial in New York and I came out after the verdict and saw the people dancing in the street, even though I had just written a book on rage, it made me stop.
The fact is, people won't admit it, but they like it.
They like the rage.
It's liberating.
It's even addictive.
It is certainly contagious.
They like rage because it is liberating in the sense that it gives you a license to say and do things that you would not normally say or do.
And what we're living in today, as I suggest in this book, is, in my view, the most dangerous anti-free speech period in the history of our country.
I wrote this book to try to understand why we're still struggling with free speech.
By looking at the personalities and the periods that helped shape our view of free speech.
You see, the title of The Indispensable Right comes from an opinion written by Lewis Brandeis.
And it was a beautiful passage about free speech being the indispensable right.
We all agree on that point.
We just can't agree on why it's indispensable.
And the reason I included it, made it the title of the book, is to capture the crushing irony of it.
You see, in the opinion by Brandeis, he upheld the conviction of Charlotte Anita Whitney, who was a communist, but she was arrested for speaking against lynchings.
She was a very brave woman.
And she was told that if she repeated one of her inflammatory speeches, she'd be arrested.
And to drive that point home, they put an officer right behind her.
And she went ahead and said it anyway.
That was the case that Lewis Brandeis voted to uphold the conviction and incarceration of someone who was engaged in pure political speech.
So the question is why such a great civil libertarian, with Oliver Wendell Holmes on the court, would sign off on that Whitney case.
And the answer is that somewhere along the way, we got lost.
When I look, this book goes back all the way to ancient Greece, when we first started to see the protection of free speech.
Interesting enough, there were two different definitions of free speech that the ancient Greeks protected, one for the public space, one for private conversations.
But the most interesting thing for me was to drill down on the First Amendment and what led to it in terms of what the framers were reading, what they were talking about.
And it becomes very clear that they had a different view of free speech that we lost.
You see, the most revolutionary part of the American Revolution was what was ultimately put in the First Amendment.
No government in the history of the world had ever stated a line so simple and so profound that free speech simply could not be abridged, period.
Even when the McKee de Lafayette came from the United States and went to France to help write the Declaration of Man, he included this bold American statement about free speech.
But where we put a period, he put a comma.
And it said, so long as you're in compliance essentially with the law.
And the interesting thing about this is that even for a revolutionary, it was too revolutionary.
In fact, it's revolutionary today.
There's a movement to amend the First Amendment.
One of my colleagues is leading it.
She has argued that the First Amendment is, quote, aggressively individualistic.
And that she's actually proposed language to balance free speech against equity to allow courts to make a balancing choice of when people could speak.
So even today, it's too revolutionary.
So the question then is, what was it that motivated them to say something so profound and so revolutionary?
And the answer is that they believed that free speech was a natural right.
They believed that free speech was a gift from God.
They believed that free speech inert to us as human beings, that it was not a gift from the government.
It was not granted by discretion of the government.
The government is created to protect what is already ours, the right to speak freely.
Now, They got this notion from philosophers like John Locke and the idea that even in the state of nature, even before we entered what they called the state of society, we did have the lack of laws, but not the lack of rights.
That is, yes, we left the state of nature to bring order to our lives.
Doodling and the Human Brain 00:04:04
But people like John Locke believed that we were fully human.
We were fully whole.
We had rights that included, most importantly, what he called the right of free thought.
You know, in my book, I talk about the Sistine Chapel and the wonderful image of God creating Adam and the amazing touch that has actually been the basis of I don't know how many PhDs.
What is that touch?
What's the touch that God extends to Adam?
Most people just say it's the touch of life.
It is the creation of life.
I don't believe it is.
I have a sort of a weird Lockean view of the Sistine Chapel that I teach my students, and it's in this book.
You see, years ago, there was a medical professor who noticed something that surprisingly no one had noticed before.
Millions of people looked up at that beautiful center panel.
And while he was looking up, he realized something.
Behind the image of God is this shape, which almost looks like a ribbon.
But that shape is in the exact shape of the human brain.
He would know he's a doctor.
He went back, he took a picture of this, he superimposed the human brain, and it's exact.
Which you have to keep in mind, Michelangelo used to dissect bodies.
He was very familiar with the human body because he would use it in his art.
And it raises this intriguing question: why would Michelangelo do that?
Why would he put God superimposed over the human brain?
Now, this may be a wacky notion, but I believe that that touch is more than life.
I believe that what Michelangelo was capturing was that God was giving to man the right to be a creator.
When we say in his image, to actually be a creator, like God.
That the reason that human brain is behind him is because the true divinity of man is found in that brain.
It is found in the capacity and the necessity to create.
You know, the book talks about how we are hardwired for expression.
There are medical studies that show that if human beings are not allowed to express themselves, part of the human brain actually shrink.
Like the hippocampus will actually shrink.
These are studies of prisoners and segregation, explorers who are cut off from other people.
We have a necessity to project part of ourselves into the world around us.
You see that in the world in the simplest things.
You have to look at the Great Wall.
I always tell, whenever I see my students doodling, I always embarrass them.
And I say, what are you doing?
If they do it during my free speech lectures.
And they're really embarrassed.
They say, oh, I'm so sorry.
And I said, don't be sorry.
I just want to know, what are you doing?
And they said, well, I'm doodling.
I said, what are you doodling?
And they always say, I don't know.
And you look at it and it's usually some geometric shape.
And I said, the only reason I'm not here because I'm upset that you're doodling.
I am intrigued by doodling.
I always have been.
People doodle all the time.
They doodle in weddings, at funerals.
They doodle on a boat with a goat.
They doodle everywhere.
And most of the time, they don't even realize they're doodling.
And the Christian is, why?
What other species does that?
That we're so hardwired for expression that even when we are resting, we have to create something.
Why We Lost Clarity 00:08:01
It's in our DNA.
And so this book explores why we lost that moment of clarity.
The framers got it right.
Within a few years, Federalist judges returned to a default of a Blackstonian view of free speech, a view that I call in the book functionalism.
And I'll talk about that in a second.
But by turning away from a natural right of free speech, you allowed for endless trade-offs.
But you also denied something essential, not about free speech, about us, about human beings.
Do you know?
We share 98.7 of our DNA with a great ape.
Isn't that amazing?
It's incredible.
We have 80% overlap with a cow.
We have 61% with a fruit fly.
But here's the really amazing thing.
We have a 60% overlap of DNA with a banana.
Now the question is, does that mean we're talking bananas?
I mean, does that mean that that is what a human being is?
It's a talking banana.
And the answer is no, because we have these innate drives to project part of ourselves, our values, in the world around us.
So the problem that we had when we adopted what I call this functionalist view is that this functionalist view basically goes like this, that we protect free speech because of its function to perfect democracy, right?
And you hear this in Supreme Court decisions all the time, that free speech is needed to perfect democracy.
You can't have democracy without free speech.
Now that is very much true, right?
It's obvious.
You do need free speech.
It's the one right that you need to sustain all other rights.
It is indispensable in that sense.
But it's so more than that.
See, the problem with functionalism, which is the dominant view among law professors and the court, is that if you say you're protecting free speech because it's good for democracy, it allows you to say that some speech is not good for democracy.
It allows you to say that there's high value speech and low value speech.
It allows you to protect some speech more than other speech.
It allows you to call some information disinformation.
It allows you to make all of those trade-offs because the focus is on what's good for society and the democracy and not what is essential for human beings.
So in the case of Whitney, you have someone who fit the definition of George Bernard Shaw when he said that unreasonable people are people who expect the world to conform to them.
And he then added, that's why history is always made by unreasonable people.
Now I look around this room and I see incredibly unreasonable people.
Wonderfully unreasonable people.
And this book is about unreasonable people, people who just wouldn't shut up, people who insisted that they would be heard, even when everyone said they didn't want to hear her.
It is that act of unreasonableness that defines this right.
And so when we get to the true revolution, you can look to people, and this confirms what my students always say: that I cannot speak for 10 minutes without mentioning James Madison.
But in 1800, James Madison wrote the report of 1800.
Madison was one of the few framers that saw exactly what was happening and saw that we were losing our understanding of free speech.
And the report of 1800 is magnificent.
It's a report against prosecutions of speech, which of course John Adams was infamous for.
But he talks about how there's a monster that lives within us, a monster that comes out of a body politic, a monster when we're afraid or we're angry.
And we turn on free speech.
It was a magnificent moment of clarity as the courts were becoming more confused about this essential right.
We've never slayed Madison's monster.
It has come up again.
January 6th, what was the first thing that the Department of Justice said after they had that awful person at the DOJ say that he wanted to create shock and awe by arresting thousands of people?
What was the first thing they said?
They said they were going to charge for sedition.
Now, sedition, which this book calls, I believe, and I've written about this in academic pieces, and I say it again in this book, we should get rid of the crime of sedition.
We should get rid of seditious conspiracy.
We should finally slay Madison's monster.
We don't need it.
We never did.
That was what Madison was trying to say.
Most people don't understand that when you hear talk about the Star Chamber, the Star Chamber was created for speech prosecutions.
See, even though the British courts were highly deferential to the crown, they actually drew the line, strangely enough, on treason.
Because treason was one of the oldest offenses and it had elements.
And so even these judges, who were notoriously biased, said, we can't do it.
We can't convict someone of treason just because they said something bad about the king or the queen.
So the crown created the star chamber to prosecute sedition.
It was a speech tribunal.
And so sedition became the way that you could amplify a sort of stigma to condemn someone.
And we have never been able to break our sedition addiction, even today.
As I say, as I point out in the book, all of those seditious conspiracy charges brought after January 6th are completely superfluous.
They don't even increase any time in jail.
In fact, they are based on the other charges in the case.
So they're actually just duplications.
So why do we want to call someone a seditionist?
And he answers the same reason they created the Star Chamber.
We want to treat people like traitors because of their viewpoints.
And we can actually break the sedition addiction by taking it out of the criminal code and finally saying we don't need it.
Now, all of these views, I must tell you, I'm a bit of an increasingly lone voice in academia.
I'm a bit of a dinosaur.
In academia, I'm called a free speech absolutist.
There was time when that was a compliment.
But I want to say something about the First Amendment, and I don't want to go too long.
Rockwell's Abstract Rebellion 00:05:04
You can hit me with a dart or something.
You know, in the book, I talk about, strangely enough, art, and specifically Rockwell's painting.
See, in World War II, when FDR talked about the four freedoms, Rockwell was inspired to paint them.
And the first one he painted, not surprisingly, was free speech.
But the image he painted was of a neighbor, a neighbor named Jim Egerton.
And Egerton was a small farmer.
He was actually the great-great-grandson of a revolutionary war hero.
But what Rockwell couldn't get out of his mind was going to a small village meeting where they were talking about building a new school, an extremely popular idea.
And Egerton was the only one to stand up and object.
And he said, where's the money going to come from?
We have no money in the village.
And he said, I've had a terrible year as a farmer.
I can't pay any more taxes.
So where is the money coming from?
Now, Rockwell saw this and he was overwhelmed by this image of this young man standing up after everyone else had said such glowing things about the new school.
And he painted him.
And that image became the image of the American war bond campaign.
That's the image that they had on the posters.
Now, the reason I mentioned that is because when Rockwell was painting around that period, he was being attacked by art critics, but specifically one art critic by the name of Greenberg.
And Greenberg, his name was Clement Greenberg, had discovered Jackson Pollock.
And he was one of the voices for abstract art.
In fact, some people credit Greenberg with starting the abstract art sort of movement, not as an artist, but as a critic.
And he was vicious.
I agree.
And he was vicious when it came to Rockwell.
And he said, Rockwell has chosen not to be serious.
He has chosen not to be an artist.
He said, this is just kitsch.
If you want to see real art, you look at Jackson Pollock.
This was the most popular artist of the time.
Still is one of the most popular American artists.
I happen to love Rockwell.
I actually like abstract art too.
I like them both.
But Greenberg just kept hitting Rockwell over and over again in The New Yorker.
And Rockwell responded in a way that only Rockwell could.
He responded with the painting The Connoisseur.
And this is a wonderful painting that's in the book that shows this, it's a large painting, and it shows this huge abstract piece of art.
And standing in front of it with his back to the viewer is a well-dressed man holding an art magazine and staring sort of at this abstract art like he's looking for meaning.
And he had obviously been doing that for a long time.
Now, what was great when this was unveiled, William de Kooney, one of the most famous abstract artists, was at the unveiling.
And when they unveiled it, he screamed, my God, that's better than Pollock.
And he got them to give him a magnifying glass, and he went up and looked at this abstract art behind, that was the background of this image.
And he said, this may be the finest piece of abstract art I have seen.
Now, Rockwell, it was a wonderful response of Rockwell showing, I can do that.
Rockwell went to the very best art schools.
But he said that that's not the art he wants to do.
He said it intrigued him as an artist that he could see things in this country that other artists seem to just walk by.
Profound things that he wanted to capture.
It's not that his pictures were simplistic.
They were profound.
And they allowed people to find meaning in these images.
Well, we have our own connoisseurs in the law.
Law professors, some of whom are my friends, some who used to be my friends, who say that, look, the First Amendment cannot be as simple as Turley says.
Finding Meaning Through Art 00:04:33
It can't mean you can't abridge free speech.
It's more nuanced than that.
You have to rely on interpretation.
You have to rely on our interpretation.
And part of that is this functionless view.
The idea that you shouldn't believe what the First Amendment says.
It just can't be that simple.
You can't believe when Hugo Black said, I take no law abridging to mean no law abridging.
Black is another simpleton who's just not willing to be taken seriously for legal connoisseurs.
So where does this end?
I expect you'd want me to tell you.
I'd say, buy the damn book.
No, no, I'm not going to leave it there.
No, you know what's funny is I just got here from Colorado and I was at a book event and this wonderful woman came up and she had the book that she had read.
And she said, you know, I'm going to stay for your speech, but I read your book and I've got to tell you, I'm still a little depressed.
Is there any way that you could say something positive at your speech for some of us?
And I felt really bad.
You know, I felt like Woody Allen.
Woody Allen once said, look, I really wish I could leave you with something positive.
Would you accept two negative points to make a positive?
And so I'm going to give you two negative points, but they really are a positive point.
First negative point is it's not working.
All this effort, it's not working.
Yeah, we had some polls that show that we've had erosion on support of free speech.
But for the most part, people are against censorship.
They feel it innately.
They never have favored censorship.
More importantly, as this book notes, in the history of the world, no censorship program has ever succeeded.
Not once.
How many schools of thought, how many policies can you name that have never been successful once and yet have been used throughout history?
They've never killed a single idea.
They've never changed a single mind.
In Germany, which has one of the oldest censorship systems in Europe, an extensive one, I always tell my colleagues when I speak in Europe or they come over here, when I talk to my Italian, my German counterparts, I say, how's it going?
How's it going with that?
Right?
Because I turn on the news and the neo-Nazi movement in Germany is flourishing.
They're having record numbers.
They're marching by the thousands.
And yet a poll was just done of German citizens and it found that only 19% of Germans say they feel comfortable expressing their views in public.
Only 17% feel comfortable speaking their views on the internet.
So you're silencing the wrong people.
The neo-Nazis are flourishing and the rest of your citizens are chilled.
That's what censorship does.
It just doesn't work.
Here's the other negative point that I think is a positive.
It can't do what they think it will do.
You see, if you believe that free speech is a natural right, if you believe that human beings are hardwired for free speech, if you believe that it's in our DNA, then it can never really be killed.
Oh, you can reduce our appetite for free speech.
You can make it uncomfortable and difficult, but you can never really kill our taste for it without killing us.
Because we can't be fully human unless we can speak.
So in a book about an age of rage, the most important thing to understand is that the rage doesn't define us.
The free speech defines us.
And we have to have an awakening in this country to understand exactly why this is so indispensable, not for our system of government, but for us.
Thank you very much.
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