POLICY COUNSEL
JULY 2024 POLICY COUNSEL SPEECHES
Mike Berry
Executive Director, Center for Litigation
America First Policy Institute
Mat Staver
Founder and Chairman
Liberty Counsel
Mike Berry: There’s no way we could get into all the decisions of the court, so I’m going to cover two of the big ones. I know Mat’s going to cover some of the other ones and then also provide some sort of trend line. I’m a data geek by heart, even though I’m a practicing attorney, and I love to look at the statistics and provide an analysis of what the court did. Hopefully, that will give you a flavor for the direction the court is going.
The two decisions that I decided to cover are Trump v. United States and Loper Bright. I wouldn’t be surprised if you have not heard of that name, but most people know it as the Chevron case.
When I talk about Trump v. United States, I often refer to it as the “least most important case” of the term, because it’s actually a very important case, as it had the potential to remove somebody from the ballot to become president of the United States. This is the case that Jack Smith brought against President Trump for accusing him of orchestrating the events on January 6th. Of course, President Trump asserted that as President of the United States at the time he was immune from prosecution. The question before the court addressed a number of things, but it boiled down to asking—is the president, in fact, immune from those acts? Does the president enjoy immunity from criminal prosecution for acts that arose incident to his duties as president?
The easiest way to think about what the court did in the case was to think about it like a bull’s eye. In the center of the bull’s eye, the smallest ring in the middle, are the core constitutional duties of the president. What are the things that the Constitution clearly says—this is the job of the president and the president alone? Things like sending and receiving foreign ambassadors, negotiating treaties, the power of the pardon. The Constitution clearly says those are the things that only the president can do. The next concentric ring outside of that are things that the president clearly has the right to do, but maybe not alone. When the president nominates a judge to Federal Court, they have to work with the Senate—with the advice and consent of the Senate. Anything outside of that—things that are not part of the President’s official duties—would fall in that outer ring. So, the Court said if it’s in that inner bull’s eye, core constitutional duty, he’s absolutely immune to prosecution. Anything a president does that’s clearly delineated in the Constitution—so if the president pardons somebody and you don’t like it, sorry, you can’t sue them. If it falls into that middle ring, and it’s part of the constitutional duties or his official duties, but not solely the president’s, he enjoys the presumption of immunity. In other words, you would have to show some evidence and a good argument if you want to sue the president as to why he’s not immune. If it’s purely private conduct by the president, then there’s no immunity.
Now, the media would have us believe that this was some massive shift in constitutional law, but it really wasn’t. It was really unremarkable because it’s the same immunity that every president in our history has always enjoyed. It’s the same immunity that President Biden has right now. And one of the arguments that I thought was really, really awful was brought up by Justice Sotomayor during the oral argument. And that was, now the president—and she mentioned it again in her dissent—now the president can order SEAL Team 6 to assassinate his opponents. And he’s immune. You can’t do anything about it. And you saw headline after headline saying the president can just assassinate his enemies. Well, if that’s true, why haven’t we seen it happen? Why wouldn’t President Biden just say, oh, I’m untouchable. Take them out, right? Because it’s a nonsensical argument that is an absolute insult to our men and women in uniform. And it’s a non-starter. I’m proud to say that AFPI actually submitted a Friend of the Court brief on that argument.
Okay, so that was Trump v. United States. Loper Bright—this is the case that overturned the Chevron decision. Chevron, to put it in layman’s terms, is the decision that has given the unelected bureaucrats who occupy our federal agencies more power than our founders ever envisioned them having. More of our daily lives are controlled by unelected bureaucrats than the courts and Congress combined. Anything from the price of gas to whether you can have a gas burning stove, the price of a loaf of bread, to how fast you can drive on certain roads. That’s all controlled by unelected bureaucrats. The Loper Bright decision effectively said—those federal agencies no longer enjoy the deference that they once enjoyed.
A friend of mine used to work in the Department of Justice. He said that under Chevron, when we were in the Department of Justice, it was really easy. We could go into court when we were defending an agency, and we would just say, “Your Honor, it does not matter what the best policy outcome is for the American people.” Under Chevron, all we have to show you is that we have a reasonable interpretation of the law, and as long as our reading of the law is reasonable, you have to give us the deference to make our own rules as an agency. And the courts had to go with that.”
Now, courts can say, “Is this actually a better outcome for the American people? Is this a positive policy outcome?” It’s no longer just that “reasonable” standard. That is one of the most important cases of the term that’s going to have a long-lasting effect in a positive way for us. Now, there may be some short-term pain in order to get to that long-term gain, and we can talk about that a little bit later.
The last thing with the remaining time that I have—trend lines. There were only 59 decisions issued by the court. Less than 2% of the more than 4,000 cases that were sent to the court were taken. Getting your case heard by the Supreme court is still like winning the lottery. Fewer than two percent are going to get heard by the court. The media continues to gaslight us and tell us that the court is partisan, it’s divided, that Justice Thomas and Justice Alito are terrorizing the court and have taken over. The data just doesn’t bear that out. Of the 59 cases that were heard, 27 were unanimous. Of the cases that were ideologically split, 6-3—with six Republican-appointed justices in the majority and three Democrat-appointed justices in dissent—there were fewer than half, only eleven. So the court is not as ideologically divided as the media would have you believe, because there were more than twice as many unanimous decisions as there were ideologically divided decisions. The real power of the court still sits right in the middle; Chief Justice Roberts, Justice Kavanaugh, Justice Barrett. They vote in the majority more than 95% of the time, and they vote together more than 95% of the time. So that is the single most powerful bloc of the court. If you’re a practitioner, like Mat, like me, that’s who you’re targeting. You need to get those middle three, and that’s how you win your case. I’ll turn it over to Mat.
Mat Staver: Thanks, Mike. And I agree with you that the Chevron case, which most people may not have been familiar with, is probably going to be one of the most important cases that comes out of this particular term, because it really deals with the so-called fourth branch of government—the administrative branch— that makes rules outside of what Congress has actually done. That has been significantly curtailed with the Loper Bright case.
I want to go over as many cases as possible in the short time that we have. First, the Fisher Case involving the J-6 situation. The DOJ used the so-called Sarbanes-Oxley Act of 2002 to come after the J-6ers because it has a 20-year prison sentence. Let me just read 1512(c)(1) and (c)(2) back-to-back, and you’ll see what the issue is here. Sarbanes-Oxley Act imposes criminal liability on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document or other object, or attempts to do so with the intent to impair the object’s integrity or availability for use in an official proceeding.” That’s 1512(c)(1). The next sentence is what the DOJ relied upon. The next subsection actually extends the prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding or attempts to do so.” So, the question is—is (c)(2) something that is totally unrelated to (c)(1), which has specific document destruction limitations, or is it a free-for-all? In the Court’s decision in Fisher, 6-3, with, amazingly, Barrett dissenting, joining Sotomayor and Kagan, the majority opinion was that (c)(2) is to be read according to (c)(1). In other words, this is a document destruction law. It was created because of Enron’s document destruction, where they tried to destroy documents when they were being investigated by a federal agency. This was ultimately amended at the time. Nothing in this document destruction has anything to do with the events of January 6. Now, the U.S. Attorney General said, not very many people will benefit from this decision because not all people were solely charged under the Sarbanes-Oxley Act. The problem with that is anyone who was charged under the Sarbanes-Oxley Act alone, or even additional to other charges, will have to get those cases reopened or reheard. The problem, however, people who are charged, as the defendant was charged in this case with seven counts, only one of which was Sarbanes-Oxley, the question is whether this hammer of 20 years hanging over your head was used as a negotiating tactic to get people to agree to a lesser charge. Those cases need to be reconsidered as well. But it’s a big case, a big decision.
The Murthy case is the Internet case. It was a 6-3 decision which Barrett wrote, and Alito, Thomas, and Gorsuch dissented. It was brought by two states and five individuals who were social media users. The majority opinion written by Barrett found that they didn’t have standing. This is a disturbing case in some ways because there were about 20,000 pages and a 155-page district court opinion in lower litigation proceedings that clearly showed, and the majority opinion clearly indicates, that the Federal Government, agencies, and various branches did get involved in coercing or trying to influence the content of the social media platforms. However, Barrett’s decision ultimately found that they did not have standing. The states of Louisiana or Missouri never pinpointed when Facebook censored a political campaign. They had no specifics of a concrete injury, according to the majority opinion. Justice Barrett finally focused on a person by the name of Jill Hines, a co-founder of a health freedom organization in her state. She had multiple posts that were censored. She was deplatformed twice. Her Facebook pages were taken down. The majority said her facts presented a closer question. However, the majority said that the plaintiffs focused on past issues, and they weren’t requesting a prior censored post to be reposted by the private entities. They were also focusing on the government coercion. This was a real problem, Barrett wrote, because it is too tenuous between the governmental coercion, which clearly happened, and the actual censorship of the post. The majority said independent from the government, the social media companies had their own policies to censor, and you couldn’t tell whether they were censoring based on their own policies or government coercion. What Alito says is that doesn’t make sense, because the evidence shows that there was clear causal relationship between the government’s censorship pressure using Section 230 of the Communications Decency Act as a hammer—that ‘if you don’t do what we say, we will work to repeal that provision, and you’ll have legal liability immunity repealed. So, you had the highest levels of government putting pressure on the social media companies and telling them that if they don’t follow what the government demands, they will lose liability protection. There was a close causal relationship between the government’s intervention and the actions of censorship. Also, even though the social media companies did not have a policy when the government pressured them, they created policies, and then they acted according to those policies. This is a really disturbing opinion. In the opening words of his dissent, Alito wrote: “If the lower courts assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this court in years.” I agree with him. The problem is, where do you go from here? This case will create a significant evidentiary hurdle whenever you find the government coercing private entities to censor on social media platforms.
Now, contrast Murthy with the NRA case, a unanimous 9-0 decision. There you also had government coercion of a private actor against the NRA. The NRA raised free speech, and also retaliation against the Department of Financial Services in New York. The DFS did an investigation with regards to Carry Guard because of a complaint. Carry Guard was one of the insurance companies that was insuring policies that covered intentional criminal acts, which was a violation of New York law, and the NRA did not have the insurance producer license to promote Carry Guard. DFS came against Carry Guard. Carry Guard was underwritten by Chubb Ltd. and also by Lloyds. They discontinued the Carry Guard insurance coverage. But then the DFS continued to pursue the NRA. There was government coercion, and according to the Court’s prior precedent that goes all the way back to Bannon Books case, what the government cannot do directly, it cannot do indirectly by coercing or putting pressure on a private entity to take an action that it would be unconstitutional for it to do on its own. That’s exactly what happened in the Murthy case involving Facebook, Twitter, and YouTube, but the Court went in that case went the other way. This case involving the NRA, however, is completely opposite. I find it hard to reconcile these cases.
Just two other quick things. There are several cases involving both the Emergency Room Medical Treatment and Labor Act, and then also the FDA, in which the Court found that those plaintiffs did not have standing to bring the case.
I think you have two things coming out of this term. One, the Court is making it more difficult for individual litigants to come before the Court based upon standing in which the litigant must show a concrete injury, traceable to the defendant, which injury is redressable by the judicial system. Two—in the Netflix case—the Court is making it more difficult to bring what’s called a facial challenge as opposed to an applied challenge. A facial challenge is often a preemptive challenge to a law or policy when the law or policy has not yet been applied to the plaintiff to cause a concrete injury. An applied challenge is a set of facts in which the plaintiff has sufficient facts that the law or policy has been applied and has caused a concrete injury. Pre-enforcement challenges have routinely been brought against abortion restricting legislation before the law was applied to specific plaintiffs. Pre-enforcement cases will be more difficult going forward, thus making access to the courts more restrictive.
The Honorable Bill Lee
Governor
State of Tennessee
Thank you all very much. Glad to be able to address this important group. Last time I spoke, it was in DC. This is a much better venue. Thank you for coming here.
Let me just say, I’ve been doing this now for six years and we are at a really important moment in our country’s history. People will say America’s under siege. I would just say that we have, for generations, had to contend for this country and for her liberty, for her freedom and for what makes it the greatest country in the world, which it still is. We’ve had to contend for that and protect it, defend it, and make certain that what our founders knew—and what was the foundation for this country—remains that.
The reason I say that is because this organization and the people that are engaged in this have committed a large part of their lives to contending for that. The more I do this, the more I understand what it is we’re contending for. I also understand the forces that are working to break down those walls. But it’s an enormous honor for me to be able to take my place on the wall,
as it were, and to stand where people stood before me. To fill that slot and join hands with and stand beside people who have been here before me and who understand that we each have a real role, a real opportunity, and a real responsibility to hold that place for the next generation of defenders of this city on a hill that we contend for even to this day. I have great optimism about this country and her future, but I have clear eyes after being engaged at how important it is what you do and what we do to make sure that the next generation has that city to defend.
We’ve been doing our best here in Tennessee to create an environment where people can thrive. And, you know, government isn’t the answer. We don’t create a society. We create an environment for the people of this state to provide opportunity and security and freedom throughout this state. And in doing so, we join hands with other states across the country to move this nation in the right direction in spite of what might be happening in Washington, DC.
I chair the Republican Governors Association, and I have become very good friends with a lot of governors who join hands and collaborate and work together to move this country in the right direction. We push back, frankly, against the overreach of the Biden administration, and how they have tried to exert control and power over states, but we won’t let them do that. And we have worked together to make sure that they don’t.
My family came here 230 years ago, and so I don’t know anything but Tennessee. But I also know that it’s the best state in the country. I know you’re not all from here. And if you’re not from here, you know, you may be from a great state, but we’re trying to model what it can be—what it should look like—in this state. We don’t do it perfectly, but I tell people all the time, in my job, you do your best, you do what you think is right all the time. You don’t take yourself too seriously, and you recognize everybody’s not going to agree with you. But I have a conviction and a commitment to the values, the principles, and the ideals that our forefathers understood, and that we can continue to advance even today. We’re doing that in our state.
We are in a really good spot in Tennessee. We’re very fortunate—not because of the governor— because of the people of this state and a general assembly in the legislature who have for a long time understood that taxpayer dollars are our responsibility to steward, that we don’t have government money, we have your money, and we have an obligation to steward that money effectively.
We are a state with the lowest debt per capita of any of the 50 states. We have virtually no debt in this state. And we have one of the two or three fastest growing economies of all 50 states, and it’s evident when you look outside around here.
This is a fast-growing economy. We’re one of the most moved to states in America. 90 of our 95 counties had population growth last year. We have people coming here from all over the country.
I was at a dinner with my wife a few weeks ago. There were 10 people at the dinner table, and not one of them was born and raised in Tennessee. I looked at my wife and said, “Including you—you were not born and raised in Tennessee.” She didn’t like that, but she’s been here a long time. She’s bought in, for sure, as the first lady and the best first lady in the country. But we kind of went around the table, and this is the truth. The lady sitting next to Maria said that her family moved here from California, which a lot of people do. Multiple generations of her family had lived in California. She said, “But we moved. And when we moved to Tennessee, we felt like we had moved back to America.” And that is what you hope for when you’re in this spot that I’m in.
Maria and I, when we ran for governor, Julie Hannah was planning all of my stops with my 13-year old RV in 95 counties and 95 days. We had this little exercise where we would look at a mailbox and we would say, “I wonder what matters to the person that lives up that driveway. I wonder what matters to the person at that mailbox, that mansion, that trailer, that apartment. Wonder what matters to those people.” And we committed that we would say that to one another throughout the campaign.
I’d never been in politics before. I came entirely from the private sector, had never run for office before. I’d had a tragedy in my life, my first wife was killed, I had four little kids, and it just turned my life upside down. But God’s a redeemer, and he takes the most challenging things in our lives, and he causes them to be transformational, if we let him.
It was transformational for me to take a broader view of my life and what it ought to be about. I got involved in a bunch of work, took my kids to Africa, Haiti, and Mexico, and did a lot of mission work. Then I did a lot of work in non-profits here, besides my family business, which I loved and was engaged in. I saw it as a mission. We worked in the inner city with kids. That’s what developed a lot of my interest in education, education reform, and frankly, in school choice. Every kid including those in the inner city should have a choice, and we ought to give them that opportunity to have a free education.
I worked in a prison reentry program, and it gave me real insight. I got involved in public policy, and one thing led to another, and I decided maybe I should run. I did in part because of Julie. I’ll keep giving her credit for that. As we contemplated mailboxes, and now that I’ve been in this job for six years, I do have to remind myself over and over again, it’s still all about those people and what matters to them the most and how it is that we can create an environment that allows them to access the greatest amount of opportunity possible, how it is that we can do economic development and invest in infrastructure. We were one of only six states that had a surplus through the pandemic because of our fiscal policy. That allowed us to make massive and significant investments of the kind that government should be investing in and then not to bother ourselves with the things that that family and that mailbox don’t want us to be involved in.
They don’t want us to tell them how to raise their children or what to do with their income. They want us to keep from taking as much from them as we can as a government, which is why we ought to have low taxes at every level. They know better how to spend their money than we do.
That’s been our philosophy—keep focused on those mailboxes every day and make certain that we never lose sight of where we ought to be. Also, take stock of the principles and the values of liberty—religious liberty, educational liberty, economic liberty, medical liberty—the freedom that people should have, and that government should not infringe upon or encroach upon. I also think recognizing the dignity of every single person, whether they agree with me or not, knowing that they have as much value as one of God’s children as I do. As a person of faith, I have a roadmap about how to lead with conviction and without compromise and with a true standard and set of principles. At the same time part of that standard for me is laid out very clearly in scripture when it says that if I am walking the way I’m supposed to, then there ought to be fruit in my life that shows it—love, joy, peace, patience, kindness, gentleness, goodness, faithfulness, and self-control. If I can lead in a way that considers them, their dignity, stays firm to my beliefs and principles, recognizing that the founders and those before me that laid the foundational stones, that those are the values and principles that I am to adhere to as a follower of those who created this great nation, then I can lay my head down at night in spite of the agreements or disagreements and say, you know what, you did your best, you did what you thought was right every day. You didn’t think too highly of yourself, and I will know that then we will continue to advance this state forward, and be a beacon, be a light, be a partner, be an example, stand alongside the others in this country who recognize all that same thing about this incredible favor that we have been granted by the Lord to live in this great nation. And the incredible responsibility we have to sustain it and to contend for its sustainability.
I’m preaching to the choir in this room about all that stuff, but as I tell my kids all the time, you know, we should preach to ourselves. We should remind ourselves over and over again. We should wake up every day and remind ourselves what we know to be true or we will forget it. So many in this country have never known what was true because no one ever taught them, but we also do not remind ourselves. I say that as a reminder to me and a reminder to you that we have an opportunity to hold that spot. There is a next generation coming and they are the ones that will defend the city, and we will have done our job to hold our spot and contend for it. Thank you for letting me just thank you. Many of you who have been at this long before I ever was, you know these things I’m talking about much deeper in your heart than I’ve ever known them. I have come to a much greater awareness of them over the past six years. It’s the highest honor I’ve had to be in this spot, and I’ve got two and a half more years. We have a lot to do in the next two and a half years, and I think this country is about to take a really nice move in the right direction. That’s going to be fun for the next time. Thank you!
Scott Walter
President
Capital Research Center
Thanks so much. It’s always an honor to be here. And if you like the talk, you’re welcome to get the book, Arabella, that we just put out. The subtitle of this talk is The Soros Factor, and what we really mean by that is the Left’s money. Because remember, the Left is the party of the rich. It’s very important to say that because it really upsets them. Now, on the one hand, it is true that Mr. Soros is absolutely as bad as you think he is. But on the other hand, you have to understand that the Left has a lot of Soroses. At Capital Research Center, we specialize in tracking their money and reporting on it.
In the afternoon, I’ll be on an action panel talking about related things. One of the “lefty money networks” that is very important for, for instance, the recent campus insanity, is the Tides Network, an old dark money network on the Left that is probably the network most mixed up in that particular craziness, and we’re going to talk a lot more about that in the Action Session and what can be done about it. But you need to know that there is another, and much bigger, dark money network on the Left, the Arabella Advisors network.
How many people have heard of Arabella? Okay, that’s awesome. You are an impressive audience. I can tell you, I’ve been in front of lots of states’ Attorneys General in the country and had two hands go up. So, you’re much sharper than a lot of folks. For my little talk here, I’m going to give you a quick outline of Arabella, because they are so important to the way the Left operates. And yes, Mr. Soros does give them a lot of money; so do lots of other billionaires. So the talk’s going to be simple. Their size in money, what they fund, who funds them, how the money flows through the network, and what can be done about it.
As far as the size goes, that will blow you away. In the 2020 cycle, the non-profits in this network—which also has a for-profit—the non-profits in the 2020 cycle took in $2.4 billion. That was more than the DNC and the RNC by far. Now, you might think in 2022, that’s an off year, so surely they’re going to go down a little. Wrong. Not $2.4, $3 billion for the ‘22 cycle, just for their non-profits. That, to put it in perspective, is more than the DNC, the RNC, the Republican Senate and House committees, the Democrat Senate and House committees. It was more than that by half a billion dollars. Okay? So that’s their size.
Now as far as what they fund, that’s real simple. Everything Left. They are especially keen on everything environmental. The founder of Arabella began life as an environmental wacko, you could say. They are also probably the biggest funder of abortion advocacy in the country. And by the way, I bet nobody knows what billionaire is the main funder of that. Warren Buffett. They also have set the entire regulatory agenda for the Biden administration. That’s an amazing story of a secret little think tank they set up beginning in 2019 before the administration was even sworn in. That, to be fair, was entirely funded by Soros. They are some of the biggest boosters of Medicaid expansion in the country, one of the biggest funders of state ballot initiatives across the country. And yes, if you’re wondering, are they funding those Ohio abortion ballot initiatives? Absolutely. Biggest funder for that. They are also one of the biggest 501(c)(4) funders for House and Senate races in the country. And, a particularly obnoxious and egregious thing, everybody here, I’m sure, has heard of ZuckBucks. But did you know that Arabella advisors added $25 million from their network on top of Zuckerberg’s $420 million in the 2020 ZuckBucks scheme? They also, by the way, continue to work with the newest variations on ZuckBucks that are being launched.
Next, we have who funds them, and that, too, is a really simple question. Everybody on the Left, pretty much. Yes, Soros, but also Soros’s donor cabal, the Democracy Alliance. That’s about 100 billionaires and centimillionaires. The Gates Foundation is one of their biggest donors, mainly for health policy fights that Mr. Gates wants. I will say that we can be happy that they’re not always doing well. In a minute, I’ll explain some of the attacks that have come to them, but additional funders to them include lots of foundations. Ford, MacArthur, et cetera, et cetera.
Especially notable among their billionaire funders is a guy named Hansjörg Wyss. How many have heard of Wyss? Not many, and that’s a shame because he was, as far as we can tell, the original sugar daddy who helped launch this network. The first year their non-profits took in more than a million was 2008, when they took in $1.7 million. A million of that was Hansjörg Wyss. Now, he is a Swiss national. He is not legally allowed to mess in American politics at all. Originally, he was dumb. You’d think a guy like that could have hired some lawyers. He was stroking checks to people like your friend Dick Durbin and one of the Udalls, also Inslee, who was then in Congress and now, of course, is Governor of Washington. Alas, the statute of limitations expired on that wildly illegal funding before anybody found it. But Wyss got smarter, and he started sending his money through the Arabella network, because the law is very hazy and unclear on that. If I’m a foreign national and I write a check to a 501(c)(4) and then the (c)(4) takes the money and gives it to a super PAC, is that illegal? That’s not really clear. It is illegal if I write the check straight to the super PAC, but if I launder the money through Arabella’s (c)(4), maybe not.
There is a great FEC General Counsel report about this that’s very damning. The report of the general counsel of the FEC suggested that both Arabella and Mr. Wyss should be in a lot of trouble. But as we all know, the FEC exists to do nothing. And it did. The good news, on the other hand, is that the House Ways and Means Committee has taken an interest in this, because here’s the money number from Mr. Wyss. He has given Arabella’s network a quarter-billion dollars over this last decade and a half. He’s also given a quarter-billion dollars to other Left-wing non-profits over the same period. I was just talking to the Ways and Means Committee again, because I’ve testified to them and briefed them on all sorts of bad lefty financing, and they’re very interested not just in Mr. Wyss, but also in the other folks who end up being tied to the funding of terrorist-supporting groups.
How does the money flow through this Arabella Network? The easiest way to understand it is to think of a pyramid. At the top of the pyramid, you have Arabella Advisors LLC. That is a for-profit Beltway Bandit consulting/PR firm. It creates and operates everything below it in the pyramid. In the middle of the pyramid, you have the half-dozen non-profits, both (c)(3)s and (c)(4)s, that Arabella Advisors technically “manages.” That’s where the money comes in. That’s where a Soros, a Gates, a Zuckerberg, writes checks to those non-profits. Then at the base of the pyramid, they have what you see, what ordinary folks will see, and that is over 500 fake pop-up groups that Arabella will create as needed, and they have wonderful names. Keep Iowa Healthy. Secure Michigan Elections. Floridians for a Fair Shake. They want you to think that this is your neighbors who are upset about something, when in fact some dork in a DC office was handed a new accounting code, and he set up a website and maybe bought some Facebook ads.
One of my favorites is the Center for Secure and Modern Elections. Doesn’t that sound good? Who’s opposed to secure and modern elections? But actually, that is a Zuckerberg 2.0 entity. That is to say, the main (c)(3) charity that got most of Zuckerberg’s money—about $350 million, plus $25 million from Arabella—that non-profit is now working on new Zuck Buck-style efforts. And surprise, there are not one but two Arabella pop-up groups, those fake groups, that are partners with it. Here’s their scam: Although 28 states—including every state where I testified—have passed restrictions on Zuck Buck-style funding where you give private money directly to a government election office, the Left did not give up, just because 28 states said, “Oh my God, this is outrageous!” Of course not. They came up with new ideas. So their scam now is, “Join our Alliance for Election Excellence. And then we won’t write you a check because that might be illegal. Instead, we’ll give you scholarships and credits that you can use at our wonderful partners like Arabella’s Center for Secure and Modern Elections.
Is there anything we can do about all this? Well, first of all, what we are doing right now is actually one powerful way to fight back. And here’s why. If you think about it, Arabella is really a Wizard of Oz operation. The Wizard of Oz is really scary when you first see him. Big and powerful. But then the dog pulls the curtain back and you just see it’s some old guy with a microphone. Well, do you think Dorothy is very intimidated by the wizard after that? The wizard’s power tends to evaporate.
It’s not simple to keep people educated on this kind of thing, and let me urge you to go to InfluenceWatch.org, our Wikipedia of the Left website. When you expose them, their power is greatly diminished. And I will say even the mainstream media at this point—The New York Times, Atlantic, Politico—are beginning to be honest about them. So we’ve seen some real progress on this front. Thank you so much.
Jonathan Turley
Author
The Indispensable Right
Thank you, thank you very much. I am taking offers for arranged marriages for either son. I’m willing to do a bulk deal if you want to do that. I have to say, I just saw Tom recently, we spoke together, and you know Tom is an amazing force of nature. I don’t think anything has ever gotten a rise out of Tom. He’s the most fearless fighter I know. He proved it in our last speech because he did the entire program just after he had a root canal. He would have to go up to his room occasionally and try to take medication. So he was tripping the light fantastic, and yet you wouldn’t have known it. But also getting an invite from Tom is always fun because he just sends you a FOIA. He just says, “Are you or have you ever been committed on this date?” So it’s always fun to receive.
I didn’t know what to make of this because I’ve been covering President Biden and the 25th Amendment issues. And then Amy sent this thing saying, “We’ve decided you’ll speak for 15 minutes and then walk 10 feet over and sit down, and then a friend of yours will ask you questions.” I didn’t know if this was the Biden effect or not. I was waiting to get a column from George Clooney saying maybe Brian Kilmeade should do the speech.
I’m here to talk to you just briefly about the book The Indispensable Right: Free Speech in the Age of Rage. The reason I named it Indispensable Right is because that’s a quote from Louis Brandeis in a famous case. The strange thing is we all agree that this is a right that is indispensable, but not why. Even to this day, we still struggle with what free speech is. We still struggle with when to protect it. We are living through the most dangerous anti-free speech period in our history. The question is why—why a country defined by free speech should still struggle so many years later with what it means?
What the book suggests is that at the beginning of our Republic, the most revolutionary part of the American Revolution was what was ultimately expressed in the First Amendment. Those simple words that Congress cannot abridge—free expression. There had never in the history of the world been a Constitution that recognized that right, and that said it so simply, so succinctly, so clearly. You just can’t do it. Hugo Black said, “I take no law abridging to mean no law abridging.” It was the best line ever issued by any Supreme Court justice. What happened is that we had a moment of clarity at the outset of our Republic in which the Framers, but also the people that influenced them, spoke of free speech as a human right, a right that was received from God, not from your government. It was a right that adheres to you as a human being, that indeed you can’t be entirely human without expressing yourself, without projecting part of yourself into the world around you. The book looks at this, that we are physiologically hardwired for free speech. If you’re denied free speech, studies of prisoners, explorers, have found that parts of the brain actually shrink if you’re denied the ability to speak.
However, that moment of clarity was lost within a few years of the American Revolution. They adopted what I call a functional or instrumental approach to free speech. Free speech is protected because it makes democracy better. That’s certainly true. It certainly does that, but it’s so much more. If you say that you’re protecting free speech because it’s good for democracy, it means that some speech can be viewed as not so good for democracy. Some speech can be viewed as low value speech, disinformation, misinformation, malinformation.
The book also looks at rage. Rage is part of our country. This country was born in rage. That’s what the Boston Tea Party was. It was a moment of rage. We celebrate it because it was the rage of a people who wanted to be free, but we have struggled with what I call rage rhetoric. Throughout our history that rage rhetoric often became state rage as the government targets people, arrests them, silences them, and so we have to come to grips with rage. The fact is we are living through an age of rage, as I’ve said many times, but it’s not our first. Also, people like it. They don’t want to admit it, but they like it because it’s liberating. You can do things when you’re enraged that you wouldn’t do otherwise. But it’s also contagious. It’s addictive. When I came out of that courtroom in Manhattan in the Trump trial after the verdict, I saw in the most chilling way the face of rage. People dancing, singing in the streets of New York. They loved it.
I want to read something to you. We hear today accounts from Rachel Maddow that the Supreme Court just green-lighted death squads. You had others saying that if Trump is elected, journalists and gays and lesbians will be quote “disappeared” in the rising rage of these commentators. I want to read you something. “If this election,” this is about the outcome of the election, “murder, robbery, rape, adultery, incest will be openly taught in practice. The air will be rent with the cries of the distressed. The soil will be soaked with blood and the nation black with crimes.” How about this? “What will follow? Chains, dungeons, transportation, and perhaps the gibbet will become the norm. Opponents will be instantly put to death.” Does that sound familiar? That was from 1800. The first one was a quote from a Federalist newspaper, and the second one was a quote from a Jeffersonian newspaper. Now, the reason I mention this is that every generation has a certain conceit that they’re facing problems that no generation has faced before. And therefore, the Constitution is at fault. There’s an anti-free speech movement across the country. One of my colleagues is leading a movement to amend the Constitution to specifically change the First Amendment so that free speech can be curtailed by equity. Her argument, and this has been praised by NPR and other sites, her argument is that the First Amendment is quote, “excessively individualistic.” Georgetown professors wrote an op-ed saying, “We have to get beyond constitutionalism.” A Michigan law professor says, “We have to get beyond rights and rights talk.” That’s the movement that we’re facing. And every one of them suggests we have to get rid of the Constitution because no one has faced what we face. One of the things I say in the book is that these very terms were used at the beginning of the Republic, including terms like “false news” was actually used extensively during the 1700s and 1800s. I testified once in Congress, and this member said, “Professor, before you start talking about the framers again, understand they weren’t in this environment where people are talking like they want to kill each other. That’s what we live with.” And I said, “With all due respect, they were actually trying to kill each other. I mean, that’s what the Alien and Sedition Act was. They were trying to kill each other. You know that, right?” But every generation is saying that what we’re facing is different.
The comparison between the 1800 election and the 2024 election is chilling. Jefferson ran on free speech to restore it after the Adams administration had cracked down on his critics. Jefferson ran on how the criminal justice system was being used to target political opponents. Does that sound familiar? Joe Biden is the most anti-free speech president since John Adams. We have a censorship system that was described by a federal judge as Orwellian, and the President has doubled down. He just hired another a pro-censorship figure, brought him into the White House. Tomorrow I have a column coming out about the GARM system.
You see, before Elon Musk bought Twitter, I would testify often in Congress and they would say, “You don’t have any proof of coordination. You keep on talking about a censorship system. Where’s the censorship system?” And then Elon Musk bought Twitter. And I say in the book, Musk’s contribution to free speech is unparalleled. When he ordered the release of the Twitter files, we had all the proof we needed. It was worse than we thought. And we found out there was not only close coordination and targeting of citizens, but we then found an extensive array of grants going to academic institutions that would target, blacklist, throttle dissenting views. That includes scientists who spoke against aspects of COVID. I spoke at the University of Chicago recently and the front row was composed of many of the signers of the Great Barrington Declaration. They were stripped of their positions, dumped from associations, denied publications, and they were proven right. Federal agencies are now saying what they said in that document. I asked them, “How many of you have had your positions restored?” None of them, and they’re still treated as persona non grata at their schools. We have this massive alliance—and one of the reasons I’ve said that this is the most dangerous anti-free speech period in our history is—we’ve never faced an alliance like this. We’ve never had the government, corporations, academia, and the media aligned against free speech. What we’re learning is this GARM movement—the Global Alliance of Responsible Media—it’s just the latest disclosure that we have found in the censorship system. The Left has been very, very sophisticated in this. It’s ironic. You know, these are the people who were targeted during the McCarthy period. They were targeted, arrested, blacklisted, and yet they are now using many of the same tools, but they have been successful to a point that McCarthy couldn’t have dreamt of. One of the more sophisticated things they’re doing is they’re threatening the revenue and advertising sustaining sites. They’re trying to strangle, financially, sites that have dissenting views. I was one of the first to write about the Global Disinformation Index, which was one of those sites, which identified the most dangerous sites in the world. It turned out that all 10 were conservative and libertarian sites. I’m sure that would be surprising to you. By the way, the 10 best included sites like Huffington Post which was deemed reliable. When a couple of us wrote about the GDI, the Biden administration immediately shut it down. As we’ve seen in various other cases, they just shifted. It’s like whack-a-mole. They just shift it to somewhere else. In fact, GDI was shifted to GARM, which is GDI on steroids. They are now organizing advertisers to cut off all the funding to many of these sites.
So, the question then becomes, what are we going to do about it? The Supreme Court decided that it was not going to do anything about it. That leaves it to us. You see democracy is not on the ballot, but free speech is. One of the things I’ve encouraged Donald Trump to do is to make free speech an issue in this election. Make Joe Biden defend the last three years. Let him tell the American people that you should be censored. Because here is the thing: this isn’t a popular movement. It didn’t come from voters. It came from higher education, and it’s metastasized in the political and media elite. The public doesn’t support censorship, it never has. And there’s a reason to be optimistic.
I was asked by someone, “Could you say something positive, because everything is so depressing?” And I feel like I’m in the position of Woody Allen when he says, “I have nothing positive to say, would you accept two negatives to make a positive.” I’m going to give you two negatives to make a positive. The first negative is that the vast majority of media, press and pundits, are saying that democracy is dying, death squads are coming, and people will be disappeared. The second negative is that this President, the Democratic Party, and many others, have said that free speech is the thing that harms us the most, that it’s the threat to who we are, not the thing that defines us, but our existential threat. Now, why would those two negatives make a positive? Because no one believes them. That is, as they state these two negatives, the public knows, and this is why I remain optimistic.
You see, there’s a certain value to believing that free speech is a natural right, a right given by God to every one of us that can’t be denied to us. It’s not dependent on the government. It’s what makes us human beings. There’s a certain optimism which comes with that. It is more liberating than rage. Because if we’re right, if we’re hardwired for free speech, if it’s in our DNA, it can never really be extinguished. You can have a massive censorship system like we have today, and it might reduce our appetite for free speech, but we’ll never quite lose our taste for it because it’s part of being human. And so, what’s really the optimistic thing that we learn from ourselves, that we can teach each other, is that we are in an age of rage. But the rage doesn’t define us. Free speech defines us. Thank you very much.