looked, and our Democratic candidate has raised over $20 million. And by the way, it's not entirely unprecedented that Allen West, that lunatic congressman from one term from South Florida, Allen West actually raised $14 million. No, I think actually it's closer to $20 million for his campaign, and he did that largely almost entirely from small donors. In his case, it was a direct mail. In Asup's case, it's by Internet ads. But in any other case, what you're seeing is something that we ought to cherish, which is the fact that people are putting where their hearts may be, and they're putting their money behind it. They're putting their money behind their hearts. That's an interesting development, which bodes well for progressivism and for democracy. If there is a way forward out of the oligarchy, out of the putocracy, out of the control that rich people, the national corporations have over our political system, it's if we see one candidate after another after another, who has nothing to anybody but the voters. Has it ever been illegal for out-of-state businessmen to contribute to a congressional candidate? In other words, it's against the law for Putin to finance a presidential race. Could it ever be or was it ever illegal for somebody in New York to fund a congressional race in Florida? I can't claim to have encyclopedic knowledge of that, but my understanding is that in state races and in local county type races, there have been restrictions on out-of-state money. I don't remember seeing any kind of restriction like that in house races, and frankly, I'm not sure that it would be constitutional, given what the Supreme Court has said about that. The right that you have according to the Supreme Court to spend your money to participate in elections would not necessarily be restricted to your own personal geography. But that would be a solution, wouldn't it? Yes, but if the Supreme Court says for better or for worse, the Supreme Court says that David Koch has the right to influence congressional and Senate elections, they're not just talking about congressional and Senate elections in his state. They'd be talking about congressional and Senate elections all around the country. If you think of that as a constitutional right, it's an American constitutional right, not a Kansas or Californian or New York constitutional right. People have questioned whether it is a constitutional right at all, but once you reach that threshold, it seems like you'd need some kind of national role, not a state-by-state role. I think I read that a local affiliate down in Georgia had to add an extra half hour of their news to accommodate all the TV advertising that's coming from the two candidates. Did you hear something to that effect?  If I recall correctly, Allen West spent $6 or $7 million in his house race on TV, so that doesn't really surprise me. What surprised me and what disappoints me is the kind of ads that we're seeing run. The other side started early making ad hominem attacks against the Democrat. They're particularly enamored of a clip from when he was a college student that shows him dressing up as a Star Wars character. He's 30 years old now. On the other hand, when you look at the ads that our side has run against, Karen Handel, who's the Republican candidate, they're really meek. They're not very persuasive. Karen Handel was Secretary of State in Georgia and instituted a brutal voter suppression program that was so bad that the Department of Justice had to get an order against her to make her stop. She stole votes from tens of thousands of Georgians before they stopped her. She would send out letters to people claiming they were not citizens, when in fact they were. This is related to the national cross-check program that has stolen votes from millions of people around the country thanks to Republicans. I haven't seen any ads about that. Karen Handel was also the number two person and the author of the policy at the Susan G. Komen Race for the Cure organization, an organization that exists to fight breast cancer when she cut off the funding to plan parenthood from the Komen organization for breast cancer screenings.  What was her title with Susan Komen? Second in command, she was Vice President and she was Vice President for policy. When The Atlantic and Slate magazine looked into this, they found that she was the author of that endeavor to cut off funding for Planned Parenthood. They asked her why she said because Planned Parenthood as an organization is pro-choice. They said, well, that's not the point.  That's what your organization exists for. She said, well, that's against my convictions. The Komen organization reversed that policy after four days because of the enormous uproar against a cancer organization not giving money to fight cancer. She resigned in disgrace. Again, a very compelling story, one you could tell in 30 seconds. I just did tell it in 30 seconds, but that's not what the ads are. So what I'm worried about is that we're spending a staggering amount of money. The other side knows how to go for the jugular and apparently we don't. How does it look so far? Ossoff seems to be ahead in the polls. I think it's really, really close and I don't think that's how I read the polls. There have been 15 polls done so far heading back to March where they're head to head. There's only two candidates left on the ballot. There's no third party candidates. Ossoff, Handel, and that's it. And in 13 of those 15 polls, undecided held the balance. In other words, neither candidate reached 50% plus one, neither candidate. In two of the 15 polls so far, Ossoff had a majority of 51%. So neither candidate in any poll has reached 52%. That's pretty close. This is a district I think Romney won by 22 points over Obama. So it is a red district. Is it still considered a red district or is it what they call them purple? It's purple according to the last presidential election. If I recall correctly, Trump won it by two. And with early voting ending on Friday, would you think that the news is helping Ossoff? What do you mean by the news? The stuff that's coming out with the special counsel and Trump, would you say that the voters who are voting early are turned off by Trump? Well, I'm worried about the fact that Clinton came very close to knocking off Trump in this district before all of the revelations about Russia and Trump's potential collusion with the Russians to try to swing the election in exchange for releasing sanctions against Russia and everything else he will have to live through for the last five months. And despite the utter misery that the Trump administration has inflicted on America and in part on itself through his shenanigans, nevertheless, it's still a close election. The nationwide polls lately seem to indicate that the Democrats have something like a six or seven point lead nationally. Based upon the fact that he's already turned into possibly the worst president for a lifetime, maybe we should be looking at a 15 point lead. I don't know if John's going to win or lose. I just don't know. I definitely hope he wins, but it's disconcerting to me that it's even close. Right. In terms of the narrative, and I hate to bring that up, but if it's close, it doesn't mean anything. If it's a blowout, then Trump isn't a lot of trouble, right? Then he starts losing all the Republicans who march in lockstep because then they start fearing for their jobs. Well, I think that a win for the Democrats, significant regardless, and I'll tell you why, because of gerrymandering, Trump won 230 districts. You need 218 districts for majority of the house. There's 435 of us. If the election were held and the exact same results came in next year as occurred last year, then the Republicans would win 230 seats and the Democrats would come up 12 seats short of a majority or 13 seats sort of majority. If we take a seat from them that they won last year, a seat that not only Tom Price won as the incumbent congressman, but also Trump won by a narrow amount, whether it was 2% or 1%, whatever it was, then they start to say, well, we don't have much of a margin for error here. We need to hold on to those 230 seats. We start to give seats to them that we won last year. That implies that not only are some of us in danger, but it also implies that we might lose the house. Even a narrow victory in a seat like this is somewhat significant, but a blowout would be catastrophic for them, because if the electorate has moved, let's say 10% from last year to this year or from this year to next year against them, they'll definitely lose the house. I was warned that there would be math involved. Let me go back to the 2016 election results. Are you saying that the political will was there for Trump? In other words, that the if you look at the congressional results that even though he lost the electoral college, there was still a political will for Donald Trump and the Republicans in the last election. Because of gerrymandering, even though Trump lost the popular vote by three and a half million votes or something approaching that, nevertheless, the Republicans won 230 congressional districts. Only 218 are enough for a majority. Right. Because of gerrymandering, the Republicans have a built-in advantage in the House of Representatives that amounts to something like 12 seats. It's my understanding that in the past, the Republicans have won the House, but lost the popular vote for the House. But this time around, they won the House and the popular vote for the House. I would have to look that up. I don't remember. The premise of your question is correct though. There certainly have been times that they've won while losing the popular vote. I think that happened, for instance, in 2012. Right. But it does speak to your concern that Trump is still more popular than he should be. Yes. I mean, for goodness sake, I don't have to tell you the things that we've had to live through since January 20th. It's been a nightmare. I mean, just the specter of a president colluding with the foreign power and offering them favors in order to be elected, just the specter of that is shocking to most people. And then beyond that, the things that Trump actually has done in office. I mean, he has cheered on the House to pass a bill that denies health coverage to 30 million Americans and kill roughly 300,000 of them. That's a horrific number. He said it's mean. Yes, but he held a signing ceremony without actually signing it on his lawn. He invited the Republicans over to the White House to cheer the fact that passed what he now describes the mean bill. He's betrayed our allies. He's tried to provoke a war with North Korea. He stole the Supreme Court appointing from us. He is brazenly violating the Constitution by taking money from foreign governments in his personal business affairs. He wants to hand trillions of dollars in tax breaks to himself and to what he obviously considers as a needy rich. And he wants to deport children from this country who literally can't remember living anywhere else in their entire lives. Not to mention the fact that he wants to legitimate and institutionalize racism and bigotry with his wall between the United States and Mexico and his ban on travel from Muslim countries. Is Karen Handel distancing herself from Trump? She invited him to the district to campaign with her and she also did a fundraiser with him. Is gerrymandering constitutional? The Supreme Court on Monday said that it would consider whether or not partisan gerrymandering violates the Constitution. I guess there's such thing as racial gerrymandering that they've said violates the 14th Amendment. What is the difference between partisan gerrymandering and racial gerrymandering if the Republicans are the party of racists, wouldn't partisan and racist gerrymandering be the same thing? Well, in my opinion, the Constitution should be read as prohibiting gerrymandering in all forms, including political gerrymandering. The distinction that you're referring to is the fact that long ago the Supreme Court decided that you could not draw the lines in such a way so that you excluded African-Americans or other minorities from representation. So, I mean, to give you an example, let's say you have a state that is 60% white and 40% African-American. Actually, I just described Mississippi more or less. Those are not too far from the real numbers in Mississippi. The Supreme Court said you can't draw, let's say, five different districts in a state like that. Every single district has exactly 60% whites and 40% African-Americans because the whites may band together and you'll end up with five white congressmen and zero African-American congressmen instead of three white congressmen and two African-American congressmen. So, you now have to draw the lines in such a way so that you dilute the minority vote to the point where people can no longer choose to be represented by their own group. The Supreme Court decided that a long time ago. That was a long-standing Supreme Court precedent. The Supreme Court has from time to time rejected the idea that it is going to stop congressmen or state senators or state representatives from being directly under the base of a party. So, let's say you've got a state that is 60% Republican and 40% Democrat. According to law up to this point, and we'll see what the Supreme Court decided within this new case, but according to law up to this point, if that state has five members of Congress, it would be constitutional for the Republicans to draw the lines in such a way so that every single district is 60% Republican and 40% Democratic. And you end up with five Republican congressmen and zero Democratic congressmen. In fact, that is essentially what they've done in Michigan, in Pennsylvania, in Wisconsin, in several other states. I mean, to be fair about it, that's pretty much what the Democrats have done in Illinois. But the Republicans they indicated before have a built-in advantage in the House of Representatives because of the net effect of gerrymandering in the two dozen states that they control, where they control the entire state legislature and they also have a Republican governor. So, what was the constitutional amendment that you introduced? I introduced the first constitutional amendment to actually ban political gerrymander, to say that you can't favor one party or the other. The reason why I was familiar with that is because I helped to enact the Florida state constitutional ban against political gerrymander. I was the first large personal donor to the effort to put that on the ballot. And the Florida voters in their wisdom by 63%, 37% decided to end political gerrymandering in Florida, as well as any other form of gerrymandering. We did that by amending our state constitution. So, what I did was I took the successful state constitutional amendment that had passed with my help. And I put it in for, I suggested that we amend the national constitution in exactly the same matter. How do you solve the issue of gerrymandering other than electing every congressman at large and giving up constituent services? I'm wondering if that's not the worst idea. How important is constituent services? It's not bad. It's that that actually facilitates the result that I just described. If you've got a state that is 60% Republican and 40% Democratic and all five members of Congress in this hypothetical state are elected at large, then for sure, since that state 60% Republican and 40% Democratic, all five members of Congress from that state will be Republicans. And in fact, at large representation is one of the tools of gerrymandering that the just department has struck down in many places around the country, including one of our counties in my district. There was an at large selection of county commissioners in my district, in one of the counties in my district that was struck down as being unconstitutional because it diluted minority voting. This requires a lot more time. Well, sure, but I'll just tell you that it's painfully simple. The voters should choose their elected officials. The elected officials should not choose their voters. There it is in a nutshell. I believe Eric Holder and President Obama are dedicating much of their career now to the 2020 census and gerrymandering. We're hearing a lot about civility after the shooting last Wednesday. The issue was we have to dial back the rhetoric. Was that your first reaction to the shooting that we need to watch what we say? I don't think this shooting was motivated by rhetoric. The shooting was motivated by lunatic taking gun and shooting at people. I don't think that the actions of a crazy person are somehow attributable to the actions of rational people who are making persuasive cases in the body politic. I don't think there's the same. I don't think so. Tom Brokaw was on Meet the Press yesterday saying the problem is we just don't know how to communicate with one another anymore. It's infuriating to hear that, isn't it? Let's look at the unibomber, okay? This is a case that most of us ruin. It's a unibomber. Do you think the unibomber was motivated by a lack of political civility? I don't think so.  The pulse shooting in Orlando. 50 people died in a matter of minutes. Do you think that was motivated by a lack of political civility? Right. It was motivated by easy access. A lunatic with a gun. That's right. A lunatic with a gun that shot very quickly. Now look, as I said at the time, you can't control what's in people's heads, but you can control what's in their hands. And I don't think that pearl clutching about political discourse is the answer to all of our problems. Steve Scalise, what's in store for him now? Because we moved on past Gabby Gifford. You know, he was shot in the hip. He's got years of rehabilitation, but we're going to move on. What's in store for him for the next couple of years and his family? Well, already a great tragedy, of course, needless to say. I mean, in Gabby's case, it was blistering because, you know, those of us who are newer, and I knew her quite well, her office is directly above mine. We used to often bump into each other as we were walking across the street to vote. We served on the same committees and on the same sub-committees together in Congress in my first term. You know, Gabby's never been the same and never will be the same. I'm going to ask you a rude question. It's not an attack on Gabby Giffords. It's an attack on the system and why it is the way it is. She was shot. She had political capital when she returned to Congress. She used her political capital, as I recall, to convince Republicans to raise the debt ceiling. She got a standing ovation and I remember watching that thinking LBJ used the Kennedy assassination. He had political capital. He used that to pass the civil rights acts. Some say Kennedy had not been assassinated. Johnson wouldn't have had the political capital to do that. Gabby Giffords had the political capital and she used it to raise the debt ceiling, not speak out on gun control. Why? Gabby started an organization called Citizens for Responsible Solutions. After she quit Congress? Yes, that's entirely dedicated toward gun safety and actually promoting and assisting pro-gun safety candidates. But why could she not do it? That is her issue. But why wasn't it her issue? And again, I don't mean to be disrespectful and I know she represented a district, a pro-gun district in Arizona. That's correct. But why can't a congressperson have a come to Jesus moment while they're in Congress? Why does it have to happen after? It's not really that way. I mean there are members of Congress now who are outspoken proponents of gun safety.  They don't get a lot of air time because that's not the way they do their work. But there are people who are outspoken advocates for gun control and against assault weapons, for instance. And frankly, after the pulse shooting, I was one of them. I mean, I was on national TV a number of times explaining what I just explained to you, which is that it's far easier to control the weapon in people's hands than the ideas that float into their heads. So I think such people exist, such members of Congress exist, and it is not exactly a forlaw and cause. I mean, we had a 10-year ban on assault weapons in the United States, just simply wasn't renewed. So it's not impossible that such a thing would happen. It's harder over time, I think, but unfortunately, the tragedies keep coming. And the political will within the NRA is for an assault weapons ban. It's run like the Politburo, the NRA. I believe me. I think it's worse than that. During one of the recent election cycles, the NRA did not endorse a single Democratic candidate for Congress in the entire state of Florida. We have 27 districts in Florida. You think they could have found somebody they liked? I mean, basically, the NRA is the sort of the gun arm of the Republican Party to whip up the public to take extreme positions in favor of the Republican Party. It's an entirely partisan organization at this point. The NRA represents gun manufacturers, not sportsmen. Well, if you look at where their money comes from, that seems to be correct. But their motivations, whatever they may be, don't really account for the harm that they do. The harm that they do is reflecting the fact that every year, we have some five-figure number of deaths in the United States that are directly attributable to the firing of a firearm. People in Congress know this. Mike Thompson, who's a congressman in California from Northern California, has been making an issue of this for years. He's not the only one. Sometimes it's somebody like Mike who represents a suburban district. Sometimes it's somebody from an urban district. One of the members of Congress from Chicago has been extremely outspoken against assault weapons because of a huge number of gun deaths in Chicago in the last few years. So, we come to these views from a variety of different places, but what we all know is that these lives could be saved. I'm being told on the congressional election in Georgia's six that the Republican congressmen are watching it because if John Ossoff wins, it's going to scare all these Republican congressmen. And they're going to turn their back on Trump because the way democracy works is Congress people are always looking at for themselves. That's the beauty of the system. And I think if I'm a congressman, especially a Republican congressman, I don't care if I win or lose because if I lose, I'm going to go get a great job over at K Street and become a lobbyist and get even richer. I'll cash out. How many of these Republican congressmen are afraid of losing their seats? Well, the answer to your question is 50. It's not 50. It's funny because if people think politicians never answer questions, I just did. Yes. How many of them? I said 50. Not 49. Not 52. The answer is 50. There's a lot of math on today's show. My head is spinning. Yeah. There's about 50 seats where you can picture in a wave election that the Republican candidate would lose. There's something called the PVI. It's Charlie Cook who's a political consultant created it. And basically it mixes together the results of the last two presidential elections. It's called the Cook Partisan Voting Index, which is abbreviated as the PVI. And the theory is that if the PVI in your district is heavily Democratic, meaning that twice in a row, the Democratic presidential candidate won, or heavily Republican, there's no particular reason why the votes can be different for you. Because in most cases today, people don't know their Congress. And in fact, in most cases people only know the Vice President is. They'll go look it up. You'll find that that's the case. So if you're talking about like, you know, the typical district, people tend to vote the party rather than a specific candidate for Congress. And I think that's true even now. I mean, I think most people meet Ossoff-Handel race who are not voting for Ossoff-Handel. They're voting for the Democratic Party or the Republican Party. They're voting for the Trump Party or the anti-Trump Party, as the case may be. So if you're in a district like Jose Serrano's, where in the last two presidential races, the Democratic candidate won by 44 points. That's an actual number, by the way. In the Jose Serrano's district, which is a Hispanic district in Manhattan and the Bronx, the Democratic candidate won by 44 points. You're just not going to lose. The only way you lose is if you don't run. You don't get the nomination. But whoever has the nomination is done. And you know, the same thing is true on the other side. There are districts in Texas and Georgia and Utah and Alabama and Tennessee and Oklahoma, where the nomination is what the race is all about and the race is over way before November. Whoever is the Republican nominee is just going to get into Congress the next time. There's just no two ways about it. So there's only about 50 Republican members of Congress who are in districts that the Republican presidential candidates won by less than 10, or they won by less than 10. That's pretty much the sort of mental dividing line. If you're a member of Congress and you won by double digits, you don't think too hard about whether you're going to win next time or not. If you won by better than 55 to 45, you don't think too hard about what you don't worry too much about it. And the same thing is true on both sides in that regard. We tend to take seats that are less than r plus five. They tend to take seats that we have when they take any seats of ours that are less than D plus five. My seat was a D plus six seat when I had it. Originally, when I ran for Congress, I ran a Republican district in 2008 and I won. I snatched away a seat from them that was an r plus five seat, which was a tremendous coup. My district had not had a Democrat in Congress for 34 years when I won it. That's how stable it was as a Republican district being an r plus five. That's sort of how it goes. There are 50 Republican members of Congress who are keeping an eye on the polls, raising whatever money they can from lobbyists and rich people and multinational corporations and working it for their next campaign. I think I was pretty much know that it would take an enormous wave election to even make it interesting in their districts, much less put them at risk. So the answer is 50. You still didn't answer my question. It was a great answer and I'm honored that you're on my show, but you didn't answer my question. I'm going to rephrase it. Okay. Go ahead. You went to Harvard undergrad. You went to Harvard Law School. You became, I don't know how you made money, but you made money on your own before you turned to Congress because you were interested in the ultimate game, which is I'm being presumptuous here, but I think it's true for somebody like you, where you say, all right, I've won at law. I won at academia. I won in business. Now I want to do some good. I'm going to go to Congress. So you like being a congressman.  Well, I think I'm pretty good at it. Yeah. I passed 120 pieces of legislation in four years. Nobody else in Congress did that. You're one of our heroes on the show. Now my reading of Republicans, and this is prejudice, but it's true. They're not well educated. If they are educated, they're mercenaries. This new woman brand who's going to be third in command over at the Justice Department, she went through all the right schools, but she was groomed by the federalists. She's a tool of the Koch brothers. They're in it for the money. They don't view government as a good thing. They go there really to take a vacation. That's why you become a Republican congressman. That's the beauty of being a Republican congressman. You don't have to do anything because you're supposed to slow the wheels down. If you're a Republican congressman, aren't you still going to toe the line? Not be afraid of losing because it doesn't matter if you lose. You're in it for the money.   It's all about the money. Are they really frightened of losing their seat, or do they enjoy being in Congress? If so, why?  That's a lot of questions, but I think you can answer it. Why would you want to be a Congressperson? It depends on the person. There are plenty of Republican members of Congress who, in their own view, want to make the world a better place. I'll tell you, there's a libertarian caucus Congress. They don't call themselves that because they're libertarians. They can do whatever they want. It's a defined group that knows who they are. They're not interested in graduating to become lobbyists. They're motivated people who believe that government heavily restricts individual freedom, and they want to try to change that. It's a coherent worldview that gives meaning to them and their work in Congress. We have progressives in Congress who, on our side, feel the same way. Not everybody is selling out, even among Republicans. I think it's just not accurate to say that they're all just serving time until they graduate to be lobbyists, and frankly, there's an awful lot of Democrats who do exactly the same thing. It is true that there is a divide in Congress between people who want to be something and people who want to do something, but that's true of both parties.  Your job is to just do what Paul Ryan tells you to do. That's my understanding of it. You're just a tool. I know they're the people like Rand Paul, and you said the libertarians. They're the exceptions to the rule, but for the most part, these 50 Congress people, these Republicans who are afraid of losing their seats, they don't have any core principles other than keeping the money coming in. There are many members of Congress who are Republicans and want to do things. The problem is not that they don't want to do things, the problem is they're all bad things. They're Republicans who want to ban abortion, to give you one example. They're Republicans who want to drive this country into enormous debt so that they can eliminate corporate income taxes. There are Republicans who want to build a 50-foot wall between the United States and Mexico. Trump's not the only one. There are Republicans who want to deport 12 million people, including all the dreamers. There are Republicans who want to make it virtually impossible for black people to vote because so many of them are Democrats, and so on and so forth down the line. It's not like they don't have a legislative agenda. They do have a legislative agenda, and it's horrifying. Right now, right in our faces is their legislative agenda to make it impossible for people who have existing health conditions to get insurance. That's 43 million people for God's sake. So no, it's not that they're simply there to do nothing. I mean, you quickly learned that one reason why the Republicans hate government is that they're so bad at it. They're just not very good at legislating. I put my legislative chops against any of them any time, but that doesn't change the fact that they'd like to. It doesn't change the fact that when they do have power in places like Wisconsin, in places like Pennsylvania, in places like Florida, they use it ruthlessly. Every year, Kansas, another example, every year the Chamber of Commerce in Florida comes out with a legislative wish list and every year of the 10 items they put on our legislative wish list, they get either 9 of them or 10 of them every single year. So yeah, they'd be happy to legislate if they could get their shit together and if they could wish away Senate filibusters and so on and so forth. They're not just like putting in time at all. They have an agenda and it's a bad one. Right. Congressman Allen Grayson represented Florida's ninth congressional district and please come back as soon as possible. Okay, thanks for the invitation and thanks for putting a good show on the air that is thought provoking and honest. If you're enjoying today's show, please share it on Facebook, Twitter, StumbleUpon, Dig, Reddit, copy and paste the link to this show and share it with all your friends via email. Spread the laughs, spread the knowledge, spread the love. It's Tuesday. So you know what that means? Time once again for Fridays with Corey. Oh, we switched it so that it would be the right thing. It's Fridays with Corey. I don't know. We can't come up with the right name for this segment. Right. Professor Corey Bret Schneider is one of our country's leading experts on the United States Constitution. He co-wrote a recent amicus brief that helped strike down the travel ban. He appears on the BBC. His writing can be seen in the New York Times and countless law journals and for some reason he's decided to give me a free legal education and I will return the favor by suing him for everything he's got. Welcome, sir. You might hear some noise in the background. They are... Thank you. And it's an interesting way to welcome people that threaten to sue them. I haven't heard you do that before, but thank you. Well, the words of the jerky boys... Sue everybody. Do you remember the jerky boys? I do remember them. Yeah, I do. Should do their podcasts. Next. I love the jerky boys. Let's talk about a couple of things today. We're going to talk about this new trademark case about the slants that I think made it to the Supreme Court. Is that correct? Not only made it, they decided the case today. We'll get to that in a second. We'll talk about separation of powers in relation to our involvement in Afghanistan and the... Do you hear that in the background? I do, yeah. That's not me, though. Right. That's what I... They're doing something to the bricks outside. I'm going to sue them, too. And we'll talk about freedom of speech and John Stuart Mill. We'll talk about Oliver Wendell Holmes, Alexander Mikkeljohn. And do I have everything? Yes. That's a lot. That's a lot. Yeah, we got a lot to do. And I'm reading your book. And it's a lot harder. It turns out reading law is a lot harder than BSing about it. Yeah. It's more fun to just give lots of opinions, I guess, Linda. Yeah. And I had trouble understanding John Stuart Mill. Could not read it. Yeah, that was your main assignment for today, wasn't it? On liberty. Yeah, I read Hugo Black's Supreme Court decision on freedom of speech. That was readable. Couple things in Chapter 2 are readable, but I found John Stuart Mill. We'll get to that later. Let's talk about the Supreme Court they issued a ruling on the slants. Who were the slants? This is a band that is an Asian-American band that took this racial slur and used it in their name as a way of kind of reclaiming it, I think, is the way that they see it. And they applied for a trademark and they were denied.  And this has made it all the way to the Supreme Court. And actually, just a few minutes ago, the decision was released in favor of the band.  Explain that to me again, because I was trying to pot down the drilling noise in the background. So this band used this racial slur as their name. Are they Asian? They are Asian, yes. And they're trying to kind of reclaim the name, I think, is the idea. That's why they've tried to trademark it and why they use it as their band name. But the trademark was denied to them on the grounds that there's a statute that says basically that you can't disparage people in a trademark. And they fought back saying, look, first of all, we're not disparaging anyone. We're using this name to try to reclaim this slur and to use it in a way that robs it of its hatred towards Asian Americans and that stands up to bigotry. And they also said that we can do whatever we want under the First Amendment when it comes to our trademark. We can express an opinion as we like, not whatever we want, but we certainly are free to express an opinion or as the court tends to talk about it a viewpoint. Now, there's an argument on the other side, which is that when it comes to granting trademark, the government isn't regulating private speech. Some people said they're trying to send their own messages about what's okay or what's not. And in conferring a trademark, you're conferring benefits. And the government doesn't want to confer benefits upon people who are using slurs. That was their argument. So you had these two doctrines opposing one another, the free speech idea of the band and the government's idea that the government itself is speaking. And so they could discriminate based on viewpoints. And the slants won this case just a few minutes ago. So I don't know anything about copyright and trademark. They're brothers and sisters, right? Copyright and trademark. That's right, yeah. The mark is more about the name in particular and trying to get protection for a particular name or yeah. So if I were to say print a poster that has the word slants in it, I would have to put the TM next to it? Now you would. I mean, they were denied the mark, but right, that's the outcome right now, exactly. That's pretty funny. It's got all sorts of complicated issues about, I guess, satire and questions of hate speech. All these things, I think, are mixed in with this one. It's a related case just for listeners to see that it's not just about this one case. Of course, it's about the issue. And the Washington DC football team, of course, has been in a battle about whether or not they should be able to be entitled to use a slur in regard to Native Americans as their trademark. And they've been denied that mark as well. And they might, as a result of this case, there's a good chance that they'll also be victorious. That is not, unlike this band name, an instance of trying to reclaim a slur. To me anyway, it seems like they're just using a slur. So cases have all sorts of implications that aren't an issue in the immediate decision. Who is behind this case? It seems to me, I hate to bring up Dred Scott, but wasn't Dred Scott kind of staged to bring it to the Supreme Court? I think that from what I can tell, it's genuinely the band that just wants this trademark and thinks that they think that they're... Well, that wasn't my question, Professor. Okay, sorry. It seems to me that certain Supreme Court cases are staged by lawyers to get them to the Supreme Court. I think Dred Scott was staged in order to put up before the Supreme Court. I should look into it more, but I think from my understanding of the case, it really, the litigants just want the trademark. And I'm not sure that they would have minded if they just were able to win this at an earlier stage and it wouldn't have required going to this level, the highest level of the American court system. They're making a larger point though, obviously. Maybe. I'm not sure. I should look into it. I shouldn't speculate about what their motives are. Certainly that's true of some people that they bring cases because they want to make law, not because they want to win their particular case. And it's a dilemma in this travel ban case that we keep talking about in depth. Do you want to have the Supreme Court come in and really vindicate your position in a way that will be historic, or do you want to just win in the lower courts? And that's... With all this litigation, that's a tension. I mean, ideally, it shouldn't be up to the lawyers. It should be about the people who are involved in the cases because in the end, that's the people whose rights are at stake. Back to the Supreme Court ruling. If on this show, I have a sketch called The Slants, am I allowed to do that, or do they own the word? I think they own it. No, it doesn't. You can't trademark an idea or even a word or keep people from using it. My understanding is that the intellectual property rules are really about using it as a name. So if you were to try to call your show that name or to create... I don't know if you play music, but to form a band and use that name, then you'd be in trouble because they now have the mark. But no, just talk using the word or trying to use it in a sketch or satire. I think your own First Amendment free speech rights would protect you there. So what is the significance of this ruling down the line? How will it inform the use of the N-word or the C-word? I mean, one immediate thing is this, I think that the Washington football team will win their case. But it also helps to clarify this pretty complicated area of law, the court. My main interest, if you can believe it before Donald Trump was elected, was in free speech and license plates. There was a huge case that was at the forefront of First Amendment free speech law about whether you could deny the Dixie flag being on the license plate of Texas. Texas had denied the Dixie flag. Now, Texas won that case even though it looks like to some like it was a limit on free speech. And the idea was that the government's got the ability to send its own messages or to speak. And that's what this book that I wrote that we've talked about several times is about. And this clarifies that area of law. How do we know when the government is speaking? For instance, when it's putting up public monuments and where it has to send its own ideas. So the government puts up monuments about Martin Luther King. We have a Martin Luther King Day monument. It's not required to put up monuments for Southern segregationists. It's discriminating based on the ideas and approving of some and disapproving of others. Now, government definitely can't do that when it's putting people in prison. It can't imprison you because you criticize the president or for your ideas. But here, this is a complicated issue. Well, the trademark, what is that? Is that like the monuments case or is it like putting somebody in jail? Is it a free speech issue or is it the government speaking? And the court has as it often does started to clarify what is protected free speech and what's an unprotected government speech. And here they've said trademark is clearly private speech that's that's protected when it comes to opinion. Was that clear? There was a lot there. Yeah. Yeah. Let's talk about separation of powers. One of the stories coming out of Washington is that Donald Trump, commander in chief, for the time being, he is leaving the decisions on day to day military matters to the Pentagon. Afghanistan, by the way, our involvement there is now 16 years. We've been fighting a war in Afghanistan for 16 years. We have 8,800 troops stationed there. Trump has new policy when it comes to Afghanistan, but it was announced by our defense secretary, Jim Mattis, who says he'll be sending an additional about 4,000 troops into Afghanistan. When I ask you about civilian control, there was a thing called the Mattis waiver. In order for Jim Mattis to become defense secretary, the Senate had to pass what was called the Mattis waiver because he had been a general. There has to be, I think, seven years between the time a general leaves the military and becomes the head of the Pentagon because we believe in civilian control of the military. Talk to me about the Constitution. Is that enshrined in the Constitution that the army must be supervised by civilians? Absolutely. Well, the ultimate place that it's enshrined is in the, you know, who is the commander in chief? It could be a military general, it could be in charge of an army. And in our Constitution, it's clear that the president of the United States, who is a civilian, is the head of the, not just the army, but all of the armed forces.  One is to really make the cabinet member who reports directly to the president, now the secretary of defense, also clearly a civilian. But the ultimate, you know, authority of over the military has to rest with the, not with the military itself, but with an elected government official, mainly. In the Emoluments Clause, it seems to me, because I've been studying.  I am. Hard to keep up. Star student. In the Emoluments Clause, as I understand it, you're not allowed to take money from a foreign government, but you're also not allowed to hold two offices if you're the president. You can only be, I'm not sure it's the Emoluments Clause, but I was reading about the Emoluments Clause, and this was also brought up. So I don't know where it is in the Constitution, but if you're president, you cannot have another job in the government. Is that? Well, I mean, it's the same logic as the Emoluments Clause. You're not supposed to benefit from foreign or domestic government.   It's like his name. You're going to look like Charlie Rose. Yeah. Does he have multiple jobs? Oh, my God. He's on Channel 2, CBS This Morning. He's on Channel 13. So I bring this up because General Eisenhower became president. General Grant became president. Were they concerned that a general would become commander in chief? George Washington was a commander in chief. Yeah. He was the general. What provisions do they place in the Constitution to prevent somebody in the military from also becoming president? You can't have two jobs, in other words. That's one of them. Yeah. I mean, a lot of what's done is done by tradition, I guess, and although we've had military generals who have become president, they've clearly distinguished between their role as president and their role as the head of the armed forces now. I guess one theme that we've been pushing is there's nothing about this stuff that's written in stone. So could a former military official who becomes president at some point really tie together the military and the government in a way that was dangerous? Yes. I mean, maybe it's happening already. That was the famous warning by Eisenhower that there was a sort of informal network of the military and government that were cooperating in a way that was undermining the independence of the civilian government. Interestingly, that came from a general, a former general who knew something about this. All the questions you're asking, I wouldn't want to pretend that just because the Constitution is set up in a certain way that it protects us from the dangers that you're alluding to. It's active vigilance, oversight, tradition, recognition of norms, those are the things that protect us. But there is nothing in the document itself that can absolutely guarantee against it. And here's why. The president ultimately does control the military. And so, you know, there are legal limits, but they could be undermined. He can undermine them. Yeah, that's my worry. Sure. I mean, it's such a powerful office being commander of, I mean, take for instance, we've talked before about the threats at least or the illusions by advisors to disregard judicial orders. Imagine that the president of the United States in the future decided, you know what, I'm not going to listen to the Supreme Court. What is it that actually prevents him from having to comply?  But a president who really wanted to go rogue and to just stop basically listening to the other branches, including the judiciary, because they control the military, it's why it's such a dangerous position. I don't know in the end what the ultimate check is. I mean, I guess the military could at one point refuse to comply with orders that it deemed illegal. But, you know, that's not a great, I don't know, reassurance that it won't happen. Wasn't that one of the tenants established after the Nuremberg trials that just because you're issued an order, it doesn't mean you should obey it? Yes.  So the Nuremberg defense of many of the accused Nazis that they were just following orders was not, wasn't deemed an acceptable response. But what I'm talking about is on a large scale, not necessarily involving human rights atrocities, but the idea that, you know, in the end, what is it that keeps the president from just sort of disregarding the Constitution? And I guess I'm trying to be honest that in the end, if a president really wanted to do so and was able to get the military on his side, our system has limits in it, but it's not a guarantee against that kind of welcome from happening. This isn't so much a constitutional issue as it is a military issue. We've received assurances from George W. Bush and now Donald Trump that he's going to take his orders from the generals when it comes to wars. I'm going to trust the guys with boots on the ground who really see the situation. I'll let them decide what we need. And that has always had devastating consequences. Whereas you had somebody like Jack Kennedy, the mythology of the Cuban Missile Crisis, I don't know how much of that is Camelot. I think even liberals would suggest that he blew the Cuban Missile Crisis or controlled the narrative afterwards. But the mythology is that Kennedy was able to stand up to Curtis LeMay and the military and not trust them. And Johnson trusted the military. And Vietnam became a debacle. These things are all dependent on who's in power. So during Nixon, the Secretary of Defense, evidently I've seen this reported a couple of places, started getting nervous about Nixon's ability to launch nuclear weapons. I don't remember who it was. It was the Secretary of Defense at the time who basically commanded the military below him to not launch a nuclear attack unless the Secretary of Defense had confirmed it. Now that's a usurpation of the president's power as commander in chief without question. But if it was right that Nixon was really, I don't know, acting erratic and acting in a way that could be dangerous for the future of or existence of the world. I don't know that it was the wrong decision. So ideally you have a commander in chief who has got good judgment and making decisions. But in this case, I guess I'm not sure that it's awful that some of these decisions are being handed to military officials given how erratic Donald Trump has been in his own decision making. It's really a far from ideal circumstance and maybe this is the best solution given that. How long can a war go before Congress steps? And we have a 16-year-old war in Afghanistan. Obama spoke before the UN, I don't know, about four years ago, and acknowledged the state of perpetual war, that America was in a constant state of war and we had to figure out a way to stop this. I thought we had a war powers act, but we're 60 days. 60 days, but now with drones we're sending, we're killing people in Yemen and Kenya and the Sudan. I mean, what are the limits on a commander in chief these days? It's a great topic for us to continue to discuss. The simple, I'll give you the kind of quick answer, is that there is a war power back and forth. That's all we're looking for. It says 60 days until a resolution or declaration of war, but the president, I mean, that's a long time, can launch an attack to preempt. Another attack has discretion in the use of the military to defend the nation up until that 60 days. Now, a president is not supposed to launch anything, is allowed to defend the nation, but is not supposed to launch aggressive war. I think that's a violation of the Constitution and an abuse of the war powers act, but with all these things, I can tell you this is required, that's required. How do you enforce it? The courts have been very unwilling to engage in oversight of the president's power as commander in chief. A lot of these issues are issues that are being worked out between Congress and the president without any clear judicial law or oversight, and it can be abused. On the drone issue, I mean, there were cases brought against Obama saying that this was an abuse of power, that it was a violation of due process because if you're on a drone list, you weren't obviously tried in a court. There was no formal judicial procedure of anything like what it would take to convict somebody on US soil, but I don't know, many of us and maybe myself included, I was not engaged as much in that issue as I probably should have been, and it shouldn't just be when there's a president that you don't like that you try to argue for constitutional limits, and I guess I think in retrospect that was probably a mistake. There were people bringing cases, there was a case brought about a person who turned out to be on one of these drone hit lists and the person was an American citizen and brought a case saying that his due process rights were violated. The case didn't really go anywhere, but the Obama administration at least tried to draft memos saying why they thought that their procedures were constitutional. So there was some pushback, but it's probably something we should think more about. Yeah, and it's for a much longer discussion. I want to turn to the possibility of a weakened executive branch because if the military is making all the decisions when it comes to the war on terror, Congress funds that war. Is Trump doing the Constitution a favor by being a weak president? Doesn't the Constitution provide for an ignoramus running the executive branch and the supremacy of the legislative branch? I mean, isn't there supposed to be cycles to American history where perhaps the legislative branch has more power than the executive branch? Yeah, I like the second way that you put it. I wouldn't say that the Constitution establishes the Congress as the supreme branch. We rejected parliamentary supremacy, for instance. The idea is co-equal branches, legislative Congress, the executive, the president, and the judiciary. But the second thing you said I think really captures that the idea that at different points in history, basically different branches are going to have to pick up the slack and some will become weaker and some will become stronger. When you have a president like this who's really such a disaster and so frightening on so many levels, the fact that these other branches need to step up, the Constitution, thankfully, it's failsafe, it provides for that possibility. Also, I've been very interested in the states stepping up and trying to resist the federal government. That's another way that the Constitution, I think, it doesn't protect us, but it provides mechanisms that can be used by citizens and public officials to limit an abusive president. We started working together, and one of the first things you said a couple of months ago was, you think this could end up being the Constitution's finest moment. I hope so. We'll see. We're counting on it. It's a brightening experiment that we're in the midst of and we're trying to figure out what's happening in the midst of it and how the history will be written. I'm sure it's historic. We've never seen a president in recent memory. I don't think, and I think we've both agreed that this goes beyond Nixon, who's been this really incompetent and frightening and ignorant of the Constitution.  So yeah, this is a stress test and we're living it. He's destroying the country. He's destroying the planet. He's destroying the lives of undocumented workers. He's creating confusion with DACA. If you're an undocumented worker or if you're a dreamer, he's giving conflicting signals as to whether or not you can stay in this country or not, it's terrifying. But the American people step up in the next two years. We might look back at Trump as a cautionary tale and an example of why we need to pay attention. I'm just being optimistic. Yeah. Yeah. And we've had, you know, it's not like we haven't had dangerous presidents before. We had Nixon, of course, who we keep talking about. We had John Adams, who passed the Alien and Sedition Act with the cooperation of Congress of its own party and that banned criticism of the president of the United States. So I mean, it's not like we haven't had frightening moments before in American history, but in the midst of it, wondering how this one's going to turn out. Yeah, we're hoping that it will be. Well, let's talk about that because I'm reading your book, Civil Rights and Liberties, Cases in Readings and Constitutional Law and American Democracy. It's written by Professor Corey Brechneider. I'm going to admit that I was able to read parts of chapter two. It's all about free speech. Some of it was way too opaque for me. Very hard to understand, especially the John Stuart Mill. I'll get to John Stuart Mill in a second. You brought up the Alien and Sedition Act under John Adams. He was the second president of the United States. I believe he was a federalist, right? Correct, yeah. Which means he was in the tradition of George Washington. Was George Washington a federalist or he didn't believe in parties? Yeah, he was sort of pre-party, but the party originated from his secretary of state, Alexander Hamilton is usually thought to be the first federalist, and Adams was the first federalist president who self-identified as a federalist. Tell me what the Alien and Sedition Act was. Was it ever repealed? And tell me who was more dangerous, Nixon or Woodrow Wilson? Because a lot of these First Amendment cases in your book, at least chapter two, a lot of it comes from World War I and Woodrow Wilson. Yeah. Alien and Sedition Acts are this sort of weird period in American history where very early on an act is passed. There's a context too of discrimination against the French and there are these acts limiting the rights of non-citizen aliens in the country. What was going on that precipitated the Alien and Sedition Act? There was a problem with France? There was suspicion that there were French spies basically in the United States and there was an alliance that Adams had formed with England and basically he was suspicious that the French nationals in the United States were undermining American democracy. Even though the French had been our allies in the past. That's correct. Yeah, there was sort of a shift and Jefferson I think still remained in his mind allied with the French, but Adams really switched his alliance more towards England. That's one dimension of what's happening, but he does this kind of broad thing in general to stop dissent, which is that he signs this act that really criminalizes criticism of the President of the United States. It allows for you, interestingly, to criticize the Vice President. That's Thomas Jefferson at the time, a member of a different party because the President and Vice President did not Democrat, Republican, right?  So plausibly, the Vice President of the United States could have been imprisoned for criticizing the President at the time. There is no Supreme Court to fight back at the time. There's no doctrine of the kind that you were talking about of the protection of all viewpoints. It's clearly would be unconstitutional under our current jurisprudence, but none of that exists at the time. When was the judiciary act passed? It's passed around the same time, I think a little earlier than the alien sedition acts, but the tradition of judicial review hasn't started yet where the courts are striking down legislation. And there's certainly nothing like the modern tradition of First Amendment jurisprudence that develops much, much later where the courts will say, hey, that's a violation of free speech. You can't do that. And what was it? They have to find other ways of fighting back. What was the Supreme Court ruling that gave the Supreme Court final word on a piece of legislation? Well, what comes later is Marbury versus Madison. I think most people think that's the moment where it happens. And I think we talked about that at a different time. The court just, even though it really doesn't stop the President, this is in the next administration from doing anything, it announces this power of judicial review. And from then on, I think it's pretty accepted that the courts can strike things down. What happened to the Alien Sedition Act? It's repealed when the Vice President, Thomas Jefferson, becomes President. I should say the sedition part. The alien acts remained on the books. Certain aspects of them and throughout American history were used to discriminate, basically, against non-citizen aliens. Fast forward to World War I, Woodrow Wilson, the Palmer Raids, where the Attorney General was just breaking into the homes of communists and anarchists. There were a couple of big rulings coming down from the Supreme Court. What was Schenck? You tell me. You did the reading. That's how this works. Oh, okay. Schenck was, I think, an anarchist who was promoting. Well, I know that the outcome was that Oliver Wendell Holmes, one of the justices, coined the phrase clear and present danger, that he ruled that you could suppress speech if there was a clear and present danger. And I think you got shouting fire in a crowded movie theater from this decision. Yeah. Is that correct? Yeah. But I can't remember. By Reddit, I can't remember the rest. I think you got two key things.  But when he said that, it was a pretty profound thing to say. Probably the first time anybody had said it. The idea is he sort of uses that example to say, look, free speech is great. But sometimes it presents an immediate danger and think of shouting fire in the crowded theater. That's an example where you can't have a right to do that, or it'll cause death in the immediate result. Now, the decision was interpreted later to be a little broader than that to say, look, free speech is fine. But if it's dangerous to the security of the nation, it can be limited. Now, one thing that Holmes does with that phrase is it looks like he's got a limit in the time between yelling the thing fire and the deaths that might result. They're imminent. They're about to happen. But the court, the reason it's able to prosecute communists throughout the century is that they say what's not important is the time limit. It's that there's a significant danger that this speech might undermine basically the security of the nation. And the court again and again says that communists and anarchists who engage in that kind of speech are really advocating ideas that are dangerous to the security of the country. And that continues until pretty late in the 20th century, the persecution of communists. You hear that in the background? There it is. Yeah, it's back. How are you, I'm going to, this is a serious question. Yeah, I'm in New York City. Yeah, I hear that noise. Yeah. Are you able to concentrate when there's noise like that around you? I'm, I'm quiet, actually. Yeah, that that I mean with, you know, I'm okay, you know, talking to somebody we're trying to read or write with that kind of thing in the background can be tough. But you're a great reader. Could you know I'm distracted. You are distracted. This is important to me. I'm leaving this in. Okay, because so much of my inability to learn stems from not being able to drown out this stuff. Right, right. I just have to focus. It may be if I challenge you a little, then you'll forget about the sound and focus on what. So one thing I wanted to ask you, now I'm going to shift back to my, you know, we talked a lot about the law and I'm going to ask you about comedy. I mean, what, what, one thing that you've been saying throughout the podcast. Oh, come on, let's stick with the constant. Stick to the law. I love to talk about comedy. All right. I'm going to tie it together. All right, go ahead.  But the thing that you're pretty firm on is the idea that free speech should protect all forms of comedy. Right. I mean, is that your view that there really is no limit to what you should be able to say or do?  I don't like the idea of firing this comic for doing that or even I think criticism of her. And, you know, I don't know, is that, is that your reaction to all of this stuff that when you read it, you think in the end there really should be protection at least for satire of all kinds. I'm all for speech that criticizes government, religion, public figures, speech that's pornographic, that kind of degrades the conversation. I think should be protected.  I think we've crossed a line where perhaps we'd be better off if there were tab boos so that we could talk about more important things. I think all speech should be protected. In fact, I had a question about this, but I'll let you ask your question. Go ahead. Yeah. Well, it goes back to the, I mean, one thing that I know we were going to talk about is the distinction between content and viewpoint and the idea that you're defending that when it comes to criticizing John Adams or criticizing a president, all opinions should be allowed. You know, that, that's a pretty firm, I think, First Amendment principle. But what's less clear is the vulgarity question or the... Well, can I frame this for my listeners? Yeah, yeah, please. Before you came on, I had a discussion with Scott, not Scott Burgowski, with Frank Conif and Buckles, who you'll meet. Yeah. There is a comedian named Eliza Schlesinger. Yeah. Very successful comedian. She made a statement. She said, I can close my eyes in any comedy club and hear women doing the same material about their vaginas. And she said, I wish women would talk about something other than their vaginas. There's been a lot of pushback from women who are now saying, how dare she criticize us? We should be allowed to say whatever we want. This is censorship. I, because I have to do an entertaining show and keep people engaged, I rolled up my pants and waded into that muck, which is, I find tiresome, but it keeps the conversation going. I get tired of hearing this is censorship, which we know it's not. You have a right to criticize your fellow comedians for being vulgar. I think we need women talking about their vaginas. But we also need people saying, stop talking about your vaginas instead. Talk about how hard it is to get an abortion in America. So you really don't buy this sort of, oh, it's free speech or anything goes when it's in the service of a joke. There's some sort of wider social obligation to try to use comedy for some higher purpose, or does that go too far? I don't believe in censorship. I think you need old farts like me to be an elder statesman, or you need Eliza Schlesinger to say, hey, you know what, what, you know, I'm not calling for government censorship. I'm calling for taste. I'm calling for zoning. I don't want a strip joint block away from where my kids go to school. I don't want it. And I have that. It's community standards. I don't want it. And I have, I feel like you did understand John Stuart Mill because in many ways, I think that's what he's saying that, you know, we're going to have free speech, but it's in the service of some higher kind of conversation that we want good things to win out. We want, you know, ideas of equality to win out, not inequality. We want, well, as he puts the truth to win out, not lack of truth. And the way that you might get there is, on the one hand, not putting people in jail for their opinions, but you need people criticizing each other and engaging each other in arguments in a robust way, not just sort of leaving each other alone or that conversation's never going to happen.   And most importantly, it's in this, it's in a, it's got a point, which is for the common good to win out. And that's not going to just happen if people are, you know, left to do their, I mean, to go back to your example, to do their act and, and, you know, as they want. You know, it's not, excuse me for one second, because what's more important to me than free speech is clear speech and John Stuart Mill does not write clearly. And it was very hard.  I know he's the most influential English speaking philosopher of the 19th century. What about clear speaking philosophy? Why do they have to write? So instead of English speaking, I find like it's easy to read the Russians for me because somebody translates it into simple English. He obfuscates. It's for his time though, right? I mean, it's like he's not writing for us. He's writing for his audience. And so for the time, I think it's pretty clear. But, you know, I take your point. He tries to lay it out in ways that are clear. You also read my edited version. So maybe I hacked it up in a way that made it. Well, let me ask you a question about intelligence because we hear the noise in the background. Yeah. This is the story of my college years. Yeah. There was noise everywhere I went except the library. People were blasting music and screaming. I could never focus. I could never concentrate. I'm going to, you know, I can pot down when I'm not talking the drilling sound. But this is, this to me is everything that's wrong with America. It's so noisy. Yeah. I can't get peace and quiet. And we're all quiet now. Now they're quiet. I can't focus.   Do you find yourself reading paragraphs of John Stuart Mill and going, what did he just say? I don't understand. I cannot figure out what the hell he means by this. Do you ever find yourself reading the same paragraph over and over again? I have with some thinkers that I have that experience a lot. But I've read that book so many times. I teach it every year and that I think the first time I did read it, I had that sense. But, you know, another thing is maybe read it again, that with a lot of these kind of classic works, it really don't make sense the first time. But as you reread it, you, you know, you have to believe that you'll get something out of it. But I guess I'd say in this case, you would, that he's really saying something that's so close to what you're saying. And he's giving this pretty broad framework for it that if you go into it, you know, with this discussion of mine that maybe I'm wrong. And you know, let me ask you, this is important to me. This is important to me because you are, I want to remind our listeners, you have a law degree from Stanford, you have a PhD from Princeton, you have a master's in Cambridge, and a degree in auto mechanics from DeVry, which you never talk about. Trying to forget those years. Okay, so we hear about autodidacts. I'm an autoerotic didact. I self educate with a belt around my neck. And by the way, hey, I listen, if I can, anytime I can do that kind of joke, it's to prove a point, Professor. It's in the service of the common good. Yes, it's, it's, but the autodidact, the self educated man, are there really, because I don't buy into this, I don't believe that there's some guy who can pick up John Stuart Mill and start reading it and understand it. I just don't need a, you need a guide, you know, you need somebody to talk to at least, I don't think that these things are interesting if you just pick them up and read them. But if you have a puzzle that you're trying to answer, which you are, I mean, not just in this conversation, but in lots of the ones that you're having over the course of a week about what the purpose of the profession of comedy is and what the use of free speech and pushing the boundaries are, there is no better text. I mean, it's the No, you're not answering my questions, sir.  No, you need to have a conversation. But I read about these people who go to prison, and they read the great books all by themselves and come out as these fully formed intellectuals. I don't believe that there are people who can buy themselves, read these great books and understand them. But apparently there are, right? I think in those case, I don't know, we should look at those cases like in the Malcolm X case and the autobiography, I think he talks about being turned on to reading by fellow inmates who were educated themselves. And yet Alex Haley had to write his autobiography for him. Well, they co-wrote it, right? It's with Alex Haley. I think he, you know, you look at his speeches and listen to him speak. He clearly was somebody without a formal education who was extremely educated. And, you know, he debated people from every Ivy League college in this debate team and often won. So he was self-educated. Well, I guess that's what I'm trying to say. I don't think that he just picked up a book and read it. I think that he has somebody to talk to him about what he was reading and that it was through this sort of maybe informal system of education, but the combo of reading on his own and talking to them. So that's what you and I are doing. I mean, hopefully I've gotten you interested in this book.  Now, that's not a theme that's unconnected to what you're talking about. And by the way, I mean, Mill is talking about public conversation. And in the world now, for better or for worse, and people can talk about it, comedy is the public conversation in many, many ways. So it's not a, by the way, you know, example. It's maybe the primary example of what he's talking about. So I think if you go back to it with that, that idea, the sort of looking for what the art, you know, the overall argument is simple. It's that free speech, not limiting people because of their viewpoint, only protecting people from harm, that it will result in the truth. And how can that be given that people say things all the time that are false or ridiculous or silly, and he's trying to defend that simple proposition that if people engage in argument and the government doesn't censor them, that what will happen is that the truth will win out. And, you know, I think that's ultimately what you think too. But I know that in skimming him and pretending to read John Street Mill, did he coin the phrase marketplace of ideas? It's taken from the, that's, I think, a famous way to characterize the argument. My understanding is he never used the phrase, but it's a simple idea that if you have a clash between false and true or partially false and true, that the result will be true ideas went out. And you might think, like, how could that happen? Part of the idea is that in every even bad argument, there's some truth to it. So, think of the Green Nazis. This is a real example.  They deny the Holocaust. But they're also environmentalists. And there's a real group, and, you know, they're pretty good on global warming. But the Green Nazis, right, are this heinous group.  They don't burn books. They boil them. Oh, my God. That's a good joke. Yeah, that's okay. I like that. Yeah. Okay. I'm not going to comment on the boil books. I'm not going to do the humor part. I'm just going to do the let's see, you know, in a classroom, you can just do a weird example. And that's humor enough. But the professional comedian, they're going to just take it to the next level, aren't they? That's why you have the Emmy. Why allow it, right? And the idea is, there might be some truth that comes out of it. And, you know, maybe the environmental part sticks around, and we get rid of the disgusting Holocaust denial. And that's why you don't put these people in jail. Now, what about an idea that's totally false?  The idea there is that, you know, you and I are going to learn by engaging that kind of argument, responding to it, and trying to clarify what's right in the world. Now, comedy is some mix of all these things. It's some true, some false, some satire. But I guess the idea that Mel, I imagine what he would say about comedy is that you want to allow it, but for a higher purpose. And that's why you need people to kind of engage it and not just leave it alone, but also not censor it. Well, I've always found with my comedy, I never felt a responsibility to explain what I mean with my jokes. That it's a bad joke, right? If you have to explain it. Or it can mean two things at the same time. I like jokes that have like a cognitive dissonance where people are laughing at it for two different reasons. And that's especially the kind of satire that I used to do, where I would take a conservative point of view and the conservatives would laugh because it had the right amount of hatefulness in it. And the liberals would laugh because of the absurdity of it. Well, that's kind of Colbert, right? Or Colbert? I was doing Colbert before. Before Colbert. Yeah. Did you trademark that? No, he just did it better than I did it. And I, you know, I stopped doing it because people in Colbert ran up against us. A lot of Republicans were watching. You're not going to believe this unless you actually read this because it's true. So unless you read this, you're going to say no. But I found it in the clubs. Republicans were watching Colbert and they couldn't tell the difference between him and Bill O'Reilly. They thought he really was a funny conservative host. Did you know that? Oh my God. I have never heard that before. Yeah. You just saw, how do you know about this?  Something else that's really disheartening about Archie Bunker. They studied Archie Bunker and all the family. More Americans were laughing with Archie Bunker than at him. So much for satire. Yeah. That's, that's one of the dangers of free speech. But you say, and I guess John Stuart, John Stuart Mill says, because you've said this on the show before, the prescription for hate speech is more speech. Yeah. Yeah. I think that's his view. And I mean, it's especially interesting given, you know, this, this thing that people aren't getting it. I mean, the onion, I guess, is like that. Maybe there are people out there reading these headlines or, or reductress, which is, I think, a great feminist version of the onion.  They're reading it literally. Now, one thought is, well, we could censor these things because they're falsehoods. I mean, they literally are, right? What Colbert is doing is pretending to be somebody's not saying things that are false. The onion is all false, basically, or 80% false, and what it says. And one response to that is let's not have any kind of fake news, even the funny kind. Right. But yeah, my instinct is not that. It's that, you know, people need to be included in the joke, maybe, or educated about what's going on with this kind of humor. I don't, I don't know how you do that. I mean, maybe I'll leave that to you. What do you do with the person that doesn't get your, you know, did you just leave, leave them alone? The Republicans that thought you were really doing this character? And I found it, I found it depressing. So I stopped. That's why you stopped doing it. Yeah. And I found it to be a psychological defect of not saying what I really meant. I found it cowardly to say the opposite. I will find, though, in dealing with divorce attorneys, I'm not bringing up the divorce. But I am finding that, and I can't tell if it's irony or satire. On the occasion that I've had to correspond with a divorce attorney, sarcasm, saying what I don't mean is so powerful. Yeah.  It's one of my closing sentences with some of these attorneys. Well, you know, it's anyway. I mean, if it works, it works, right? I mean, you watch some of these shows and I feel like watching John Stuart or Colbert or any of these show, you often get more truth than you do with the straight news. Now, let me ask you about John Stuart Mill. He didn't quite know that. He didn't get that part of it. But as I understand it, it was John Liebowitz Mill. But John Stuart Mill changed it from John Liebowitz because he was a self-hating Jew and a coward who hates unions. That's what I heard about John Stuart. I'm confusing John Stuart. Is that your former employer you're talking about? Yeah, he doesn't like it. Did you used to work for John Stuart Mill? I used to work for John Liebowitz Mill. He hated unions. He hates the Writers Guild. I see. But I was anyway, that's neither here nor there. Before you go, you did very well. Thank you. He suited you. B-plus, A-minus. By the way, this is getting much better and more fun. And I live for this. And I don't know how I'm going to sue you, but I will. Just be prepared. Listen, listen, try it. Do us a favor. Do your Columbia mentor as a favor. The court curriculum. You're supposed to read this book in college when you're 18. Go back. And when you read it, though, read it with this lens. What does this have to do with allowing people like me to make these jokes and to go on stage and pretend to be somebody that I'm not and say things that are false in the interests of humor? I think you're going to find that in that book or in those pages, just the edited version, that there's an answer to that. It might not be written to your taste, but it's got a deep idea there that this is a project that we should allow. The only reason why you can do what you do or any comedian can do what he or she does is because we have these enormous free speech protections. And, you know, before Mill, that wasn't the case. I mean, throughout America, not American, throughout the world history, you went to jail for mocking the leader. But Mill wasn't a Supreme Court Justice. He was just a philosopher. Look, we don't have a First Amendment free speech jurisprudence of anything like what we have without Mill. Holmes, who did more to bring the law of free speech into American government and give you the protection that you have, was a devotee of Mill. And that's what he's trying to do is to try to take it and give it legal effect. So it's the most influential piece of writing on the topic. But he is your great-grandfather and that he made it possible for you, David Feldman, to do what you do every day. Can you create Supreme Court precedent based on the great books and not the Constitution? If you're Oliver Wendell Holmes, yes. You know, not everybody can do it, but he certainly did. I mean, there is, you know, he's remembered sometimes for this clear and present danger rule, which was quite oppressive sometimes. It was used to justify putting communists and leftists in jail. But before Holmes, there really was no protection at all for free speech. So it was an important starting point to getting where we are now. And he got it from Mill, I think, pretty directly, actually. Oliver Wendell Holmes, was he the one who said one Cretan in a generation is an, did he uphold eugenics? He had an awful decision in a case called Buck v. Bell that that's not the exact quote, but yeah, he allowed for the sterilization of law that had a correct for sterilization. He, Oliver Wendell Holmes, not a good, not a good decision, awful. And this was before the Nazis, right? Yes. And there was a sort of eugenics movement in the United States and Holmes, there's debate about whether he was defender of eugenics, but he certainly didn't intervene to strike down that for sterilization. And yes, this is before the rise of the Nazis.  Yeah.  But one view of historians is that there was an influence on the Nazis by American eugenics as upsetting as that is to hear. And the Germans had Social Security before we did. Just thought I'd mention that. Okay. Before you go, very this was very good. I'm going to read John Stuart Mill. I'm going to read that. Yeah. I'm going to force, I'm going to find a quiet place, not a crowded place, to read John Stuart Mill and see if I can, I can understand it because let's do it with the question of mine, you know, try to engage it in a conversation. And the question that you're asking is, what is the purpose of free speech? And does it lead to the common good? And why would anybody, I mean, you think about it, right? That's, we hear that marketplace of ideas thing all the time. Now he's trying to actually give an argument for why false ideas of the kind that we've been talking about or that you have done on stage. Why does the, that it will result in a good thing? And he's trying to show you that. And in a meticulous detailed argument to make that case, you know, most people think you have false ideas that's going to result in more falsehood, not result in truth. And he's trying to show the opposite is, is true. Well, the ultimate defender of comedy. Well, I, you know, first there were falsies and they led to breast implants. So do you understand the point I'm making? I know it's a good joke in there. That's not quite getting it. Well, I'm bringing up the slippery slope before you go. The argument that we have on the show before you came on was the slippery slope. And I, the more I read about the Constitution and the more I study law with you, the more fallacious the slippery slope argument becomes, especially when it comes to the First Amendment, because this is what I hear cocktail parties from people who are as stupid as I am, which is when Eliza Schlesinger says women shouldn't talk about their vaginas on stage. It's a slippery slope. You'll pardon the pun. It's a slippery slope. Pretty soon you won't be able to criticize the president. And in reading your book, civil rights and liberties, cases and readings and constitutional law and American democracy written by Professor Corey Brechneider. In reading chapter two, I did not know until I read your book that the Supreme Court has differentiated between First Amendment violations that involve content and First Amendment violations that involve opinion. In other words, there isn't a slippery slope. The Supreme Court has demarked the difference between content and opinion. Can you explain to me what the difference, before you go, what the difference is between content and opinion? The First Amendment, when it comes to punishment, for instance, protects certainly all opinion, all viewpoints. That's the highest level of protection. Think about criticizing a president, for instance. That's almost certainly protected. But when it comes to certain kind of, I would say, content or another word for it is topics, there are some exceptions to that protection. There are some instances where you can limit. Now, one of the most famous ones, which is relevant to your profession, is obscenity. And if the court has deemed a statute to be regulating obscenity, and it's done carefully, the definition of obscenity, then that can potentially be limited. One of the definitions of obscenity, by the way, is that it has no political value, no viewpoint in it. No redeeming, no redeeming value. Right. Yeah. I mean, you can't just be faking it or no scientific value. That's part of it, no literary artistic value. And that's meant to guarantee that this isn't a slippery slope into the realm of viewpoint. But, yes, obscenity, for instance, can be limited. Now, there are all these famous cases that we can talk about where those two things did get tricky. So think of, it's George Carlin, right, with the famous routine about the... My radio station, Pacifico, KPFK, yeah. Right, with these words. And in Carlin's monologue, when you listen to it, he's making a point about free speech, and he's using the words in the service of free speech. And he's trying to challenge, I think, this sort of idea that there might be decency exceptions, where there might be obscenity exceptions that are allowable. But the court has said, at least when it comes to obscenity, things about sex that don't have political, artistic, literary, scientific value that they can be limited. But I think the deeper response, though, like if you want a take on this discussion that you're having is that sometimes people use free speech to say, I can say whatever I want. If you try to criticize me or stop me from doing so, that's the slippery slope. And I think you can say back to them, rather than citing the law, is you might be protected in your right to say all sorts of stuff. But look, you've got a podium, you've got a place that you're standing up in front of people, try to use it to affect the good in a way that's positive. That's the purpose of free speech. That's why we have it in the first place. So I think that's kind of really what you're up to, rather than just denying, citing distinctions in the law. It's about the obligation of comics to try to use their audience and their moment in the spotlight to do something good rather than something bad. But that might be done in interesting ways. For instance, using satire or using falsehood or characters. But I think it has to be in the service of not to get the protection, but to be worthwhile. It has to be in the service of some higher ideal. Right. And I think a civilized, well educated culture can differentiate between speech that's important and speech that's trivial. We don't need to pass laws.  Harvard has every right to say, we don't want you to be part of our school. Yeah. If it were a state college, that's for next week. Right. Yeah, that might be an issue for next week. Well, you did very good. I'm going to read John Stuart Mill. I'm going to try. This was great. And we didn't get to Alexander Mikkel-John. Maybe next week. Great thinker. Equally good. Maybe better. And probably the second most influential person in the law. Okay. And we didn't get to Hugo Black, who I did read in your book. He writes very clearly. Hugo Black. No relation to Justice White. Did Black and White serve? That's a good comedy routine right there. I don't know how to do it, but it's a good premise. When I first started doing comedy, I used to do a joke about Justice Berger and Justice Felix Frankfurter. I like that already. You could really be a hit. And like if you come at conference with me. Did Black and White serve at the same time? I have to look. You know, there was Black, there was Black men, and there was White. And I don't know what the dates were. I don't feel confident saying. Okay. And no Black woman. Just Black men. Justice Berger and Frankfurter, did they serve at the same time? I would relish an answer. That's an example. So you laugh at that, but the audience? That's great.  Oh, this is terrific. This is like, you know, I always want somebody to come. I imagine that I could kind of sometimes it would just be nice to be able to make an argument. Then I'd have like a kind of assistant that would give the facts or the argument with you.  I can't do that on my own. I often come up with a premise like a dinner and it doesn't go anywhere and you get that blank stare from everyone, but I have you around that, you know. Well, Solomon, when he was going to cut the baby in half, he had a beautiful assistant who was going to cut the baby in half so people could applaud.  She didn't want the baby cut in half, but it would have been much more entertaining had Solomon had his beautiful assistant cut the baby in half. It would have been beautiful. Well, anyway, I went over my head, you know what? That's, I should take that one out. Yeah. No, we're going to keep everything in. Professor Corey Brett Schneider, you kept it clean. And I thank you. Yeah, I'll talk to you next week. Thank you, David. Thanks for listening. Please share this episode with all your friends and don't forget to do all your Amazon shopping via the David Feldman show website.  Briss studios in downtown Manhattan, Medicare for all.