Welcome to Keith Knight, Don't Tread on Anyone and a
libertarian institute. Today I'm joined by Jacob
Hubert, the president of the Liberty Justice Center.
Mr. Hubert, where is the best place for people to find the
work you do at the Liberty Justice Center?
You can read all about our work at libertyjusticecenter.org.
What was the Foreign Advisory Controlled Applications Act of
April 2024? This is a law that Congress
passed and President Biden signed in April that effectively
bans TikTok as of January 19th, 2025.
The law technically doesn't ban it.
It says that TikTok has to be divested in such a way that it
no longer has any connection to any company based in or or
formed in China because China is a foreign adversary.
And as a practical matter, that means it's a ban because TikTok
cannot be separated from its parent company.
It's unique content recommendation engine that
connects people to content they might be interested in, was
developed in and is maintained in China so that if you severed
AUS TikTok from that, it just wouldn't be the same platform
anymore. So TikTok has said credibly that
they can't divest. It's just if it takes effect,
it's just going to be a ban. And the ban means you won't be
able to get it in US app stores anymore, and they won't be able
to host anything on servers based in the US anymore.
But that's not all this law does.
This law also says that in the future, the president may
determine that any other social media platform is directed or
controlled by a foreign adversary country and it can and
declare that it's a threat to national security and ban that.
And so this law isn't just about banning TikTok.
It's about banning other platforms the government doesn't
like if it can come up with some tie to a foreign government and
say it's a threat to national security.
Historically, when it comes to what the government considers an
adversary, we've had a number of domestic groups that have been
considered adversaries. Definitions continuously change.
There were more than 100,000 people kidnapped in the Second
World War based on their ethnicity, German, Japanese, and
Italian Americans or something like this.
How does the government or how do courts determine who is an
adversary and who isn't? Well, the law says, and if I
recall correctly, it's who you might expect.
And I think it's, you know, China, North Korea, Iran,
Venezuela, probably Cuba. I think that might be it.
It's, you know, it's the big ones that they always bring up
as our major foreign adversaries, supposedly.
Yes, when it comes to Byte Dance Limited, is the claim that this
company is physically in China? Or is the claim that Xi Jinping
and his party are actually controlling this company Byte
Dance, which created or owns TikTok?
It's all hypothetical. So their offices are in Beijing,
they're in China, but there's no evidence that China has actually
told TikTok to hand over users data or has told TikTok what
post to promote or suppress or anything like that.
In trying to justify this, the government can only say that,
well, someday maybe China will do this because after all, they
are in China and China can tell companies there what to do.
So maybe they'll do something nefarious involving American
users data you don't know what. Or maybe they will manipulate
what Americans see in some way that we can't predict someday.
So therefore we need to shut the entire platform down now.
It's incredible you see how insecure the current
administration is. Or maybe it's multiple
administrations. When the government controls K
through 12 education, the government heavily funds and
subsidizes controls the literature at universities.
They have a corporate press which is constantly favorable to
the regime, and they're terrified people might
voluntarily download a free app that allows them to access tons
of free information. The very, you know, education
that governments pretend to offer us.
What is Based Politics Inc versus Garland?
So that's our lawsuit challenging the TikTok ban.
We represent Base Politics, which is a nonprofit that uses
social media, especially TikTok, to connect with young people and
give them ideas related to free markets and individual liberty.
You might have seen their founders accounts, Hannah Cox
and Brad Palumbo. They're out there a lot on
Twitter and then especially on TikTok, and they found that
TikTok is really the place where they can connect with a Gen.
Z audience that they can't reach anywhere else.
So many Gen. Z people really are only on
TikTok. They're not using Facebook and
they're not getting their news from other sources either.
They're not even getting it from traditional media and they're
not getting it from other social media platforms.
So this is the place to be if you want to reach that audience
with your ideas. And they've been very successful
at it there. They've had numerous videos with
well over 1,000,000 views news and you know, they talk about
like, oh, Communist China is going to control messages on
this platform. Well, they're preaching
individual liberty and free markets and all kinds of things
that you would think the Chinese government would not want to
promote. But and they're being very
successful at it and they won't be able to do that anymore.
They won't be able to reach this audience at all anywhere if this
ban is takes effect as scheduled on January 19th.
Interesting, I did not know that Brad and Hannah were semi
involved in this at all. That is very encouraging to
hear. I really do like both of them
when it comes to the domestic population.
So right now a lot of people are in the mindset of we got this,
but we lost the terror war of 20 years.
We thought that was going to be a great victory and really unite
the nation. So now we got to find a
different enemy and now it's going to be China, billion
people, 5000 year history. This is a really good enemy that
we can take on. How do you get people out of the
mindset of we need to take on this adversary and get them
looking at how this violates the rights of the domestic
population, Americans which they claim to protect?
Right, you should be against this ban regardless of what you
think of China. I mean I of course I don't like
the Chinese government, the Communist Party of China.
These are definitely bad people who do very bad things.
But that doesn't have really anything to do with Americans
right to use TikTok. TikTok is a Chinese based
company, and as a result of that, the Chinese government can
theoretically exert control over it in various ways.
But that's not really relevant to Americans who choose to use
TikTok. And we were talking about
shutting down TikTok. We're talking about shutting
down 170 million Americans who use TikTok to share or hear
speech, typically with other Americans.
And you hear all this about, oh, it's a, you know, an organ for
Chinese propaganda. People aren't consuming Chinese
propaganda on TikTok. They're consuming the speech of
other Americans about all kinds of things.
Of course, you have very trivial things, cat videos and dances
and whatever, But you also have people advancing serious ideas
there. And a major motivation we know
for enacting this ban was not anything to do with the Chinese
government. It actually was because people
in Congress don't like some of the things that people have been
saying on TikTok or they think they might say on it in the
future. Mitt Romney, for example, said
that the reason this got so much support in Congress was in part
because there's so much more talk about Palestinians on
TikTok than on other social media platforms.
That doesn't that doesn't have anything to do with China.
It has to do with some other issue where the likes of Mitt
Romney want to suppress dissent from the ideas they consider
right. And even now, in defending this
in court, the government comes forward and says as one of its
primary justifications that we need to shut this down because
with China could promote or suppress certain content in a
way that would, you know, affect the democratic process or affect
public opinion and in a way that goes against the US government's
interests. Well, the whole point of the 1st
Amendment is to stop the government from passing laws to
suppress speech that it thinks goes against its interests.
The fact that you guys think this goes against your interests
isn't a reason to shut it down. It's a reason why it's
unconstitutional. And, you know, as far as China
getting people's data, maybe, well, any user can make the
choice to not download TikTok and make sure that nobody in
China gets their data as a result.
Just as they make choices about whether they're going to use
Facebook or Google or YouTube or whatever, in which case their
data may be vulnerable to being accessed by the US government,
which some people might think poses a more direct and
immediate threat to themselves and the Chinese government.
Yeah, that's an incredible 1. They really have to watch out in
case we voluntarily download an app and give them our
information while the NSA lies about spying on us
indiscriminately all the time and then forces us to fund it
with our tax dollars. Just completely absurd.
What is the angle that you're planning to take in this case
when you're arguing with the Supreme Court?
Is it the same or different than how you speak to the public in
general? I mean, it's pretty much the
same in that it's a really straightforward case.
This is a suppression of free speech.
It's shutting down a platform where people can express ideas
and reach a unique audience. And that, you know, but just on
its face should violate the First Amendment.
Then you have the fact that these people who passed it said
openly that they wanted to suppress speech based on its
ideas. That by itself should be the end
of this thing. You have the fact that it's a
prior restraint on speech. It's it doesn't punish speech
after the fact. It stops speech from ever
happening. Well, that is like, you know,
almost automatic the invalidation if you're imposing
a prior restraint on speech. And yes, the Supreme Court has
said in the past that you might be able to suppress speech for
national security reasons. The court has always said that
that would only be acceptable to stop an immediate threat like,
you know, to thwart an imminent attack.
And of course, you don't have that here at all.
You have just the theoretical possibility that China might do
something that the government doesn't like.
So, yeah, it's it's it's a pretty straightforward argument.
And it's surprising really that the lower court that heard this,
the US Court of Appeals for the DC Circuit didn't accept that.
They recognized that this imposes a content based
restriction on speech. That is, the government is
singling out a particular speech based on its content, based on
the fact that it's on TikTok. And then, of course, we would
also say based on their desire to suppress this speech that
they said they want to suppress, and it said it should get the
highest level of First Amendment scrutiny.
And then it just said, well, it actually passes it because,
well, the government invoked national security.
And, you know, we're not national security experts.
We have to be deferential to the government in this context.
And. Well, yeah, TikTok has said
there are other ways the government could address its
concerns. And TikTok came forward to try
to make a deal with the government where there would be,
you know, third party protections in place to protect
people's data and all that sort of thing.
And the government rejected all of that.
And, you know, if the government has a less restrictive
alternative, it's supposed to take it under the 1st Amendment,
and they weren't willing to do that.
And the court here just said, well, they say that's not good
enough. They don't really explain why in
any detail, but they say that's not good enough.
And so we're just going to defer to them on that.
And of course, that's really disturbing that the government
could just basically say the words national security, submit
a few declarations from government officials where they
say, yeah, we really need to do this without a lot of detail.
And that would be enough for a court.
You know, another thing the government tried to do in the
lower court, they when they filed their brief with the
court, they submitted these three declarations from federal
officials, but they did it with many paragraphs of those
declarations blacked out. And then they also blacked out
many pages of their brief that they filed with the court.
And they, they said that they're going to file the unredacted
versions of those things with the court and the court can look
at that. But this is classified.
And so nobody else should get to see this, including the
attorneys for the other side. And so the court should consider
this in, in upholding our ban, but you guys can't see it and
therefore you and you guys can't challenge it.
And fortunately the the lower court said that it didn't rely
on the things that were hidden from us.
But it's quite audacious of the government's want to suppress
speech on a massive scale and then not even let you know why
or give you the opportunity to challenge their supposed
evidence. But the details of that wouldn't
matter anyway because they don't claim there's an imminent
threat. And that's what you need if
you're going to invoke national security.
Is there, I know less than anything about the law, so this
might sound like an ignorant question.
Is there any way that this could, there could be an
antitrust angle here? All I heard about for years was
that the social media companies are monopolies also.
Now we need to outlaw a competitor.
Well, two minutes ago it was dangerous oligopolies that have
too much power. So then you get a competitor who
was such a big competitor. Now you're afraid of it.
Now you want to ban it. Is there any way you could say
that it would be an antitrust violation to outlaw a competitor
in an industry that only has three or four big players?
I'm not an antitrust expert, but I think in general, if the
government does something to help prop up a monopoly and
that's, that's okay, right? That's the, the government is,
of course, the government is a monopoly and it and all the time
it does things to create monopolies and cartels and prop
them up. So unfortunately, antitrust laws
probably wouldn't work to the good in this situation.
And of course, we know that these people don't care per SE
about monopolies or concentration.
They really care about is what they can control.
And a lot of times, of course, the government prefers fewer
competitors in any kind of market because that's just, you
know, that's easier to control when you have one party or a few
parties to deal with, especially when you're talking about
manipulating speech. You know, another point on the
law I might mention that's on our side.
Something we've raised with the court is that the Supreme Court
has actually said that you have a right to obtain a foreign
communist propaganda, like from a foreign government.
There was a law passed many decades ago where they said,
well, if you get sent communist propaganda from a communist
country, the post office will hold that and then send you a
card informing you that you have been sent this propaganda.
And if you want to receive it, then you check a box on that and
you give that back to the post office and then they'll give you
your propaganda. And the Supreme Court said, no,
that's a barrier to communication that violates the
First Amendment. You can hear any ideas you want
and you can't put extra steps in the way of certain ideas.
So even if TikTok were pushing straight communist propaganda,
which it isn't this, the 1st amendment would still protect it
under a Supreme Court precedent. And they act as if TikTok is
like a thing that you turn on and it just plays one TikTok
into every household. They don't address the fact that
there's a million channels to subscribe to and you can block
channels. You can only watch the ones you
sub to. There's it's so empowering.
If you compare it to the cable that I used to have like $120.00
a month for a ton of junk that I ended up canceling.
This costs $0.00 and zero cents and gives me more access to
productive information than I ever could have imagined from
more great minds and even people who don't have TikTok accounts.
John J Mearsheimer, I can't imagine he has a tick tock
account, but he has a ton of people making tick tocks of his
work. He's much older, the younger
generation. There are so many benefits to
this. I can just imagine explaining
this to my great grandpa as he's escaping the Austro Hungarian
Empire in the First World War, that one day you'll be able to
communicate to millions or billions of people across the
world. The average person will be
empowered. Not just the establishments that
have access to the newspapers and buy ink by the barrel, but
the average person will be empowered.
The concept that the American government in the land of the
free would ban something like this that's so many millions of
Americans benefit it from, it's just absolutely psychotic.
Do you have any statistics on or any idea of the number of people
who are self-employed through TikTok who just use it as their
primary way of getting their voice out there and, you know,
gaining it monetary income? I don't have those statistics
off hand, but I do know that lots of people do make their
living through TikTok. So this not only is going to be
an unprecedented suppression of free speech, it's also going to
destroy the livelihoods of countless thousands, no doubt of
of people. It, it really is extraordinary
in that way. You know, the government will
say, well, you can still say whatever you want.
You just, you go, you go do YouTube Shorts or Facebook reels
or or whatever. But of course, you can't reach
the same audience in those places.
And a TikTok really is extraordinary in its ability to
know who is going to be receptive to your message and
connect you to those people. And it seems like I don't use
it, but it it seems like from what I hear from people, it's
really good at just catering to what is going to be interesting
to you, including things that you maybe didn't.
Wouldn't have thought to look up yourself because you haven't
heard of them, but yet somehow, based on your patterns, it's
good at predicting that. And I suppose some people find
that sort of mind reading a little bit disturbing.
But many people find it to be a great service, and they should
be allowed to take advantage of that service if they want to,
whether it's coming from a company in China or anywhere
else. And for those who find it
disturbing, uninstall the app takes what, 3045 seconds?
We have to wait for the government to come in and do
basically everything. I think that was JD Vance's
point when he was on Joe Rogan's show.
He goes, we need to really step up the regulation of social
media cause what's happening on the screen are about 10,000
things that your brain is engaged with, but you only know
about two of them. What do you think about the
argument that there is such an information asymmetry between
these content producers and the content viewers that the state
needs to step in and be the mediator, making sure that the
masses aren't exploited by the companies?
Well, what? Why would we trust the
government to decide what purveyors of information we
received which we don't? We know the government is going
to exercise that power in a way that excuse things to support
the government's narratives on things and suppress dissenting
narratives. That's expressly what they're
doing here and what we would expect the government to do in
any situation like that. And, you know, as far as
consumer awareness goes, I think people are pretty aware that all
of these platforms use algorithms to manipulate what
they see in various ways, whether that's in choosing
advertising for them and choosing what information they
see or don't see. And people have become good
consumers in a sense that if you, if you want completely free
and unmoderated discussion, people are pretty aware that you
could go to X and get that there.
If you prefer to have things more curated to your delicate
sensibilities, there are other platforms that will do that for
you. And people know that with their
cell phones, they are, they're giving away their locations
through various apps and giving away information about their
purchases and all kinds of stuff like that.
Not everybody knows the full extent, no doubt, but I think
people are pretty savvy now and know that a lot of this is going
on and by a large, people just choose to go on using things
anyway. I know all this and you know,
part of me would rather not share my information with
Google, but at the end of, well, I want to use Google Maps and I
want to use watch YouTube videos and I'm willing to pay that cost
to get this service and that should be my choice to make, not
the government's. And of course, if the if the
issue really is information asymmetry, well, fine, give
people more information, information inform people that
this is going on think they don't know.
That would be a way to address this that doesn't just shut down
everybody's speech, which is like the most extreme response
that you could have to this exactly He.
Said this on the Joe Rogan Experience which is like the
second most watched podcast in the English speaking language.
Hey, there's a ton of info we don't have.
Please tell us. I mean, surely you're smart
enough to know enough to regulate it.
So surely you could tell us and give us a fair warning telling
us to not walk off this Cliff. Could you imagine if he actually
believed that information asymmetry justified regulation?
Jacob, you can't buy a car because you don't really know
how it's made. What's going on in that car is
so beyond what you understand. I'm not going to let you buy it.
You don't understand the complexities of your computer,
so I'm not going to let you buy one of those because you won't
know what to do with it. You don't know how houses are
made, so I'm going to stop you from buying those.
My heavens. Thank God he just says this
nonsense and doesn't actually believe it.
When you look at something like the Mises Institute has all
these videos, this is the free online education.
This is right on TikTok. Stefan Molyneux, also one of my
heroes, has a ton of free information.
This guy has researched this stuff.
Even if you hate him, let's hear the bad ideas and exchange.
You know why we think they're right, why they think they're
wrong. Not to mention, I have my own
TikTok that I upload stuff to. It's just so psychotic that they
want to forcibly stop people from engaging in mutually
beneficial information exchanges.
It's like the ultimate psychopathic boyfriend who says
my my girlfriend can't talk to anyone.
Nope, just me. They might endanger her.
Yeah, right. Well of.
Course, you know, that's been the Biden administration's
attitude from the beginning. Within days after taking office,
the White House is sending messages to people at Twitter
and Facebook and so on, complaining about posts about
COVID, complaining about parody accounts targeting the Biden
family. And for their first two years in
office, they're having post deleted, having people
suspended, having people banned for dissenting from the
government narrative on COVID. And, and, you know, finally in
2023, a court issued an injunction putting an end to all
that. But the damage had already been
done there. Because when people needed to
speak about these things openly the most, they weren't able to.
But then they turn around and enact this TikTok ban.
And so it seems like control of speech online is one of the
dominant themes of the Biden administration.
And so hopefully that's coming to an end.
You know, I there may be some things to like about JD Vance
and his attitude toward social media censorship is it may be
one of them, But at least President Trump has said or
signaled that he does not support this TikTok ban.
Unfortunately, it will be too late to do it for him to do
anything about it when he takes office because he takes office
on January 20th. This thing takes effect on
January 19th. And even if when he does take
office, well, this law will be in effect unless Congress
repeals it and he signs that repeal and it passed the
bipartisan support. So repeal could be hard.
I would hope that if the Supreme Court doesn't do anything in the
meantime, that Trump would just say the First Amendment.
Trump's all other considerations.
I've taken a note to uphold the Constitution.
Therefore we can't enforce this. Therefore, we won't enforce
this, but it would be much better if the Supreme Court
struck this down so we don't have to rely on the goodwill of
a particular president. And and, you know, sometimes,
again, like as with the COVID stuff, you end up not getting
the court decisions that you want because the the court
weighs in too late after the damage is done.
The Supreme Court has an opportunity to put an end to
this before it ever takes effect.
And so that's what we're hoping it'll do.
If you look at someone like Katanji Brown Jackson, Sonia
Sotomayor, Elena Kagan, it seems like they have the progressive
worldview of looking at things through the lens of the powerful
and the powerless, the exploited and the exploiters.
Is there any way you're going to curtail this argument to where
they might be on Biden's side and feel an obligation to vote
in favor of whatever Biden had supported?
Is there anything in particular you're going to say to those
minds that you think will really be persuasive and put pressure
on them to vote against the Foreign Adversary Controlled
Applications Act? That's a good.
Question, I think, you know, as a general matter, they would
acknowledge the right to free speech online.
They would recognize that content affecting companies
content moderation policies can violate the First Amendment.
So I'm, I'm not sure they would be against us.
It's a little hard to read where particular justices will be on
this. You know, we had a bipartisan
panel in the DC Circuit Court of Appeals.
The judge who wrote the opinion was Judge Douglas Ginberg, who
has a reputation for being a libertarian.
People say, as these things go among, you know, among federal
judges. And yet the invocation of China
and national security was enough to win that judge over.
So we just have to hope that this court that's been pretty
good on speech issues in general, will will be good on
this and won't let national security concerns overwhelm
everything. Because they should recognize
that that would open the door to the censorship of all kinds of
speech, including the speech that they like, whether they're
on the left or the right. So is it that they're so afraid
of speech, the idea that, well, we can't trade with China
because, you know, the government influences these,
this product, and we don't want that here?
Well, if you haven't noticed, almost everything we have is
made in China. So it has to be a case of they
don't want access to something that could immediately update.
And, you know, next thing you know, Xi Jinping is giving, you
know, a global message to Usher and the CCP totalitarianism in
America. What is it about this that they
are so terrified about? I know you mentioned the thing
with Mitt Romney talking about people having access to the
atrocities in Gaza. Why is it that governments all
over the globe are constantly seeking to restrict speech
specifically? Why are they so insecure about
this? Well, because of course.
Speech is a threat to their power.
If they can control the narrative and control the
information people receive, there's going to be a lot less
dissent. Of course, you know, if people
had had full access to information about COVID related
issues from the beginning, it would have been a lot harder to
get them to go along with staying in their homes for
months and shutting down their businesses and not having
funerals and seeing their loved ones.
And all the all this stuff would be very much, much harder to
control in an environment of free speech than it is when
there's one message coming through the media and social
media that that makes gives the impression that every reasonable
person thinks the same thing. I mean, of course information is
a threat to government power in general.
It's why governments have always done it.
And the recognition of that is a reason why we have a 1st
Amendment. And we're very, you know, say
what you will about the Constitution in general, but
look at the countries that that don't have a First Amendment,
that the government can get away with virtually anything and
almost every other country when it comes to suppressing speech.
But we have had a lot more free expression because we do have a,
an imperfectly enforced First Amendment.
And it's really critical that the Supreme Court use it here
because this this is really where it really counts when
you're, you know, there's every First Amendment case is
important, but you know, they take on fringe issues of people
making crush videos and things like that and say that violates
the First Amendment. Well, here you're talking about
the speech of activities of 170 million people, something really
unprecedented. So I would certainly hope that
they would realize that this is where it counts.
This this is exactly what it's for.
There was a law and I want to say Prussia in the 17 or 1800s
and the wording was it made it a crime to inflamed the passions
of the feeble minded when it comes to the downsides of free
speech. Do you see any overall
downsides, all else equal, that sometimes it's better for there
to be a monopolist who says what can and can't be said in a
geographical area just for the sake of keeping order?
Just for the sake of keeping what I'm sure they would
consider to be low IQ people from having too much power in
the society to spread misinformation?
When? You said inflaming the passions
of the feeble mind that I thought, isn't that what
politicians do? Isn't that they're like their
whole deal. And so like they, they are the
ones that we should be worried about.
And so when you're suppressed, like when they're the arbiters
of what can be said and they're, and they're picking and choosing
what people can hear, that makes it less likely for the truth to
get out. Of course, when you have any
monopolist on speech, you're going to get things tilted in
favor of things that serve the interests of that that arbiter
of truth, and you get further away from the truth.
And of course, free speech doesn't guarantee that the best
ideas will win, but at least it ensures that they can get out
there so that they have a chance of prevailing.
And you don't have that if the government is is picking and
choosing what people can hear. And of course, people can, you
know, come up with hypotheticals about, well, wouldn't it
technically, you know, serve the people's interest better if they
could do it in this emergency or that emergency?
But however, that it's unlikely, it's unlikely that we need that
in any situation. But even if there is a you can
come up with situations where you might think it would serve
the public's interest, the precedent would be would be so
dangerous that it wouldn't be worth doing anyway.
And of course, putting aside the justice of the matter, which is
it's always wrong to stop people from speaking no matter what
they're saying. And certainly even from my
perspective, free speech, it is something of a dangerous thing.
Free speech means people can advocate for socialism and
communism with like the worst ideas there are.
And in some places in time, that might mean that they'll prevail.
And yet the alternative of government controlling the ideas
that are out there is is worse. Just just like with so many
rights that we have, you know, protections against searches and
seizures maybe means that some criminals will go free.
But we accept that because the alternative of the government
being able to search everybody all the time is so much worse.
And of course, those of us who believe in liberty not only
believe that that's the just thing, we also think that's
going to work out the best for everybody in the long run.
A lot of people have accepted the fundamental claim that the
state has a unique right to criminalize economic activities
between consenting adults under the guise of keeping them safe.
Do you think there's a principal difference between keeping me
safe from the food I buy, from the electronics I buy, and the
speech I hear? Why is it free speech that
people seem to get more worked up on rather than freedom of
commerce and any other product or service that they consume
Well, I. Agree, of course, that these
rights are equally important as a libertarian, and in either
case the government is forcibly interfering with the actions of
peaceful people, which I would say is always wrong.
And it may, it may be even more serious if you're stopping
somebody from earning a living in, in their profession or
whatever. The free speech, of course, we
can see how that's particularly important in the sense that if
the government shuts that down, it becomes much harder to defend
all other rights if you can't talk about it.
So, you know, there's something kind of extra special in that
sense about the 1st Amendment. We might also say the Second
Amendment in that those are sort of guarantors of your other
rights because they allow you to to speak out on behalf of those
rights and then ultimately to defend your life against threats
to your life if it becomes necessary.
So there's that. Now, the Supreme Court does
treat free speech differently, not only from, from economic
liberties, but from most other liberties in that, you know,
there's, it's one of those that the court has said is
fundamental. The court has said that we have
some rights that are fundamental.
Free speech is one. They've more recently said that
the, the right to bear, keep and bear arms is one that's good.
And and because of that, if a law infringes on those
fundamental rights, the courts will give it more serious
scrutiny, like First Amendment violations, where they're
discriminating based on the content of speech, get what they
call strict scrutiny, where the government is supposed to show a
compelling interest, which is like the highest interest, There
aren't very many of them. And that the law is narrowly
tailored to serve that interest so that the government couldn't
do what it couldn't serve its compelling interest in any other
way that wouldn't infringe on the right as much.
Now, even that is is kind of loose from our standards as
libertarians because, I mean, the first image just says
Congress will make no law. There's no well, did you have a
compelling interest? And was it like, you know,
right. It does seem, it seems like it
is and should be a blanket prohibition.
But the best we can do so far is strict scrutiny.
And they give that to fundamental rights.
But then when it comes to other rights, including the right to
economic liberty, they might recognize that the they would
say maybe that the 14th Amendment incorporates implies a
right to freedom of contract or economic liberty.
But they say that the laws that infringe on those rights only
get rational basis review where all the government has to do is
show that it had some rational reason for restricting the
right. And courts will say it's OK.
And in doing that, they don't have to prove that even that
with their law serves the interests they say it serves.
It just has to have like some kind of like they're basically,
it just has to be like a logical structure to their argument and
that and that's about it. And courts will rubber stamp
that. And of course, that's totally
outrageous. All of these rights are
fundamental. You know, the the founders
talked about life, liberty and property or life, liberty and
the pursuit of happiness. And that encompasses all of this
stuff. And of course, you know,
regardless of what the founder said, we as libertarians think
that just as your right as a human being and and none of
these things should be infringed upon.
But we find ourselves in a situation where the 1st
Amendment gets rights get better protection than most other
rights. And that means that people who
want to protect rights look for ways to frame things in terms of
free speech violations, even if there's other ways they violate
rights. You if you focus on the speech,
you might get the course to take you seriously in a way that they
wouldn't otherwise. Are you going to have arguments
structured in such a way that specifically appeal to the more
conservative mindset of seeing the world as a battle between
civilization and barbarism when it comes to someone like Justice
Thomas or, gosh, not, Scalia, Gorsuch, Kavanaugh and Coney
Barrett? Is there anything specific
you're going to be saying to that?
Or are you just looking at the Constitution hoping that that
is, that they'll uphold their end of the bargain, that that's
what they're going by, or you're going to try to appeal to them
on more of a personal level? Well, I don't know about.
Civilization versus barbarism. But of course, when you're
arguing to any judges justices, you want to think about what
they've said in the past and frame your arguments in a way
that is consonant with that as opposed to fighting against it.
You know, Thomas and Gorsuch, I think they've been, they've been
pretty consistently excellent on the 1st Amendment.
And they do take threats to to speech, including, you know,
laws that would manipulate political speech to favor one
side or the other. I think they take that very
seriously. Justice Alito has been very good
on free speech. The others, you don't have their
pros and cons from my perspective, but yeah, I mean
you you kind of do have to ultimately hope that they value
free speech enough and that the invocation of national security
is not going to shake that them from that.
But really all the law, you know, regardless of of of who
said it in the past, maybe the from conservative judges,
liberal judges, really across the board, all the case law up
till now is on our side, you know, for the reasons I said.
You can't discriminate based on content.
You can't stop communist propaganda.
You can't do, you can't just invoke national security unless
it's like imminent. They, they would really have to
depart from everything the court has said through the years on
the 1st Amendment to rule in favor of the government here.
And I'd like to think that none of the justices are prepared to
make that kind of departure. When it comes to lessons we can
learn, whether it's from these laws themselves or how the
Supreme Court's interacted with the ones that come to mind are
the Sedition Acts 1798, making it a crime to publicly speak out
against the state, the espionage or Trading with the Enemies Act
of 1917. When it comes to lessons of
American history when it comes to regulating speech, what do
you think are the major takeaways people should
appreciate and what we could learn from?
Well, you know you're. Right.
I say it's a departure. Of course, we have had terrible
violations of free speech by the federal government, particularly
in wartime. And we have the Alien Sedition
Act, terrible suppression of speech during World War One and
also some extent during World War 2.
And fortunately, protection for speech has really only gotten
better and better since then as they've brought in like all
categories of expression. They've, you know, they, they
have subjected restrictions based on their content to the
highest scrutiny and made that clear with, with some, you know,
unfortunate deviations here and there, the things that we would
like them to correct. But the, the general trend has
been in favor of greater protection of speech.
And that's a good thing. We all benefit from that.
And of course, you know it recently when we've had on
social media X bucking the trend of controlling information in a
way that the government likes. I think a lot of people
appreciate now that we're getting ideas and possibly
seeing political outcomes that we wouldn't have seen but for
that. And, and we see that the threat
is greater than ever in that, that in the way this
administration is acted where it just it wants to shut it down on
COVID. It wants to shut it down on, you
know, before that, before this administration shutting down,
you know, the Hunter Biden laptop story and all kinds of
stuff like that. They, they want to do it.
They will do it if they can get away with it at all.
And so that's why whatever you think of TikTok and the
communist government, you know, I can understand how that makes
some people uneasy because it's totally fair to hate the
communist Chinese government at least as much as you hate the US
government if you're a person who cares about liberty because
it is really terrible. But they but people shouldn't
let that blind them to the reality that this is a
censorship tool of the US government and that it will not
end with TikTok. If if this law stands because of
the power it gives the president to ban other platforms in the
future. You know, I'm sure we're pretty
confident that if Kamala Harris had won this election, we would
be soon seeing efforts to shut down X based on this law that
says if you're directed or controlled by a foreign
adversary, the president can shut you down.
Because after this law was passed, we saw stories in the
media trying to tie Elon Musk to Vladimir Putin as though he's
taking cues from Putin somehow. And that may be ridiculous.
But of course, that doesn't stop them.
They'll they'll get their narrative out there and they'll
act based on that narrative. And I think that's what we would
be seeing imminently if Harris had been elected.
But we shouldn't be complacent just because Trump was elected,
because you can't. You can't.
Although he said relatively good things about these, you can't
count on anybody. And in the long run, there may
be, there will. If this law is on the books,
there will be people who want to use it, and they will use it.
Yeah, really. Come to think of it, I guess it
is a threat to national security, not, of course, you
know, having something people can voluntarily download.
The threat to national security is one group forcibly stopping
millions of people from exchanging information.
It is just amazing to scroll through.
This is just the explorer thing. Of course, I'm logged in on
Tiktok at this point, but it's not like I get CNN and MSNBC's
Tik Toks. These are millions of views that
the average person. It is so empowering and so evil.
They want to take this away from people.
Even if you think you know it tends to be more trivial things.
Well, I've watched regular TV. It's not exactly the most
Aristotle like information coming out of the Real
Housewives of Beverly Hills or whatever people are watching in
general. And one thing on your Russia
case, President Biden was on the presidential debate stage when
he said 51 intelligence officers have said that what he's talking
about my son's laptop is a Russian plan, either said plan
or plant. This turned out to be completely
fabricated. They had no evidence when all
those 51 liars got together. Hillary Clinton said 17
intelligence agencies, military and civilian, have confirmed
that it was Russia and the Kremlin who hacked my emails.
That was a complete lie. The New York Times, I want to
say redacted, the date June 29th of 2017 comes to mind.
But these stories are completely fake and this is what I guess
because Russia would be called a foreign adversary on that day,
at that time, they could have outlawed any criticism of those
stories. So we'd be living in complete
fake Alice in Wonderland world if we just listen to the mass
murdering politicians all the time.
I'm so thankful for your time. Is there anything else people
need to know about this and where can they go For more
information? Well, I think people should know
that this this is a real and serious threat and that it's
very important that the US Supreme Court strike this down
when it has the opportunity. We'll do our best to persuade
them to do that. If people want to go more, know
more, they can go to our website,
libertyjusticecenter.org. They can also check us out on
XLJ Center or you could check me out on X Jacob Hubert.
Thanks to everyone for watching Keith Knight, Don't Tread on
Anyone and the Libertarian Institute.
Mr. Hubert, thank you so much for your time.
Thank you.