Constitutional Questions: Rights, Limits, and the Supreme Court’s Shadow

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This is Amica Salava View and my name is Jim Santel.

I am your host for this broadcast on the stations of Civic Media throughout the state of Wisconsin and beyond.

Delighted and honored to have you with me and my producer Max on this solemn, profoundly disturbing, extremely tragic, and hugely confusing time in America.

And yes, indeed, we are going to spend a good deal of our second hour here on Amicus, a lot of you this weekend's weekly review and analysis of all things related to the rule of law and law enforcement and constitutional issues and government.

We'll be spending a lot of time in our second hour providing some perspective of a constitutional dimension on what has happened this week, the violence of this past week, not only at the Utah Valley University, not only at the Evergreen High School in Colorado, but in other places around our nation, a nation that continues to be racked by violence.

We're going to talk.

as we have before about some of the constitutional dimensions of both the First Amendment, the right to speak freely in America, the limits of that, the extent of that, and what it means in 2025, what it has meant throughout most of our history.

We're also going to spend some time talking about the Second Amendment.

That's right, the Second Amendment related to firearms, what it has meant throughout most of our history, what it has meant for just the past 17 years, the confluence of those constitutional issues brought together this past week, again, at a time of profoundly disturbing conduct, supremely tragic violence.

inhumanity in our streets, in our places of education and beyond.

We're going to talk about all that and of course invite your perspectives and comments and questions that coming up in the second hour.

of our broadcast here on amicus a lot of you are going to begin with other significant also profoundly significant issues in america beginning early this week with a major yet again another major decision coming out from the united states supreme court this one again in the shadow docket

changing the way in which law enforcement does its job in America, by virtue of overruling a judge that we have talked about before on this broadcast, changing the way that law enforcement, whether it's military,

or domestic law enforcement, specifically focusing on Los Angeles.

We're gonna chat about what the district courts in the central district of California, which includes Los Angeles, have done in recent weeks, and what the Supreme Court did on Monday of this past week in overruling not only what a district court judge has said about the conduct of law enforcement in America, but also changing significantly, profoundly once again,

The ways in which law enforcement is to understand its relationship with the people that it is designed to serve.

We're going to be talking about Charles Breyer, a district court judge.

We're going to be talking about Maim Frimpong, which once again, as we have in past weeks, and we're going to be talking about a decision, once again, not only by the Supreme Court, not giving us insight into the reasons for overruling what Judge Frimpong has done.

and a concurrence that's authored by Justice Brett Kavanaugh that gives us some insight into the reasoning, the perspectives of the Supreme Court that are stunning in terms of its condemnation, its rejection of much of what we have understood to be.

the focus of law enforcement in our nation that begins our discussion here on amicus a law review we are necessarily going to move from that into yet another theme that we have visited before and that is the continued diminution of the rule of law in america this one as we have talked before inside the federal judiciary the dismay

the disarray that is happening as a result of the Supreme Court's continuing practice of issuing these one line or two line or two or three paragraph orders that give us and give lower courts no sense of the reason why they're doing what they're doing.

It is called the emergency application docket.

It is called the shadow docket.

We have talked a lot about it on this broadcast and others.

To this date in this year alone something in excess of 20 of these applications a lot of discussion going on We talked last week about some of what Amy Coney Barrett is saying about that in her new book We've talked a lot about what people like Elena Kagan and Sonia Sotomayor have said in condemning this practice

This weekend, we talk about the further fracturing of the federal judiciary.

That is, judge versus judge, judges versus justices, based upon the incapacity of the lower courts to understand what our Supreme Court means, what it intends.

It involves, yes, another briar.

His name is Stephen Briar, who in this mess of a time,

At a time when the judiciary is fracturing, fraying around the edges, a former chief justice coming to the defense of a district court judge who felt the need himself to apologize, believe it or not.

to members of the Supreme Court for failing to understand what they meant in these non-specific, undescribed decisions of theirs.

If you follow all that, if you follow all that, you understand where this is going.

I'm going to straighten it out for you.

I'm going to hopefully explain to you how we got to this circumstance and what it is that this event involving an apology from a lower district court judge to members of the Supreme Court for failing to do what they apparently assumed

knew they had to do.

We're going to talk all about that.

And then we're going to go from was basically the first circuit and a case there to the fourth circuit, another circuit, another appeals court in our nation.

We're going to talk about the disarray that it expressed openly from the bench this past week, this past week, Thursday in connection with this attempt to try to understand another case on its stock.

expressing concern across the board and on bonk proceeding.

That is all the members of the Fourth Circuit Court of Appeals coming together and scratching their heads collectively about what they are to do when they're given no direction by the Supreme Court.

The further fracturing internal to the federal judiciary of understandings between and among them, the look from all of us

to the Supreme Court for direction and assistance, and the continuing practice of our Supreme Court of not giving that direction.

Why?

Why?

We don't know.

We don't know, and that's part of the frustration.

Again, we know that there are Supreme Court justices who are bemoaning the fact that they do not understand, as we do not understand what is going on here, other than to say, as Katangi Brown Jackson has said in recent times,

that it is Calvin Ball.

You may recall this reference that she invoked recently saying, there are two rules now in the Supreme Court, Calvin Ball, which comes from Calvin and Hobbes, that comic strip.

She said it's Calvin Ball in the Supreme Court, which means there are no rules at all, or alternatively, the only rule that does apply is that the administration wins.

Those are heavy words.

Those are significant words.

Those are condemning words inside the Supreme Court.

We're going to spend some time talking this weekend once again about the fracturing internal to the federal judiciary as a result of the conduct of the Supreme Court and the failure of the Chief Justice to take a hold of this and make sense of it and do something as simple as either giving us

directions giving lower chords instruction or simply deciding not to take all of these emergency applications and to say no go ahead and have them litigated in the due course.

and have these cases percolate up as all of the other cases in the merits docket do.

There are 65 of those as we have discussed in the past in this present term.

There are about 32 on the docket of the Supreme Court term beginning anew in just three short weeks, the first Monday in October.

That's the way it should happen.

And again, we're going to be talking about the ways in which the present system fractured as a result of the shadow docket, run amok in America, not giving us instruction, not giving lower judges instruction, a further diminution of the rule of law.

In a week that has seen a lot of that, a diminution once again in the piece that we think America should be all about, a diminution in the calm

and the security and the safety that we should assume.

And yet, we no longer can assume that because of the violence in our midst.

Once again, we're going to be spending a lot of time talking about freedom of expression, the limits of that.

We're going to be talking about freedom is to carry and use firearms and the limits of that as well.

First and second amendment issues, all of that coming up in the second hour here on Amicus, a law review, necessarily going to be doing a little bit of rule of law snapshots, some things that

have fallen to the cutting room floor in recent weeks, including, including just in recent days, a major decision by an appeals court upholding that major multi-million dollar judgment entered in favor of Eugene Carroll against our present president for defamation, another First Amendment issue.

We're going to talk about a Google judgment that another district court has entered just recently.

We'll talk about the fact that Jair Bolsonaro has been sentenced just this past

week resurrecting discussions we've had in the past about him and the connections between Brazil and our nation and our president and that former president and yes time permitting we'll talk a little bit about something positive which is a Seattle Police Department oversight system from the Department of Justice remedying problems remedying problems inside the Seattle Police Department now bringing those to conclusion not not prematurely but after a recognition that

Many of the problems of the past there in Seattle have indeed been resolved.

All those things coming up here on Amicus, a lot of you, those last things in the category of snapshots.

important, important to understanding what is going on in our nation.

And that is where we begin.

Let us begin in Los Angeles as we have before.

Let me talk about one of the two Breyer brothers that we're going to be spending some time talking about this weekend.

Charles Breyer may recall a number of weeks ago, actually early in the month of September, entered into an issued an order.

Effectively telling the administration that it's use of thousands of military

troops in Southern California by this president, by this administration, effectively turning about 5,000 Marines, National Guard soldiers into a national police force.

Charles Breyer, Federal District Court, found, we have talked about this before, that that's illegal and the president has no authority to do it under a number of

analyses and not just interpretations but sound legal conclusions entered by Judge Breyer telling the president that he has no authority to do all of these things that he has done in Los Angeles.

You may recall well the import and the effect of that order.

and the significance of a finding by a federal district court judge that the president does not have the authority to do what he is doing at least in los angeles the jurisdiction there that is different that is different although related to

Another decision of one of Judge Breyer's colleagues.

Her name once again, Mame Frimpong.

We have talked about her as well, not too long ago.

Again, a district court judge there in Central California placed some very significant restrictions on the president's efforts, even in the midst of the presence of that illegal force in Los Angeles.

Restrictions on the capacity of that force, that military now, domestic force as well, to detain and arrest people on the streets.

and involving also ultimately nasty portations.

You may recall Judge Frimpong ordered agents not to rely on several factors and to rely once again on what's called reasonable suspicion, which has been and always is the law of our land.

When we come back, we'll talk more about reasonable suspicion about Judge Frimpong and about what the Supreme Court did with respect to her order earlier this week, all that coming up on Amicus, a law review.

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My name is Jim Santel.

This is Amicus, a lot of you on the broadcast stations of Civic Media.

Thank you.

I appreciate your involvement in our very important discussion this weekend of the rule of law, of the involvement of government in our lives, the importance of the Constitution of the United States of America, and the role that judges play.

If you want to be a part of that discussion, you can call Max, my producer, and me at 855-752-4842.

That number once again is 855-752-4842.

You can also drop a note into our chat box and be a part of

important discussion.

We are beginning that review, that analysis here on Amicus, a law review by talking about something that the Supreme Court did on Monday of this past week that once again changes dramatically the relationship that each one of us has with law enforcement in America, the way in which they conduct their jobs in service to us, their constituents.

It is yet another example of the

shadow docket run amok in america although this time we've got some gloss some explanation if you will from one of the justices that provides even more reason for discontent and dismay and wonder about what the supreme court is doing let's back into that once again by talking about judge maim frimpong i have spoken a lot about her in the past because she is the one who was assigned to this matter

to this case, even as the military and domestic law enforcement was in and remains in Los Angeles, trying to address issues related to immigration and public protest and all those other things, hugely controversial, controversial there, of course, in other places around the country.

The aggressive law enforcement operations there, encounters, many of them captured on video, rounding up.

Hispanics and other people in that area by armed agents became the source, the predicate for a lawsuit brought by some civil rights groups, some individuals, they were accusing the administration again of placing military and placing those military folks in a domestic situation in an unconstitutional way.

engaging in unconstitutional, equally sweeps of thousands of people, arresting them, detaining them, bringing into them custody.

The complaint that they brought, a civil rights complaint in the federal court there in Los Angeles, said that the administration was guilty of quote, indiscriminate immigration operations, sweeping up thousands of day laborers, carwash workers, farm workers, caregivers, and others.

And as a result of that,

The complaint went on to say individuals of brown skin are approached or pulled aside by unidentified federal agents suddenly and with a show of force and made to answer questions about who they are and where they are from that according to the complaint, the civil complaint.

under the Fourth Amendment prohibition against unreasonable searches and seizures.

Now, that case, that civil case, long ago, and by that I mean weeks ago, assigned to Judge Mayne Frimpog.

She's a district court judge in Los Angeles, and she has a hearing, and she takes testimony and evidence on all this.

She hears from people who describe exactly what the complaint describes in writing.

This is not a judge who simply read the complaint and said, I'm going to respond.

She took testimony,

under oath of people who describe the things that happened to them and to others.

And she made specific findings about all this.

We discussed those in the past.

And in the end, she placed these very significant but longstanding restrictions on President Trump's effort to do what he is attempting to do with respect to immigration arrests there and in other places.

She ordered agents basically to comply with the law that has been in place for decades, if not longer in America, that required

that when police officers detain and arrest someone on the streets of our nation and our cities, our municipalities, our towns, our villages, that they have what's called a reasonable suspicion to believe that that person is engaged in a violation of the law, that they have committed some crime perhaps, some violation of the law to give them the suspicion

that is reasonable to believe that that person should in fact be detained, taken into custody.

It is the lowest standard possible.

When it comes to law enforcement, this is not probable cause.

This is not clear and convincing evidence.

This is not compelling evidence.

It certainly is not proof beyond a reasonable doubt, but it gives law enforcement a standard by which to arrest if appropriate.

people on the streets and yes indeed it is invoked routinely by good and decent and proper law enforcement authorities throughout our nation every single day in America.

What Judge Frimpong said is, because you've got to have reasonable suspicion, what you can't rely upon are things like race or ethnicity.

You can't rely upon, you can't detain people simply because they're speaking English or some form of accented English.

You can't arrest or detain people because they're found at a particular location.

And that includes, for example, a place of day labor or an agricultural site.

You can't detain people because they're performing a particular kind of work.

You can't do any of that.

Why?

Because none of that is illegal.

None of that rises to the level of a reasonable suspicion.

And so she says, Mr. President, when you send these troops and when domestic law enforcement also engages in these mass arrests, you've got to make certain that you're doing it based upon reasonable suspicion.

She's not shutting it all down.

She is saying that, yes indeed, if people have committed crimes or

Perhaps have committed criminal acts.

They should be detained.

They should be arrested.

But law enforcement has got to have a basis upon which to do that.

That has been the law.

It goes up to the Ninth Circuit Court of Appeals.

We've talked about that as well.

The Ninth Circuit looks at Judge Frimpong's decision and says, yes, indeed, this is the law, not just in Los Angeles, not just in California, but throughout the United States of America.

It's reasonable suspicion.

It is how law enforcement officers are taught every single day of the week.

It's what I taught when I was an assistant U.S.

attorney, when I was U.S.

attorney and most recently had the great privilege and honor

at the invitation of one of our now former sheriffs in Milwaukee County to teach this very issue to incoming deputies of the Milwaukee County Sheriff's Department.

We do this all the time.

It's reasonable suspicion.

And she said, abide by the law.

The Ninth Circuit said, yes, abide by the law.

Abide by the law when you come in and make these detentions and these arrests.

In the end, the Supreme Court said, no.

And on Monday, reverse that.

Vacate that opinion when we come back.

I'll tell you about the stunning decision of the United States Supreme Court in the wake of that decision by this district court in Los Angeles.

That, as Amicus, a lot of you, continues.

This is Amicus, a law review.

My name is Jim Santel.

We are talking about the rule of law as we always do on this broadcast.

Great concerns that all Americans should have, regardless of party or regardless of partisan views about things which there are many in America.

This goes to the core processes that all of us rely upon in which we, through which we depend upon our government to make decisions and tell us what the law is, this lawsuit.

Resolved at least initially by Judge Frimpong in southern and central Los Angeles in in central, California in Los Angeles In which she says you've got to have reasonable suspicion upon which to arrest people goes goes to the Ninth Circuit where it is still pending by the way They do not overturn her opinion It is still pending which is a part of what we see routinely when it comes to these shadow docket cases But instead instead the government the solicitor general

hear from him in just a moment or so.

John Sauer goes to the Supreme Court and says, stop what Judge Frimpong is doing.

Tell her that she's wrong about this and let us do what we need to do to address this problem.

And on Monday of this past week, the Supreme Court says, yes, we are granting that application.

They do so without the normal review, without the normal briefing by attorneys, the oral arguments we talk so much about.

And they issue an order basically saying, although not saying,

that Judge Fremplong is wrong about this.

The brief order is unsigned, gives no reasons, simply saying her decision is vacated, it's overturned.

and we'll get back to the serious nature of that problem in just a moment.

Interestingly here, however, one of the justices who is in the sixth member majority, we know the three of them dissent on this, his name is Justice Brett Kavanaugh.

He is in the majority and he writes a lengthy concurrence and he is the only member of the majority who does that and he justifies what the Supreme Court has done.

And so it gives us at least some insight, although it's horrific insight into why the Supreme Court is done.

what it has done.

He says this, he says about 10% of the people in the Los Angeles region are illegally in the United States, meaning about 2 million illegal immigrants out of a total population of 20 million.

And what he is saying there and what John Sauer, who is your Solicitor General has often said and says again here in this petition for an emergency application is, doesn't really matter.

that we apply these standards, because if you ramp up and you bring together 100 people, statistically 10 of them, 10 of them will have violated the law with respect to immigration or perhaps other issues.

And so that's sufficient.

That is sufficient statistically for doing this kind of thing.

John Sauer, when he applies for this, he says,

that in many situations, these factors, which Judge Frimpong has described, can heighten the likelihood that someone is unlawfully present in the United States.

He says, above and beyond the one in 10 baseline odds in the district.

That's your solicitor general, your petitioner to the Supreme Court saying, ah, the odds are that we'll collect up some people who have violated the law and that justifies it.

Arguably even more significantly, Justice Kavanaugh and the Solicitor General both say this, any one of those factors that Judge Prympong identified individually, that's right, they're not sufficient.

Any one of those in particular doesn't do it, but if you bring them all together.

And you put them together in a pot, in a soup, and even though individually none of them rise to the level of reasonable suspicion, then you've got it.

If you put all of those together, you've got enough to arrest.

Just as Kavanaugh said, the four factors identified by Judge Frimpong can play a rule.

role rather in determining what the rules are when it comes to making these detentions.

He said unauthorized immigrants often work as the day laborers in landscaping and agriculture or construction entities and many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.

That's what the

Justice said he said apparent ethnicity by itself is not permissible not a basis alone to stop someone but here we go it can be relevant in consideration in combination with other factors none of those factors providing that reasonable suspicion but you put them all together put them all together and then you've got a basis

to arrest and to detain.

I would offer you that that is a stunning change in the way that law enforcement works in America.

And indeed, this order is being condemned across the board, at least among those people who are concerned.

Again, Republicans and Democrats alike, everyone in the political universe looking at this and saying, what is the standard today?

After Monday, what is the standard now by which

Police on beats in America can detain and arrest people.

In dissent, Justice Sonia Saitamaier writes at the administration and the Justice Department.

and Justice Kavanaugh have all but declared that Latinos, US citizens or not, who work low-wage jobs are fair game to be seized at any time, taken away from work and held until they provide proof of their legal status to the agent's satisfaction.

She was also critical of Justice Kavanaugh's statement.

His defense of what he said were the agents' brief stops for questioning.

Justice Sotomayor responded to that by saying, this countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact that they are making a living by doing manual labor.

Today, the court needlessly subjects countless more to those exact same indignities.

Just as Kavanaugh says, well, if that happens,

You can always sue those agents for use of excessive force.

That's in violation of the Constitution.

That's right.

He's right about that.

But that's the remedy.

That's the remedy that Justice Kavanaugh offers in all of this.

Again, the decision by Judge Frimpong was appealed to and affirmed by the Ninth Circuit, refusing to pause the order, even as it continues to resolve the underlying issues.

The Supreme Court

decision is troubling, just as sort of Mayor says, for yet another reason.

And that is, it is entirely unexplained.

Yes, indeed, you do have Justice Kavanaugh who pens his own concurrence to this.

She says, that's a problem too.

She says, in the last eight months, this court's appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially.

Its interest in explaining itself, unfortunately, has not.

And so this major decision

or non-decision coming from the Supreme Court on Monday overturning effectively an appeals court, a district court judge, changing the way in which law enforcement works, done without description, done without explanation to you, to me, to others of all sides of the political spectrum.

Everyone should be concerned about this, and indeed,

Not only are the people in America concerned about this, but so is a subset of people in America, and they are the federal judiciary who are rising up more and more dismayed and disgruntled by the fact that they're getting no direction from the United States Supreme Court.

Let's go to another case of Justice past week, one of two of them.

This shows the intramural disputes between district court judges and Supreme Court justices present and past.

How do we get there?

You may recall a couple of weeks ago, we

talked about this confusing serpentine circuitous use, whatever adjective you want, decision about whether or not the Trump administration can cut these National Institutes of Health grants, about $780 million in grants designed to do all kinds of things.

Supreme Court, again, issues and order.

five justices that let's stand for now the underlying ruling that the policy cuts are unlawful.

But along the way, well it says that the policy underlying this is wrong permits the $780 million in grants that were canceled, permits that cancellation to remain in place.

It's confusing at least.

It's circuitous, it's scrambled, and all of us scratch our heads.

Amy Coney Barrett finds herself in both majorities to further underscore

the confusing nature of this and the fact that the Supreme Court does not give anybody more description about why these grants in part are canceled and remain so, but future grants

Those may not be, maybe, sort of, kind of, depending upon what the Supreme Court is meaning by all that.

Well, it happens again this past week that the lack of decision-making, the lack of description by the Supreme Court, props an apology, believe it or not, from a New Hampshire judge.

And his name in particular is William Young.

He's the federal, I'm sorry, he's a federal district court in Massachusetts.

And his posture highlights the great

precarious position that district court judges around the country are now finding in trying to interpret what this is all about.

Again, the NIH grants in particular the Supreme Court issues this odd decision, allowing the Trump administration to go ahead.

with determinations while simultaneously signaling that the president's policy might be unlawful.

So what happens is that in another case involving education grants, not the NIH grants, Judge Young against, again, Judge William Young, Federal District Court, Massachusetts, he says in June that those grants in the education department can't be canceled.

And he is scornful.

He is dismissive of what the administration says.

the grants again support all kinds of things like preventing suicide and chronic diseases and Alzheimer's and HIV and the court Judge Young describes all that and he denounces the cancellation of those of those various grants calling the terminations appalling and declaring that it is his duty to call out the Trump administration on the apparently discriminatory calculus he orders that the funding be mostly reinstated.

and in the wake of his doing that again this is respect to the n i h grants the supreme court in particular two justices two justices along the way their justice gorsuch and again at justice kavanaugh say that judge young is acting in violation of what the supreme court has said because he's failed to follow what the supreme court has said in another case also under the

emergency docket in the education forum.

Judge Discourses writes, lower courts may sometimes disagree with this court's decision, but they are never free to defy them.

And he goes on to say, when this court issues a decision, it constitutes a precedent that commands respect in lower courts.

And so Judge Young, who is resolving this NIH matter, is obliged to interpret the

singular sentence or two in the education matter as applicable and follow that.

And he gets admonished by these two Supreme Court justices publicly for doing what he is doing.

And Judge Young, to his credit, comes back and he says, gosh, I'm very sorry.

I did not know.

I did not know that I was defying what you wanted me to do, justices.

He comes back and he says, I never intended to that.

He said,

implicitly if not expressly that the applicability of one emergency order as to another case is was not clear to him it comes at a hearing on tuesday of this week to discuss how to move forward after the supreme court in august overruled his decision

to block those grants involving those hundreds of millions of dollars in NIH.

And again, in the wake of all of this, Gorsuch and Kavanaugh criticized him because he failed to follow what the Supreme Court has said when it comes to grants in the education area.

Judge Young was saying he had not realized.

He was expected to rely on a slim three-page order.

Issued with minimal legal reasoning in April to his case dealing with a different agency said this this is judge young before we do anything I really feel it's incumbent upon me to on the record here to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done in defiance of a presidential action of the Supreme Court of the United States of America is Intentional never intended to do that.

He said I can do nothing more than to say as honestly as I can this

as Judge Young apologizing to Supreme Court justices, I certainly did not do so.

I didn't intend to do this.

And it is foreign in every respect to the nature of how I've conducted myself.

as a judicial officer.

When we come back, I'll tell you more about Judge Young's apology and the response by a no longer sitting justice of the Supreme Court defending Judge Young among this mess caused by the Supreme Court in his failure to provide instructions to all of us.

All of that as Amicus the Law Review continues.

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Find the latest news, information, and archives of all your favorite shows on the Civic Media website, civicmedia.us.

My name is Jim Santel.

This is Amicus, a lot of you.

We are talking about the foreseeable consequences of this continuing practice of the Supreme Court to issue all these emergency docket orders.

One sentence, two sentences, three, four, five.

not providing instruction to the lower judiciary, not providing description to us about the reason why it's doing all these things now, coming to Roost, coming home.

And the...

situation prompts a fracturing inside the judiciary itself about what is supposed to happen here.

You've got William Young, who has now found himself having to apologize effectively to justices Kavanaugh and Gorsuch because he unknowingly failed to interpret a one sentence order in a case involving education grants to a pending case in front of him involving NIH grants.

And we've got Judge Young taking the high road.

Very contrite, very, very above all of this and saying, listen, I had no intention of violating what the Supreme Court had done.

He says, in fact, that I have served as judicial officer for over 47 years.

Never before this admonition that I've gotten by the Supreme Court has any judge in any higher court ever thought to suggest that this court has defied the precedent of a higher court.

That was never my intention.

He went out of his way in stressing that it was never clear to him that this court's emergency application and its ruling in that education case, one sentence, represented its thinking in other instances of federal grants the Trump administration has also slashed.

He said, I simply did not understand that orders on the emergency docket were precedent.

I stand corrected, interestingly.

Here's your civics footnote for the day.

In a 2021 speech, Justice Samolito said, a ruling on emergency application is not precedent.

Is the confusion any more profound than it could be here?

Judge Young is 84 years old.

He's still on the bench.

He's a senior judge.

He was confirmed as a federal judge before either of the justices, Kavanaugh or Gorsuch, who criticized him, who admonished him.

and scolded him, he's sitting as a federal judge even before any of the two justices had started law school.

And he says the justices rebuke were nothing they had seen in nearly five decades as a judge.

This is falling apart.

this is falling apart.

And indeed, if you think the story is over, it is not.

Because in the wake of all of this mess caused by the Supreme Court and completely at the feet of the Chief Justice who permits all this to happen, we've got Stephen Breyer.

This is not Charles Breyer, the judge, the district court judge in Central California.

It's his brother, Stephen Breyer.

They are brothers.

Justice Stephen Breyer, as you know it well,

also formerly of the Supreme Court, Justice Stephen Breyer comes to the defense of Judge Young and says he praises Judge Young and he says he's a model jurist whose rulings he had often reviewed during his 14 years in appeals court in Boston and Judge Breyer.

Judge Breyer, without mentioning Gorsuch or Kavanaugh, who admonished Judge Young, says this.

He says, I never saw an instance where he, Judge Young, would deliberately defy a controlling opinion of legal statement from our court or from the Supreme Court.

I never even had an instinct or a guess or a hunch or anything that he was doing, anything like that deliberately.

You've got a former Supreme Court justice telling

present Supreme Court justices to back off.

To say that your criticism of this outstanding multi-decade tenured judge on the bench who's doing his job as best he can is wrong.

And again, Justice Stephen Breyer admonishing now justices Kavanaugh and Gorsuch for their condemnation of Judge Young.

That's the situation we are in these days.

Justice Breyer said he knows that Judge Young would never have done that.

He said he was honest.

He was a straightforward judge, a very decent person and a good judge.

That's Justice, now former Justice Stephen Breyer telling Justice Gorsuch and Justice Kavanaugh, in fact, they're wrong about this.

Clean up your act.

give all of the judges, including Judge Young and others, instruction, and maybe they'll do a better job in trying to interpret what it is that's coming out of the Supreme Court.

And yet, there's more.

There is more this past week, more judicial disarray, more fraying at the corners and right in the middle.

Let's begin to talk about the Fourth Circuit Court of Appeals.

That's the First Circuit.

That's the First Circuit, again, including Massachusetts and other New England states.

What is the Fourth Circuit?

Maryland.

You know that because we've talked a lot about those cases, including the Abrego Garcia case coming up from Judge Zinnis, going up to Harvey Wilkinson, who we'll hear from again.

Fourth Circuit includes Maryland and Virginia, West Virginia, North Carolina, South Carolina, kind of the Central Atlantic states there.

The Fourth Circuit this past week,

Also, not just scratching his head, its head, its collective head, but bemoaning the fact that the Supreme Court, once again, is not doing its job in providing instruction to the lower courts.

They're on the bench, they're in an en banc preceding this past week, all of them together, and they're questioning whether they still had a role to play in the adjudication of cases in front of them because of the lack of clarity coming out of the Supreme Court.

whether they should simply reiterate the High Court's orders and leave it at that, not resolve any things.

Here is what one of the judges on the Fourth Circuit said.

They're leaving the circuit courts, the district courts out in a limbo.

That's from Judge James Wynn.

And he says this during oral arguments this past, we get a case about the Musk team's access to social security data.

That's the case under which this comes up.

And Judge Nguyen, again, Fourth Circuit Court of Appeals said, we're out here flailing.

Flailing, he says.

He says, I'm not criticizing the justices.

Well, I think you are, Judge Nguyen.

He says, they're using a vehicle that's there, but they are telling us nothing.

They could easily just give us direction and we would follow it.

And goes on to say, they cannot get an amnesia in the future because they didn't write an opinion on it.

right and opinion.

When we come back, I'll tell you more about what the Fourth Circuit did this past week, and then we'll go on to other rule of law issues in America, including issues related to the First and the Second Amendments here on Amicus Allaw Review.

This is Amicus Allaw Review.

My name is Jim Santel.

I am your host for this, the second hour of our weekend broadcast.

analyzing, discussing, reviewing all things, rule of law related, justice related, and yes, course related, a lot of focus on that in this edition of Amicus a Law Review.

It can be a part of our discussion at 855-752-4842.

We'll get to at least one caller, if not more in this hour.

Talking right now about the continued fraying inside the judiciary.

of understanding is about what the Supreme Court means when it fails to provide information, description, explanation of what it's doing on this emergency docket.

And the consequences of that, not only for the litigants who don't know what they mean, but now also the lower court judges, including Judge Young of the Federal District Court in Massachusetts and others,

talking right before the top of the hour break about the Fourth Circuit Court of Appeals, the Fourth Circuit, again, a number of judges.

These are appellate court judges right below the Supreme Court, talking about how the Supreme Court is leaving us in limbo.

The case in front of them this past week for oral argument, having to do with Elon Musk's access to social security data, which stunningly the Supreme Court permitted the Musk team to have again, without oral argument, without briefing and simply a one sentence order, permitting them to go ahead to do the work that they've got to do.

And as a result of the continuing litigation before the force circuit, the judges, including Judge James Wynne saying, we're out here flailing.

He says, I'm not criticizing you, but you've got to tell us what to do.

He says they cannot, they meaning the Supreme Court, cannot get amnesia in the future because they didn't write an opinion on it.

He says, write an opinion.

We need to understand, he says, why you did it.

We judges would just love to hear your reasoning as to why you rule that way.

It makes our job easier.

We will follow the law, he says.

We will follow the Supreme Court, but we'd like to know what it is we are following.

Wow, wow.

Judge J. Harvey Wilkinson, we have talked about him a lot before.

He's the one who issued this major opus on the rule of law in the early part of the 21st century, having to do with affirming the lower court.

Judge Zinnis, when it came to our administration of that, a Brego Garcia case, he said, the Supreme Court's action must mean something.

It doesn't do these things just for the kicks of it.

Supreme Court, again, has got to tell us what it means.

The Fourth Circuit judges are calling upon the Supreme Court to do its job.

This is not just me talking.

This is not just Littigan's talking.

These are now appeals court judges.

These are district court judges, including Judge Young in Massachusetts in the First Circuit, complaining about what's going on in the rule of law in America.

And there is more.

In a ruling just last week in another high-profile case, we've talked about this as well.

This is the Trump administration targeting Harvard University, those research grants.

U.S.

District Court Judge Allison Burroughs, we've talked about her a lot, we've heard from her a lot.

said that a series of High Court rulings on the administration's efforts to end various government grants, quote, have not been models of clarity, once again, a wild understatement.

She says, and they've left many issues unresolved.

She adds that sometimes those rulings appear to shift the law without much explanation or consensus.

They appear to shift the law without explanation or consensus, and that brings us back again to Judge Frimpong.

and what the Supreme Court did just less than a week ago in changing the law with respect to detentions and arrests on the streets of America, causing not just confusion, but complete bewilderment about what now law enforcement is supposed to do, not just in Los Angeles, but around the country, in Wisconsin, in Arizona, in Florida, in Louisiana, in Maine, you name it, wherever you are, and judge...

Burroughs saying that you're leaving issues unresolved, not telling us what the law is without explanation.

Judge Frimpong got it right.

Judge Young got it right.

And I would offer to you that as we think about what's going on in America, again, this internal dissolution, if you will, of the rule of law inside, not just, not outside the federal judiciary, judges internal to the system complaining about what the nine or at least six of the nine justices are doing.

All of that, a reflection of where the judiciary is in America today.

We know that there are three judges, justices on the Supreme Court who are also complaining about that.

We know that Justice Elena Kagan, as we've reported here on this broadcast, earlier said this.

She said, I think as we have done more and more on this emergency docket, there becomes a responsibility that we didn't recognize when we first started down this road to explain things better.

I think we should hold ourselves sort of out on both sides to a standard of explaining why we're doing

what we're doing.

She goes on to say that even two or three pages of explanation would be helpful, more than just one sentence, right, Elena Kagan?

To just sort of say, here's the basic issue, the basic problem that we see, go fix it.

That's a sitting Supreme Court justice.

And she is joined, of course, by Katangi Brown Jackson and Sonia Sotomayor.

and even very much around the edges a little bit.

A little bit.

You've got Amy Coney Barrett at least acknowledging the nature of the problem also defending the practice in her recent book.

There is a problem in America and we need to let those judges and justices who are standing strong against this

procedural thing that is, I know, it's a lot and it's very wonky and it's very down the rabbit's hole and it's very academic.

I understand that completely.

It's very law schoolish, but it is important because the world is changing.

The nation is changing based upon the use of this procedural mechanism that has not been used before at the level that's been used now.

During the

Bush and Obama administration 16 years, it was invoked eight times the Supreme Court granted emergency applications four times.

In Donald Trump's first term, 40 applications.

In the first eight months of his term right now, he's applied for it.

23 times and been granted in most of those.

And our justice system is failing because of that.

Judges don't know what the Supreme Court means, and we don't know what it means either.

Right to Judge William Young.

William G. Young.

Federal District Court in Massachusetts.

Right to Maine, M-A-A-M-E-E, Frimpong, F-R-I-M-P-O-N-G.

She's a U.S.

District Court judge in the Central District of California.

That's Los Angeles.

And let them know that you appreciate their, their writings.

We appreciate the fact that Judge Young.

50 years on the bench, senior judge now doing all of this work, still at the age of 84 doing all this work, tell him that we appreciate the work that he's doing and while we appreciate and we do appreciate and we embrace his apology, which he didn't have to do to the justices, the reality is he's apologizing for something that's not his error.

And that's exactly what former Justice Stephen Breyer

is saying and admonishing his former colleagues for attacking judge young following all of that following all of that drama at the supreme court level it's a lot it's a lot and it's also reflective of what the supreme court is doing today and it is i would offer in part the reason why the supreme court's overall sense of integrity and reputation and cohesion and coherence

And descriptive clarity has been compromised.

A year ago we were talking about ethics issues.

Now we've got this.

Chief Justice John Roberts, you've got to do something to address these issues.

Follow what Justice Elena Kagan and others are saying and drop this practice.

Or if you need more time, do that.

We'll give you more time.

All of us will to issue those major opinions or simply say, you know what?

Let the litigation go ahead in Los Angeles and in Boston and other places.

We'll take it up as we normally do on the merit stock.

It will resolve these cases when they come up.

Eventually, we don't have to be entering all of these emergency applications because they're truly not emergencies.

Say that, Chief Justice John Roberts, and clean this up.

for all of us.

That's the encouragement today on Amicus, a law review.

As a part of this, of course, we continue to recognize that lower courts continue to do a lot of work both in our nation and, yes, indeed, in other nations.

Let's do some rule of law snapshots before turning to First Amendment and Second Amendment issues in the wake of the violence in our nation of justice past week.

Let's go to Brazil.

Brazil's former president, you know we've talked about him before Jair Bolsonaro sentenced to more than 27 years in prison late this past week for overseeing what?

Describe this before that failed coup he's charged under the rule of law system there for a plot a failed plot

much like our own here in the last days of the Trump administration, the first Trump term, of losing the 2022 elections there.

It is a landmark ruling for Latin America's largest nation.

Bolsonaro convicted of doing what?

Orchestrating, does this sound familiar?

A conspiracy that included overturning the vote.

attempting to affect and dismantle the courts, handing special powers to the military, attempting to assassinate the president-elect who won the election in the end.

Bolsonaro has denied doing any of that, but now he has been convicted and he has been sentenced.

It's the first time in Brazil, a nation with, of course, a long history of coups.

We now have one in our nation as well, an attempted coup.

holding him accountable for doing that now realistically

uh... both scenario will while he's in sentences twenty seven years and three months it's unlikely he's going to spend that time will likely be given that summer commutation because of some health problems he attributes a lot of those two complications from a stabbing attack on the campaign trail in two thousand eighteen significant that that in brazil they held a former president responsible for an attempted to cool to overthrow a legitimate election and they sentenced him

to prison.

He is right now in home arrest and he is now convicted.

The sentence itself can be appealed.

The underlying conviction cannot under the Brazilian system.

That's number one.

Let's talk about some other things that have happened in America, in the courts here as well.

Let's talk about what's going on with respect to Eugene Carroll.

An appeals court just this past week upholds Eugene Carroll's

Hold on, as you know, recall this well, $83 million judgment against the current president.

His name is Donald Trump.

Federal appeals court upholds that judgment for defaming, defaming Eugene Carroll after she accused him of a sexual assault that happened in that Manhattan department store, Bergdorf Goodman, an attack for which he was separately found liable for sexual abuse.

All of that remains in place.

The appeals court this past week unanimously upholds that underlying judgment granting her 83 million dollars.

predicated upon the sexual abuse, the sexual assault committed by my now current president, back in the 1990s, upholding that jury award, finding that that's the amount of money that she is entitled to, not only for reparation, but also to punish him for doing just that.

$65 million of that $83 million amount is attributable to punitive damages after the

Jury, not the court, the jury.

A jury appears, found President Trump, based upon this defamation, based upon his physical conduct, that he acted with malice in doing all this.

That happens just this past week.

It's a defamation case.

It is a limit on the First Amendment and is significant to note it now because we are going to go.

We are going to go into the coming segments talking more about the First Amendment.

This is one of the restrictions on it, is a defamation action.

You can't say something about someone that you know is wrong, that is wrong.

Do it with intent and purpose and get away with it in America.

That is also a part of our understanding.

When we come back, I'm going to tell you a little bit about Google.

I'm going to tell you a little bit about the Seattle Police Department.

I'm going to take some calls and we are also then going to talk.

about what happened this past week at Evergreen High School and Utah Valley University, First Amendment, Second Amendment implications, all that coming up on Amicus, a lot of you.

My name is Jim Santel.

This is Amicus, a law review on the broadcast stations of civic media.

Once again, honored and so very pleased.

You've chosen to spend some portion of your weekend in discussion and engagement with us on these major issues having to do with government, the administration of justice in our nation and beyond.

We have callers.

We value your views, your questions, your comments, your observations.

Let's get to those right now.

Let's begin with Mark, who is calling in from Prairie du Sac.

Mark, your comment.

or

question.

and is that giving immunity to these people, to whatever crimes they commit, I mean, I used to tame somebody and beats on them, and it turns out it's an American citizen.

Oh, it's so too bad, so sad.

We misjudged the situation.

Sorry, we knocked some of your teeth out.

But that's just the price of freedom, and it is disgusting that the Supreme Court is doing this.

I mean, anybody could be detained at this point in time.

I mean, a Supreme Court justice

It could be maintained that an officer could say, I heard him talking to somebody.

I thought the guy was a Russian agent, so I arrested him.

And it is just based on just judgment alone.

I mean that the whole principle is supposed to be probable cause.

reasonable suspicion right on the street probable cause to to again issue a complaint to indict all those kinds of things and Mark I think you would find great comfort if not Satisfaction the words again of as when you said him or along with Kagan and Brown Jackson She said we should not have to live in a country where the government can seize anyone who looks Latinos big Spanish Appears to work a low wage job.

She once again says as she always does in these

of dissents in which she is so strongly opposed to what the majority has done.

She says, rather than stand idly by while our constitutional freedoms are lost, I dissent.

Exactly.

And Mark, maybe you're one of those people who should write a letter to Judge Frimpong and tell her, thank you for standing up to the standards of reasonable suspicion on the streets.

and for ensuring that at least that principle, that concept remains out there as a discussion goes forward.

The case there, of course, is not completely resolved.

It continues.

The Ninth Circuit, again, is still resolving it as you've implicitly indicated.

Mark, I appreciate very much your observations about the history there.

And I know you also dropped a comment into our chat box about the Bolsonaro situation and bemoaning the fact, once again, that we have not done here.

here and executing the kind of judgment or judge justice and resolving the case to judgment that the Brazilians have done in their nation.

Mark, appreciate your participation in our discussion this weekend on Amicus, a lot of you.

A couple more, a couple more rule of law snapshots briefly to bring you up to date.

These are the kinds of things that are significant in our world.

They do affect our world in two different areas.

Once again, I've spoken in the past about the fact that the United States Department of Justice

justice, at least it used to on a regular basis would approach police forces around the country with consent decrees, sometimes with litigation, all kinds of mechanisms for ensuring that they are also, as Mark just said, abiding by the basic standards for law enforcement in America.

Here's a good news item in the midst of other troubling news.

The Seattle Police Department is now concluding 13, 13 years of oversight by the US Department of Justice.

It's ending a

monitoring period after allegations of excessive force, racial bias in the Seattle police department, a federal judge, his name is James Robart, R-O-B-A-R-T, said on Wednesday that the city has complied with its obligations.

He lifts the consent decree and the adoption of some use of force policies.

body cameras, changing protocols for holding officers accountable, reviewing its crowd management statistics and tactics, all those kinds of things.

All of that, all of that good news.

And the consent decree now dissolved having produced the result that it should indeed produce.

Significant also that comes from what?

The U.S.

Department of Justice, the Civil Rights Division, the special litigation section to go down that road that used to do these kinds of things.

Ask this administration the extent to which it's continuing oversight of our police departments and working toward remedies, not punishment, but remedies to the problems that we sometimes see in our police in America.

Here's another case unrelated.

This comes out of the pen of Judge Amit Mehta, M-E-H-T-A.

We've talked about him a lot to ease in the district court in the District of Columbia.

You recall well, he entered that major decision a while back finding that indeed Google constitutes

a monopoly in America with respect to some obvious landmark search.

policies and practices.

And just this past week in a 223 page ruling, he imposes a penalty that's not nearly as dramatic.

He doesn't order that Google be broken up.

He says instead that Google has to share some of his search data with qualified competitors.

And that's what this case was all about.

A monopoly with respect to search data.

And the Justice Department had asked the court to force the company to share even more data.

argued of course that because of that the dominance of Google in this particular area was overwhelming.

He put some restrictions as well on Google to ensure that a search engine gets prime placement in web browsers and on smartphones.

And so restrictions on that capacity, which also address the kinds of things that he found earlier in his monopoly ruling, but he stopped short once again of banning those payments entirely and did not grant the

governments requested Google be forced to sell Chrome, which all of us know the government said was necessary to remedy the company's power as a search monopoly.

The judge said notwithstanding this power, courts must approach the task of crafting remedies with a healthy dose of humility.

This court has done so.

That's Judge Amit Mehta just this past week, and now bringing to a conclusion that major, major monopoly case against Google.

When we come back.

The somber discussion continues in America when we talk about the tragedies of gun violence.

We talk also about the wonderful permissions, but also the limits of First Amendment discussion and debate in America.

When Amicus Allarview continues.

This is Amicus Allarview.

My name is Jim Santel.

We're going to be spending the next two segments of our weekend broadcast.

talking about the tragic events once again in American history of Justice past week, the tragic catastrophic event at Utah Valley University, the no less catastrophic event at the Evergreen High School and other catastrophic events around the country on a regular basis involving firearms and the taking of lives.

I'm gonna begin, however, in talking about the First Amendment and freedom of expression.

Going back to some of the fundamental things we've talked about that the Supreme Court has told us about over time, and hopefully providing some perspective as we sometimes do here on Amicus, a law review, some law school instruction, some civics instruction about what the dimensions of our constitutional rights are, freedom of expression.

capacity and constitutional authority to carry and use weapons.

First Amendment and Second Amendment issues now looming large here on our broadcast.

The First Amendment to the Constitution of the United States of America says this, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise there.

We've talked a lot about that and the Supreme Court again continues to focus a lot of our attention on religious issues, establishment clause, free exercise.

clause or abridging the freedom of speech and there it is or of the press or of the right of people peaceably to assemble or to petition the government for redress of grievances that's the first amendment to the Constitution James Madison Bill of Rights ratified effective December 15th 1791 the second amendment to the Constitution a well-regulated militia being necessary to the security of a free state

comma, the right of the people to keep and bear arms shall not be infringed.

First amendment, second amendment, the Constitution of the United States of America.

Let's provide some insight and perspective about what those means, what those those

amendments to the Constitution mean, what dimensions they have, what limits they have, and I will begin by indicating, as I often do, that there is no right in America, no right in our nation, no right in the Constitution that is unconditional.

And so when you hear someone say, I have rights, the answer is absolutely you do.

And they are established not just for citizens, but for anybody who's here, residents, they apply across the board.

At the same time, there are restrictions and conditions and limitations

and all kinds of things that government can and must do permissively, constitutionally, legally, lawfully, even inside those great commissions of power among people.

Let's begin with the First Amendment itself.

Again, this notion of freedom of speech.

it is a very, very broad concept.

And without going into the legal issues that you get in law school and maybe even in your own law classes that you may take outside of law school, you know the fundamentals here that the First Amendment of the Constitution has been

interpreted appropriately to say that what this means is that we will let you, we will let people in America as one of our major political candidates said a number of years ago, we'll let you say stupid things.

We'll let you say offensive things.

We'll let you say things that are, that many people would find offensive.

We'll let you say intelligent things.

We'll let you say things that are moving our, our discussion forward.

Offensive things.

Even things that people may recoil at in horror.

The First Amendment, the First Amendment is broad.

And it's the reason why we'll permit you to engage in name calling, which yes, our president and others do.

That is protected by the First Amendment.

We give you an incredibly large breath.

to do those kinds of things, to say positive things, encouraging things, things that promote our national discussion in a way that is productive, and yes, also to say things that may not be productive, and to which you may take great objection, and we let you also assemble in places that may in fact seem offensive.

It's the reason why we let the KKK

demonstrate in Skokie, Illinois with a large Jewish population.

It's the reason why we let certain churches demonstrate in opposition when there are memorial services for members of our LGBTQ community.

It is offensive.

to many of us if should be to all of us.

But we let that happen because that is the breath and the scope of the First Amendment and we embrace that even in the wake obviously of the violence especially at Utah Valley University involving Charlie Kirk just this past week.

We may not agree with the things he and others say but we embrace as we all do in these post

catastrophic event assessments, we embrace the capacity and the right to say those things offensive, supportive, objectionable, favorable.

All of that is a part of the First Amendment.

It is not, however, in the same breath.

It is not, however, without its limitations.

Name the right in America.

Name the constitutional right.

Identify the article of the Constitution in the Bill of Rights in any aspect of our Constitution, and you can identify as well the restriction on it.

What are the restrictions?

With respect to the First Amendment, that is this broad breath for both people and also, yes, the media.

New York Times versus Sullivan, a huge amount of authority in the media with respect to public figures to get it wrong from time to time and can only be found liable civilly if there is actual malice.

That too is a part of the way that we reflect upon the First Amendment as being very broad in its dimension.

It has its limits.

And yes, indeed, the government, the Congress as the authors of the First Amendment indicated, by the way, Congress interpreted to mean government generally at all

levels ever since 1791.

The government can indeed impose what?

Time, place, and circumstance, trappings of expressions of the First Amendment, limitations on it.

The government can indeed establish prohibitions and restrictions, conditions on the timing of your expression.

of your beliefs, whatever they may be, that can include things like the time of day.

It can include things like the places.

Yes, indeed, common places like parks and sidewalks, those are generally permissible.

The government can indeed request and require that you get a permit as a way of exercising that right.

Time, place, and circumstances of the ways in which you express those rights can be limited by the government.

Why?

Why all of these restrictions on rights?

It is because we live in a society of people where we care about each other and there are necessary restrictions on the individual liberties that all of us have, including the right to speak one's mind.

Whatever those statements may be, government can indeed limit them as to time, place, and other circumstances because we live in a society and the greater good

is promoted.

by those limitations.

Can there be debates about those?

Absolutely.

That's why we go to court all the time.

That's why you may petition your local schools and your local city ordinances as they are enforced by municipal entities and yes, even county officials and state officials and certainly federal officials.

We do that all the time.

We have disagreements about the ways in which those restrictions can be applied and that too is a part of the system.

There's another restriction, there's another understanding that goes along with that.

And that while the government can impose those kinds of time, place, circumstances, restrictions, that among other things, for example, do not give you the right to come onto my personal private property at two o'clock in the morning with an assembly of 20 people, with a large amplification system and play music very loudly, that is

probably not permissible, almost certainly is not.

Why?

You may be able to do that in other circumstances, maybe not on private property, but other circumstances.

all of that happening to do with conditions on the expression of your free speech.

There is one that also is significant in this area, and that is that government cannot, even though it can restrict, it can restrict those kinds of things based upon the ways in which the communication is conveyed, it can't restrict it based upon content.

I cannot say if I am a municipal authority, if I'm a governmental authority, that everything is right.

about your timing and your place and the other trappings of your expression.

But I don't like the content of what you're saying.

Whatever government does with respect to restrictions, they've got to be content neutral.

That's the catchphrase.

That's what the Supreme Court has said that government cannot do.

They cannot say that because we do not like what you're saying on any issues and you can fill in the blank.

Whatever it is that divides us as a nation, that brings us together as a nation, many controversial issues out there, you have a right to espouse those as long as the government does not restrict them based upon content neutrality.

Other things, yes indeed.

And then there is another one, another one that we have seen in recent times.

And that is a restriction that goes beyond just simple statements and even advocacy about positions that may be positive and negative, that may be attractive and may be completely offensive.

There is another limitation on all of that and that is incitement to violence.

If in my expression of hatred, if in my name calling, if in the other things that I do that are obstructionist and are offensive, and I was somehow contrary to who we believe we are as Americans, even permitting that, if I take the next step and I advocate that certain people be killed, injured, that property be destroyed, that destructive forces be undertaken,

All of that, all of that is beyond the scope, beyond the pale, beyond the protection of the First Amendment.

You do not have a right.

It is a limitation on the right and the First Amendment, freedom of speech, freedom of advocacy, freedom of assembly.

You do not have the right to advocate for violence.

That you cannot do.

And indeed, if you do that, you may find yourself running afoul of federal law.

and state law, criminal law indeed, beyond just ordinance violations.

You may also find yourself in violation of, as E. Gene Carroll has shown us as we talked just moments ago, if in fact you defame someone, that may not be violent.

It may be verbally, linguistically violent.

If you say something about someone in America and it is not true,

And you know that it's not true.

You do it with malice and with purpose.

And you say that out loud to the damage, to the harm of that person.

You have just committed what Eugene Carroll has taught us in America, which is defamation.

And our president recently has had the defamation judgment against him affirmed by the federal appeals court, $83 million as we reported just recently.

There are limitations.

on the First Amendment right to free speech.

Defamation is one of them.

That's a civil proceeding.

And incitement, inducement, encouragement to violence, to violence, that is another.

I know that many of you are probably thinking, well gee, what about January 6th?

And obviously, the current president was ultimately indicted for conduct related to that event on that day before and after it as well.

You know what happened in that case brought by the special counsel, Jack Smith.

He did not, interestingly, he did not charge that case based upon violations of the First Amendment.

He charged it based upon other things that allegedly Donald Trump did in and about that time that caused the events.

on Capitol Hill of that day.

It was not brought intentionally as a First Amendment case.

And he chose to do that specifically because, frankly,

He is a very good and very thoughtful, very professional, and very wise litigant when it comes to representing your interests.

The First Amendment has all kinds of limitations on it, and those are them.

When we come back, we'll talk about the Second Amendment as also animating our discussion this day, this week, this time in the United States of America here on Amicus.

A lot of you.

This is Amica Salaro here.

My name is Jim Santel, spending some time in instruction in law school civics insight into the events of this past week having to do with free speech and a lot of the discussion, the debate.

going on in the wake of the assassination, the horrific catastrophic assassination of Charlie Kirk at Utah Valley University, the injuring of students at Evergreen High School, all of that on the same day.

We know as well that there are mass shootings more than 300 in our nation, even up to this point.

We know about not only the impact of firearms upon our nation, but also on individuals.

Beyond our First Amendment discussion of the previous segment, again, that all about the fact that we do in this nation embrace free speech, even to protect unpopular and hurtful ideas, to allow open discussion and participation in democracy.

There are limitations on that, and those limitations incitement to violence, defamation,

Yes, other things like obscenity and fraud and child pornography and true threats and things called fighting words.

There are limitations on First Amendment rights, which should also animate our discussions and our debates in the wake of the catastrophic events of this past week.

Also should animate our discussion and our debates about firearms in America.

We know again the Second Amendment has been interpreted a mere 17 years ago since 2008 to include to include the absolute Right Conditioned however Upon limitations to possess firearms in America those of you who are 18 years or older have lived in a time in America when the Second Amendment was not interpreted was not understood

to vest in you a personal liberty, a personal constitutional right to possess firearms.

That happened in 2008 in a case called Heller versus DC.

We've talked a lot about it on this broadcast.

Antonin Scalia found for the first time in our nation's history that the Second Amendment can and should be interpreted to include the right, the constitutional right to possess weapons in particular a handgun in the home for the purpose of self-defense.

And just a few years ago, 2023, in a case called Bruin,

written this time by Clarence Thomas embracing that same concept and expanding it to places beyond the home.

Between Heller and Bruin, they do in fact establish rights to possess and own and use firearms in America.

Absolutely.

But like the First Amendment, it is restricted.

And here's the point.

It is not without condition.

If someone says to you, I have an absolute Second Amendment right to do whatever I want to do with guns, just like someone who says I have an absolute right to say whatever I want, they are wrong about that.

The Second Amendment, like the First Amendment, is conditioned.

And believe it or not, Antonin Scalia himself

Establish what those conditions are.

Take a look at Heller.

Take a look at what the Supreme Court said 17 years ago, said nothing about our opinion that establishes this right prevents government, the Congress and government, any municipal authority, any county authority, any state authority, any federal authority for imposing restrictions on it.

And what are those restrictions?

The circumstances of manufacture and distribution and sale and packaging and transfer and use and timing.

All those kinds of things can in fact legally constitutionally be imposed by government.

No right, no right without its conditions.

And who said that?

Antonin Scalia said that, and yes indeed in Bruin, just a few years ago, 2023, that basic concept that the Second Amendment right to possess and use weapons in America is restricted by certain conditions.

and terms and conditions reaffirmed by the Bruin court, especially John Roberts and Brett Kavanaugh in their concurrences in Bruin, affirm just that.

You can indeed legally constitutionally impose limitations on the rights to possess, to use, to transfer, to sell weapons in America.

And that's why the legislation that, for example, imposes a

cessation of the gun show loophole that requires universal background checks that bans assault weapons which we had in this nation for 10 years a number of decades ago that provides for safe gun storage that establishes for example an extreme rick's protection order that says if you see someone in your family

who because of a mental illness or other concern may be a threat to themselves or some other people, you can go into court and have a judge temporarily upon a finding of actual presentations, make a determination that that person should no longer have a firearm for a limited purpose.

All of those kinds of things are legal and they are constitutional and they are being done in states across the union.

And we know in those states, including our own United States, that had an assault weapons ban for many years, it works.

All those things work.

And they are proper and they can be done in America because they were within the legitimate restrictions of the Second Amendment.

Restrictions on the First Amendment, restrictions on the Second Amendment, once again, why?

Because we live in America with 343 million people.

We do not live alone.

We live in a place and a time that government can indeed impose time, place, and manner restrictions on the freedom of speech.

And yes, there are limitations on the things that you can say in the areas of incitement.

and defamation and obscenity and child pornography and others.

And yes, there are limitations on your capacity to use and carry and transfer and sell firearms in America as well.

And Congress and legislatures around the country can impose those legally and lawfully.

The courts find that all the time.

And so as we think about the horrific things that have happened once again in America, we think also that's four and 16 days from now, from today, that we go to

polls on November 3rd of 2026 and we vote for our federal representatives who have the capacity, have the capacity when it comes to the Second Amendment to impose those kinds of rational reasonable restrictions that will keep us safe and secure.

Not just in 2026 but

going forward.

That is what American democracy is all about.

That is what a republic is all about.

Representative democracy that is brought together to encourage the safety and security and well-being of the United States of America.

That was the vision of our founding fathers.

I encourage us all to think about all of that as we continue the debates in America that will certainly go on.

And I encourage you to come back again next week as we'll continue our discussion of the rule of law.

And government and justice in America here on Amicus, a lot of you.

Have a good

weekend, everybody.

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