L.O.G. 119 Words Matter

Hello and welcome to the video version of The Human Behavior Podcast. I'm Brian Marren, the host and creator of the show. As always, I will be joined by human behavior expert, Mr. Greg Williams, who the show is affectionately named after. On the show, we discuss different topics through the lenses of what we call human behavior pattern recognition analysis. If you'd like to find out more about what that is, please check the links in the episode details and go to our website to learn more. Please don't forget to follow us on social media; the links are also in the episode details. And hit the like and subscribe button to help support our work. Thanks for tuning in, and we hope you enjoy the show.

All right, Greg, we are on, we are live again. So, those of you listening, you can always follow me, and when we pop up on Facebook, you can interact with us. So today, we'll jump right into it, Greg. We are talking about the importance of words in one sense, but also giving, excuse me, a little bit of, I guess, legal precedent and reasons why we talk about things in the manner in which we talk about them, if that makes sense.

So, we're going to jump in and go to a case from Pennsylvania: a 14-year-old by the name of Brandei Levy. She gets cut as a freshman; she's trying to go out to be a cheerleader on the varsity squad at her high school, and she gets cut and doesn't make the team. So, what she did is kind of, I guess, the modern version of what probably most kids do when those types of things happen: she got a little angry about it and decided to go on social media.

And so, she said she got on there; she made a post on Snapchat, said, "You know, fuck school, fuck cheer, fuck softball, fuck everything." Okay? So, she kind of spouted off and got upset and put that all over social media. So, the consequences, sort of, of that, or the repercussions, the second and third order effects were that the school jumped in and basically tried to say, "Hey, you can't do that. That's, you know, it violates that goes against our some of our rules and regulations regarding things like bullying and things you can and cannot say."

And then that made its way up through some of the court systems because they sued, saying it's a violation of her First Amendment rights. And that's still kind of going on, but they basically kind of hit through the couple federal courts, said no. They basically said, "No, she can say that. You can't tell her no. She wasn't on school grounds. It wasn't directed." So, we're going to get into why that occurs.

But the reason, one of the reasons why it kind of became an issue is because there were a lot of folks who were saying, "Hey, this is bullying," or "If this law is upheld and we cannot censor this type of stuff, or we cannot reprimand her for saying it, you're going to let bullies get away with being bullies and doing bad things, and then they're going to be some of what they're saying, which is hurtful and has a detrimental effect to the people in the community, that's suddenly going to be protected by their First Amendment rights."

So, this is important to go to. Everyone says, "Read the Constitution," or "Know your rights." Well, I would say, more importantly, "Know your case law," because that's where these things get played out, right? So, we always talk about different cases when we're talking about different subjects because there's a legal, what's called, precedent, right? There's legal precedent saying, "Hey, what's the precedent for this situation?"

And in general, a general way of looking at it, especially with the Supreme Court, is to say, "Let the previous decisions stand," meaning what has come before us, what has developed with our laws, with our courts, in the judicial system, is powerful, and it was put into effect for a reason. Meaning, the people at that time made the most logical answer they could at that time. Now, as things change over time, maybe something gets challenged, and then the court looks at it later on and says, "Hey, you know what? Under this circumstance, you're right. We need to change that," or "That is unconstitutional because society has changed, laws have changed, policies and procedures have changed. We've learned and grown as a society and as a nation to go, 'Hey, you know what? Actually, that made sense in, you know, 1875, but in 2020, it actually doesn't.'" So, but that that has, there's a process, as resistant to that, that gets played out, especially in the courts. So, we always throw to, you know, "What's legal precedent? What cases have come before us?" So, we'll kind of just frame it there, Greg. We'll start, and I know you kind of, there was another reason why you kind of brought this to my attention, too.

Well, first of all, everything that you said was correct. I want to make sure that we don't couch this in something else. The F-word was prominent in the Snapchat. It's the true full that starts with an F, ends with... yeah, yeah, we could just say it, but it was just... yeah, I just don't like that when it's out of context like that. And little did Brandei Levy know that democracy works, and our country is so powerful because the Supreme Court of the United States (SCOTUS) is seeing this case, and it started because a cheerleader got bounced from the Golden Bears team.

And the idea is when somebody sounds off in our nation, people listen, and it will sooner or later become a Supreme Court decision, or at least a lower court decision, and people will talk about it. And the reason, Brian, the reason this is such a tough nut to crack is because SCOTUS, the Supreme Court of the United States, has already said students can speak or write articles or assemble to form groups or petition school officials on certain issues. And basically, that's a sort of a political funnel. But it doesn't end there because the Supreme Court said that students don't shed their constitutional rights to freedom of speech and freedom of expression at the schoolhouse gates. That's important, Brian, because you and I both know that there's a distinction between public and private, right?

Right.

So, in a public school, the teachers, the administrators, everybody that works for the school, including the janitor, is an agent of the U.S. government. That's the way it works.

And when I say an agent, I don't mean a secret agent. I mean they're acting in concert with, they're part of the state. So, they're either the county or state, whatever it is. Doesn't sound like they're a federal agent in that sense, but yes, they do.

But does that work? Yeah. Because they work for the government, it's not a private institution. There's public funding for that, and that's what's majority of what pays for it. So, they fall under different rules. In a private school, they get to make up certain things, or can kick people out if they want, under different.

So, if a school would have come, Brian, and said, "Here's our rulebook, and she violated ethical code or the student code or something by saying this," nobody would have said a word. But because it's a public school, it's protected speech.

Now, real briefly, very briefly, because I loved in your preamble where you were touching on stuff, how does somebody get pissed over it? Well, this is how I get pissed. Shawn Clemens sends me a string of articles that are all inflammatory. He sends them in an order of finally getting me to go, "Damn it." And then I send you the the kernel's there. So, I'm reading the Gunnison Country Times, Brian. I just returned from an in-person training course, and I'm reading the Gunnison Country Times. It's published once a week on Thursday. Here to catch up on it. And in the editorial, some guy spouts off in the editorial, says, "Hey, we have to change the First Amendment rights of free speech. We have to change the Constitution because, you know, the other political party," because he was for one political party, "is using it to cast aspersions on candidates and change the way we vote."

And do exactly...

So, if I was going to write an editorial back, it was exactly that. It would say, "Shut up and sit down." And then the third one would be an admonition to read your Constitution. So, Brian, I would say if it's okay with you, I would say that if people are listening to us or watching us live or whatever they're doing, get out your yellow pad because you and I are going to have a bit of a romp, and we're going to talk why words matter. How's that?

Yeah, and that's good, especially, I think it's important to understand this, especially in the age of social media and how fast words spread, is that they do have meaning, they do matter, and there is legal precedent that covers some of the stuff. So, there just there are issues. Now, what people say on certain social media platforms and what they're calling that is, are you a publisher? Are you an open source place? Is this considered, does this fall under, does Twitter fall under the idea of a town hall? You know what I mean? Because there's arguments for both sides of this and how it works. So, understanding this is part of the reason why we talk about and how words matter. And when sometimes people get confused when they see things play out and go, "You can't do that," or "You can't say that," or they say, "Yeah, yeah, yeah, you can." They're taking it out of the context.

And you brought up precedent, yeah. And you brought up the Constitution, those are our left and right lateral limits, Brian. And so, listen, if we're going to take a yellow pad, that's the way we do it. You know that I've correctly predicted all U.S. Supreme Court decisions, about the last 15 years since I've known you.

You're, I think you're at a hundred percent for what? When we, and folks listening, what we mean is like, we'll talk about a case where the either the Supreme Court already heard it and they're about to issue their opinion on something and Greg will say, "Look, this is what it falls under, this is what I think that they're going to come down with, this is what I think the decision will be." And I think, as far as I can remember, you've been, you must be, because I would remember if you were wrong because I'd hold you to it and say...

You would too, and it's right to do that, Brian. It's absolutely right to do that. So, yeah, so let's let's do this. Okay, I will I will demonstrate how I do that. Some people predict horse races or boxing matches. Yeah, I predict Supreme Court decisions based on this rule. Now, we just got to figure out how to how to monetize that, right?

Yeah, exactly.

So, I would say write down these first three: Schenck. And that's Schenck versus the United States. It's easy to find, even if you spell it wrong. Gitlow. And Gitlow versus New York. And the final one is Debs, and Debs is another one versus the United States. What's important about these three is it demonstrates how the U.S. Supreme Court thought back in the 1910, 1920, coming in and out of World War I and beginning World War II, and what the U.S. Supreme Court said, there's a clear distinction between how we think when we're at war as a nation and what things should be punished.

So, Schenck brings us what's called clear and present danger, which means that if your words are going to create a clear and present danger of a significant evil that Congress should prevent it before it happens. So, with Schenck, Schenck was making a mistake out there, passing out pamphlets that were saying not to be in support of something, and the overreach was that, listen, because we're at war, that's dangerous speech. Then we come in...

Absolutely. Yeah. And just real quick, because that is the caveat to it, right? This is this is a given the context, given the circumstances of the time historically, of where their nation's at, this poses a clear and present danger. And so, maybe a year or two years before that, it didn't, right? I mean, meaning...

Yeah, you must always compare against that precedent, understanding. And no, no, yes, I want to make sure that you said it correctly, but I don't want somebody to think we have to be at war to talk about Schenck. The idea is that it established a threshold, the threshold being clear and present danger. And so, when these cases get seen, you know, the attorney will reference these cases as precedent, as example to argue either for or against whatever their opinion is of, "Hey, this is why we're going to trial on this, this is why we're the prosecutor, this is what our defense is, and this is why it is because look at all this precedent." And they have to weigh that out, right? So, you're exactly right.

And so, when we get to Gitlow, and do your homework, I'm not going to spend a lot of time on these cases because I'm going to assume you're going to do your homework, folks. Gitlow, this was a very, very small-scale operation, Gitlow passing out flyers. Again, do you get what I'm trying to say? But the government will reach down and squash this one because it says, "Hey, listen, we're going to punish speech that threatens the basic existence of our democratic rule of law because it has national security implications." So, don't think that just because you're in your basement publishing this flyer that it doesn't matter to the rest of the nation. And Brian, this one, Gitlow, speaks directly to our caper here with the foul-mouthed, what I like to call the bar of soap in the mouth decision, because it's a small-scale one, but it has huge implications. So, let's go against Debs.

And real quick, just for understanding, the Gitlow one, I mean, that's what you said, it threatens existence because of national security implications. So, this is again under different, what was called then, the Criminal Anarchy Law, right? And...

Yeah, because he was advocating the overthrow of the government because we don't want to fight in this war. And he's saying that, "Hey, listen, these things are going..." And he defended himself by saying, "Wait a minute, the Supreme Court has already said uttering, not publishing." And he said both work. The U.S. precedent, right? And he because he just said, "Hey, that's not action, that's just words," right? And they said, "Well, hang on, hang on."

Yeah, you may be doing, but your words are trying to lead to this. There's an intent.

They're undermining, they're thinning the ice, Brian. That's specifically what they're saying. Even small-scale, it's going to chip away at the fact.

And again, to go back to why we always talk about intent, the court established, "No, you had intent here. This wasn't just a conversation or words or a paper you wrote. You were trying to do something with this," and that which is, which is different.

Even if you don't do that, and he even testified that he had the intent.

Yeah, right, right, right. Exactly. So, okay, I'm sorry.

No, no, no, that's perfect. I love the way you're doing that. So, why do I put Debs in that pile? Because they're all that pre-World War I, World War I, World War II, but they're as important today as any of them. And how do they answer Debs, which is basically the same thing? Allegedly attempting to cause insubordination and refusal to work in the U.S. military by passing out of pamphlets and having speeches and stuff. And guess what they did for Debs? They cited Schenck. They said the decisions in Schenck are going to stand. And then the idea behind that is that if you get a decision and a ruling and the U.S. Supreme Court says it's in principle virtually identical to a previous ruling, Brian, that's where they're going to go. So, today, if you think that the U.S. Supreme Court is going to create an amendment based on your case, very unlikely.

Yeah, yeah. You think that they're going to take a look at previous cases. So, when we say "do your homework," we absolutely mean it.

And so, now let's go into a school. And I would say in this next batch, don't... So, Brian, we have a batch of three that teach us how the Supreme Court thinks and all and concerning words and concerning how you use those words and what the intent is behind them, right? Because I think that's what a lot of those came down to was, "Hang on, you're not just, you're not just publishing an op-ed that's anti-war, against the war effort. No, no, you're actually inciting action here." And I think that's the important distinction. Okay.

No, no, no, no. So, so and and those takeaways should be highlighted on your yellow pad. So, let's talk Barnette. And we're going to talk Barnette, West Virginia versus Barnette. And we're going to talk about what's called Chaplinsky, Chaplinsky versus New Hampshire. And both of these people just happen to be Jehovah's Witnesses. And somebody in the audience is going to go, "Oh, you're going after Witnesses." No, what I did is I grouped them by content. So, the first three were wartime, around the same time, and established clear boundaries. These two have to do with us as a nation, Brian. So, when Barnette comes in, Barnette refuses to salute the flag, flag during in in school, right? And said, "Hey, for religious reasons, I'm not going to salute the flag."

Exactly. And there's many flag cases. Yeah. There's like burning a flag, flag waving it at a private trailer park, a flag with the... So, here how can that be a violation of your First Amendment rights? Look, you have the absolute right of free speech, which also means you have the free exercise of religion, which right in there. Okay. So, what they're saying is that you can on the grounds of conscience not salute the flag, and that pisses people off, Brian, but it's the law. And so, I says you have the protection not to salute.

Yeah, those kind of religious grounds. Yeah. So, he said, "Look, this is this violates my religious beliefs. I'm not going to salute the flag in this situation." And then the school punished him and said, "No, you're supposed to do this," you know, and then they sued. And then the Supreme Court said, "No, he doesn't have to do that. They don't have to submit the flag," you know, that this is that would be violating, forcing them to do that or punishing them for not would be a violation of their First First Amendment rights.

Which you just nailed, which is so important, is, listen, if you don't have to choose a religion, then if you do choose a religion, you don't have to prescribe to everybody's rules and force a citizen to confess. Their exact wording was, "confess by word or act their faith in that choice." So, in other words, you can't make people say the prayer at the beginning of the prayer breakfast. Do you know what I'm trying to say? Because it's my right not to say. And as much as that pisses you off to create a true democracy, Brian, we have to have that.

And Chaplinsky, Chaplinsky was a little bit different because, but again, it speaks directly to what we're talking about today. Chaplinsky was walking around and going, "If you're not of my religion, you can kiss my ass." And he also came out there and said, "You know, you're a jerk, and your religion blows, and you're a racketeer." Because bringing people, you're a fan. Everybody.

Everybody went up in arms and said, "Whoa, whoa, whoa, whoa."

So, now the U.S. Supreme Court reaches in and says, "If you're going to push people to do something, you have to understand that we protect things that are slanderous and obscene because there's other laws that cover that. But when you incite somebody to an imminently violent act, we go back to clear and present danger and Schenck." That you just, Chaplinsky created fighting words. And if your fighting words incite an immediate breach of the peace where somebody wants to come across and start fighting, guess what? They're not protected speech. And there is no hate speech provision. So, the closest you're going to get to hate speech, you better quote Chaplinsky because the Supreme Court ruled on Chaplinsky that, listen, you have the right to say all these things, but when it incites that immediate breach of peace, then at that specific second, it's wrong. Okay?

And this is a really, this is a really good one. Now, that that is going to, I think, is going to get brought up. All of these will get brought up. This one is specifically coming soon because what's happening as a way to kind of counter some of the issues of these kind of unlawful protests and people destroying property, these a lot of towns or states or counties are trying to pass laws saying, "If you threaten a police like there's different provisions for for free speech when it comes to police officers and what you say to them." They're trying to make a crime to say certain things to a police officer. And I'm going, "Whoa, you're getting into kind of a slippery area right there." Because then they're right. And if you prosecute someone, they're going to come up and they're going to say all of these, like, "Look, it didn't fall under any of these legal precedents. I can say those words." So, so it, it's going to be a challenge. It's a challenge, right? It goes back to intent. What did you mean by them? Because you can insult someone all day long, right? I mean, you can say certain words or certain things, you know, so long as you're not, you know, impeding on their rights, you're not again, inciting some sort of clear sort of violence. There's no major, or you're not like, even with us on this podcast, if we were telling our listeners to go out and do something to someone in physical harm, that's not protected under free speech. You get what I'm saying? So, we can't say that. And then when someone goes out and do something, "Well, we didn't, we didn't tell them," you know, "we didn't do that, we were just talking." And it's these words matter because words are portrayed or how they're taken. Is your three, yeah, I think expertly so. I don't know what the hell just happened to my computer once again, but we are, it's it somehow stayed live with you on Facebook and kept going, but it did stop recording at that moment. So, sorry for our Facebook listeners. But go back to, can you just retell that part very briefly?

He says, "Hey, look, Mom, or kids, go to Mom's purse and send me a dollar bill." Okay? That's protected speech. You can't do that because it incited those little kids to actually do that. The very next case, look it up on your own, it's in California. Guy writes, "Fuck draft" on his shirt, and goes into the draft house, you know, the legal place where you have to register to be drafted. And they arrest him, and the Supreme Court says, "You can't violate his constitutional rights. He has the right to express and say those words even if it offends the general conscience of the public because it's how he feels."

But later, in O'Brien, and we go to the Boston courthouse caper, he stands on the steps of the Boston court and rips up his draft card. Now, here's where the Supreme Court thinks differently. They said the one was my view to the world, I say "Fuck draft." The other was you violating a government decision that these draft cards are a formal legal document, and by ripping them up, you violated the law. That that's an important distinction, Brian, because one was an intent. Right? It's something harmful, and one was, "Hey, listen, what the little girl said, 'Fuck this school,'" you know what I'm saying? "Fuck my my cheerleading program," and that gets us all the way to the final two, I think we need to talk about, two or three, I think, Tinker and Morse.

Tinker versus Des Moines is a very simple one. A bunch of students disagreed with the Vietnam War, so they said, "We are going to protest by wearing these black armbands to school." Look it up, great case. SCOTUS came back and said, "Look, there's a distinction between communication through words, words matter, and communication through deeds, actions matter." And they said, "Here's a clear defining statement: if they walk in and they're just wearing those armbands and they all know within that little group that that's their protest, that's one thing. They've got the absolute right to do it."

Yeah, they did that, and now started blocking exits and turning over chairs and lighting, you know, lighting things on fire.

Brian, Tinker versus Des Moines said that's a very different thing. Words versus actions. And I like to tie that one to Morse, which I like to call the "Bong Hits for Jesus" caper, just like this one is now called the "Soap in the Mouth" caper. And "Bong Hits for Jesus," just a few years ago, a school-supervised event at a public school again, the distinction, and the kids across the street made a big banner that said, "Bong Hits for Jesus." They said, "Most people won't know what 'bong hits' are." Everybody knew what it was. Principal comes over, and they get suspended. U.S. Supreme Court says, "Listen, the reason we'll side with you on this one is not because of the free speech, because it was speech advocating kids to use drugs in school." So, the reason I picked this one for you, Brian, is look how close this is to this one. You said that people said, "Well, bullying." They're worried that if we side with this little girl, that she can say that, that it's going to weaken the bullying statutes at the school. "Bong Hits for Jesus" would side with that group of people, saying that if it advocates drug use, but she didn't say, "Fuck this guy," "police baton," "after school," and "lock out the doors." She just was exasperated and used too many F-words.

Yeah, so so once again, back to the title, "Words Matter." Why? Words matter because meaning, in this specific one, like you said, there they are advocating for the use of illegal, at the time, illegal drugs and then on school grounds. So, that's completely different what they're doing, even if it was a joke. That's what I'm saying. So, likely to, likely to take it seriously. Here's an example where, although they did, that was not their intent. Yeah, right. I mean, we always go back to intent. We go, "Well, that's great. You might not have intended this, you might not have meant to do this wrong, but this is what you did under the law." So, your ignorance of that doesn't play into account. Like, "I'm sorry, this is what the law is." And that's a good important distinction because, you know, we especially now, we always talk about intent, and what's what's their their intent behind it? Well, this one, their intent was just to maybe just be, you know, funny or make a joke or do this. Well, it's I get that, but sometimes that that's still illegal. Right?

Right. And just real quick, too, on the Tinker one, you brought up, I do want to highlight one thing where, you know, because you put in there that, you know, "School officials must be able to prove that the conduct in question would materially and substantially interfere with the operation of the school." So, but that it's just an important in there. In all of these cases, in those opinions, they will put something in like that. Like, right, they'll write the opinion of the court, you know, and there's always like a dissenting opinion usually if there is a descent, and they'll say, "Hey, this is why, this is what it what it falls under, and when it when it reaches this threshold, and that consideration or in that case, materially and substantially interfere with the operation." That's the precedent going forward that someone can go, "Well, did this action, you know, substantially interfere with the operation of the school?" You know what I'm saying? So, to bring it to the case that we're going to discuss here, that we what we are framing this whole conversation around, is that, "Well, it didn't definitely didn't meet that criteria." You get what I'm saying? So, so there's certain criteria it has to meet. And that's one of those do one of those in there. And then same thing with your your your bong hits for Jesus.

Yeah. Yeah. So, in Morse, what do they say? And Morse, they say, "Look, we say public school students do have some rights. They also have rights to political speech and expression, but that doesn't extend to promoting drug messages." So, it comes down very clear, and that's that's right on Brandenburg versus Ohio because what they say that may undermine the school's important mission to discourage drug use. So, boom, right there, they're they're interfering with that operation. They're interfering with...

Words matter. And actions, actions matter, and the intent to deliberately do those actions, meaning it's inevitable that they're going to occur, is what the court decides on. You're exactly right, Brian. So, so you're already right now inside the head of the Supreme Court. You're thinking like they do. And I would say take Morse versus Frederick and balance it on Brandenburg, old one from the '60s. Brandenburg is a KKK leader. He's at a Klan rally, and he says all kind of bad things. Yeah. But the thing is that that Ohio had a very broad statute that was called the Syndicalism Law. And what they said is, "Hey, listen, you can't say these things. You can't associate with a gang, and you can't assemble with the gang, and you can't say we want industrial reform or political reform." And now we get that SCOTUS comes along and says forever, from Brandenburg, and we have a two-point standard. One, speech can be prohibited: is it directed at imminent lawless action, it's unlikely to incite or produce that? And the two is that it's likely to incite or produce such action now immediately. So, so here your words are getting people imminent lawless action. They're they're being incited to it. And here they're likely to produce such action based on those words. So, we're taking it from words, we're taking it to action, and that's exactly the type of case that we have in Tinker. It's the type of case that we have in Morse, but I don't see it in Brandei Levy. So, Brian...

Right. And this, I in the Brandenburg, the Ohio one is a good one because like you said, I mean, it can, you know, if it's inciting and producing imminent lawless action, then your speech can be prohibited, right? Or if it's likely to incite or produce such action, your speech can be prohibited because this is where it meets so there's that standard. But it also, understanding where we're talking about free speech laws, so they're the bedrock of our nation. Like what we, our free speech laws separate us from everyone else in the world. They're they're unlike anywhere else, and they're I'm an ardent supporter of our free speech laws and what you should be allowed to say. And it's defined, like, this is this is a huge thing that that is really, really coming to light right now, obviously with the case we're going to discuss, but also just in general, like I said at the beginning, with social media and everything. And it's a when you go down this path, it can be a very slippery slope. And I often see people who who claim to be big supporters of the Constitution, their rights, and then wanting to say, "Oh, that person, you can't say those things," right? "You shouldn't be allowed," right? "I'm going to tell you what you can and can't say." And that crosses both political aisles, right? I see it all the time from the right and the left, and it's kind of like, "Wow, you're you're all being very hypocritical right now."

But this was an important one, too, because it reminded me of, whether it was the '70s or '80s, I can't think. It was like late '70s when the KKK wanted to have a rally in in, you know, in Skokie, Illinois, where a lot of it's a big Jewish community right outside of Chicago. And the actual some people from the Jewish community, as well as the ACLU, because people are trying, basically what happened, everyone's like, "No, we're going to shut this down. We can't allow them to to have this rally here." And the the American Civil Liberties Union (ACLU), as well as people from from the Jewish community, said, "No, you're going to let them have their you're going to let them speak." Like, because they knew, "What did they say?" And I think that was even the NAACP even got involved, said, "No, you let them talk." And and if, "Because if you take away their right to say that, what's next? What's next without with with?"

And this is why legal precedent is so freaking important is because it's always, it's not just about this situation, it's about every situation after that is going to get interpreted through this decision. It's this lens, isn't it?

It it absolutely is. It's that new well, here's now the precedent that we're using to...

Here's our comparison to this event. So, they're so so important that people go, "Look, you know, everyone's always screaming all this Supreme Court decision, that one." And it's kind of almost like, "What does this mean to me?" This means more to you than some resolution or executive order or new tax law. You get what I'm saying? Because this comes down to this is how it gets played out in the streets. These court cases are this is where it happens. And and so it's important to understand the fact that legal precedent is extremely powerful. So, if you go the wrong way, and maybe it's maybe like you think of a just a horrible situation where everyone go, "Yeah, this person, that was that wasn't that was they shouldn't have done that. We need to punish them. We need to, you know, throw them in jail for this, that or the other thing." And they go, "But wait a minute, if that goes through, then then now that that's the new standard, that's the new precedent, the law of the land, they're now going to use that in an area where you may not disagree with, or you may not agree with later on."

Wait a minute.

Yeah, and that's that's the point with these. And that's why I'm such an ardent supporter of anything free speech, you should be allowed to say it's what you're, and I don't even care what it is. It's just, are you inciting violence? Are you attempting to, you know, do something that's illegal or promote something that's illegal? Well, guess what? You can't do that then. It's it's been cleared in here. But but short of that, look, like people should be able to say what they want to say. You know, they they really should. And I think that's an important distinction that that is the distinction.

So, Brian, everybody's saying, "Okay, I've got my yellow pad now. What do I do?" And I say, "Make a funnel, a big hole at the top, little hole at the bottom." And what happens is Schenck brings us clear and present danger. Chaplinsky brings us fighting words and imminent lawless action. Brandenburg says, "Listen, these are pushed down now, not just from state, but to federal law." And then the the the laws like Morse, the "Bong Hits for Jesus," and Tinker, the black armbands, say there's a big definition between words and statements. Your actions define you.

So, now we come to Brandei Levy, and we have to ask ourselves a couple of questions. One, I think that school officials must have the power to prohibit speech that disrupts the school environment. Did hers? No. It was out of school, and it was general and non-specific. It was a foul-mouthed rant that sounded like something that should be on Showtime, but she had the right to say so.

Real quick important distinction, happened outside school. Now, it happened on social media, which is different because now it's amplified, it's louder, and there's more people that are going to hear it, but almost think of that also can be heard at school. Yes. That's that's it permeates the walls of the school. People cannot not hear it once. Right, right. So, so there there is that. And but what you also brought up, remember too, is what she said was not anything specific. There was no general, other than, other than even what she said, like, "I was frustrated, I was upset, I was angry, so I said fuck school, fuck cheer, fuck song, fuck everything." Okay. She didn't say, "Fuck this person," or "I want to give that to you."

And I think that that's important because I don't want to interrupt, but it isn't clear those two clear points right off the distinction. So, now school officials also are allowed to prohibit speech that is going to invade the rights of others. And this is where we get the bullying, where she specifies a specific person and says things about that. And I think the legal argument that they're going to wrangle and decide on is, it's going to center on whether this ruling weakens laws that are already in place against bullying and cyberbullying. Clearly, it does not because it doesn't say, "Act up," it doesn't say, "Go punch Brandei because she got her poor choice Sandy, because Brandei got fired and Sandy did it." It doesn't, so it's not going to, it's not going to border on that.

We can also restrict the student speech if it's lewd, if it's crude, offensive, sexual. Okay, that's where sexting and all those other things come in. They're violations of many other companion laws, Brian. So, my thing, the bottom line is she can say, "fuck everything," because it didn't impede the school functions. It was never an intent for her to upend the way they were doing it and say, "block an exit, block, you know, show up and have a suit." So, not only did she not have intent, it did, in no way, did it affect the out, it didn't affect the operation of the school, the normal functions or operations of the school, but it did violate a school policy. So, therefore, we may be pissed, and we may say, "Yes, it violated school policy, and you're not allowed to say that." But the U.S. Supreme Court comes in over school policy and even state law must acknowledge that, listen, she's got she's right protected, she can say what she wants in this instant. Now, is that going to say that other kids can do it? Listen, it's a case-by-case basis, Brian. If another kid says it and they slip and they say, "Tommy Parker, Johnny, and Angelo," then guess what? They're going to be in the trick bag. Okay? So, so don't think that the outcome of Brandei Levy's case is going to change school policy. School policy is still the law of the land, except what she did outside her mouth should have earned her a soap in the mouth and in a chastising, but her parents didn't control.

And and here's why I like this case. I like it because of for all of this, I guess, call them dissenting opinions that people are putting up, right? They're saying, you know, some what you talked about, "Well, if this goes through and the Supreme Court says, 'No, you could you know says no to the school saying you can't do that, you can't punish her for that, or you can't do this,' you know, fuck that she, which if they rule that this falls under her First Amendment rights and she's within her rights to say that, what they're going is, 'Well, that's now the precedent and that's what bullies are going to say and do, and that's what,' you know, that's what they're saying. That's why a lot of people disagree with this or say, 'No, she should be punished because we can't have this speech.'"

Look, you don't get to say what people can and can't say. You you don't have that right. Like you, I mean, there's unless it's one of these examples we brought up where you said, "No, hey, that violates this order here, or this amendment here, or this is what it where that that's, you know, affects our operation, and therefore now it becomes no longer protected speech." That's what you can because they're worried. And I get it, like we don't want people to be bullying others and saying all this stuff, but like you you, I mean, one, I I disagree with that way of handling a bully situation anyway, but that's a whole different topic. I think that rather than going around telling people, "You can't do this," and "You can't do that," we should just be rather than nerfing the world, you know, we should just be making these kids more resilient. I think that would be a better approach that they can handle these situations on their own. We could train our way out of this now. Yeah. Yeah.

But that's that's that's separate than the then the free speech kind of kind of discussion, I guess, and and how how words matter. And again, they're saying, "Oh, this will affect bullying and and now kids saying all these awful nasty things will be will fall under their First Amendment rights." No, it won't. Now, if they're, yeah, you have to take it each on their own. Each case has to be taken for the context in which it was in which it happened.

If we were in Lower Bratastan, you know, some made-up place. I don't know where that is. No, and I want, I wanted so nobody could, because no, no, it's nowhere. But if this 14-year-old would have said that, she would have never showed up at school because they had stoned her to death. That's what happens. Not in a democracy. In a democracy, what you get is you had some rich person somewhere that took umbrage to the fact that it was a 14-year-old girl dropping the F-word like it was free. Yeah, that's what first insulted people. Okay? Yeah, it insulted somebody's pride. "Oh, I'll show you her creativity." Yeah. Now, if you wanted to change the way this worked, Brian, if you wanted to use the Supreme Court, now that everybody that listened to us knows how they think, what I would have done is I would have said the imminent danger of these words is that they will foment lawless action at that school and have other kids do it. And it's going to take away from our our assemblies, and it's going to take away from our sporting events, and therefore that that big thing that's going to cost us time and money and that she flaunted our rules and it's a public school and there's got to be standards. Now the Supreme Court is going to go, "Let's look at it." But again, they're going to imply, yeah, where the words and where the actions. And she said bad words, and she said them all in a row, but she wasn't specific about them. They weren't tantamount to to causing personal distress, bullying. Okay? And they weren't telling people, listen, "Don't go to class." You know, the black armbands, when we're talking about Tinker, they were saying, "We're protesting a war." They got the right to that political speech. Yeah. So, as much as I hate that we're going to cite 14-year-old Brandei Levy in her foul mouth, it's soon the law of the land.

I hate it. And and like we always tell people, you know, no one wants their name attached to case law. But but no, and that's an important point. And the reason we're getting into this for all of our listeners is this is another aspect of what we do and what we teach and what we talk about because you what we base everything off of are the laws in our country, specifically the Constitution and the Supreme Court cases. Meaning, this is why we get to say, "I don't care what your ideology is, I don't care what your political party is, what your religious, you know, what religion you follow, any of that stuff. None of that stuff matters to me. It's did it, did it, are you doing something illegal? What's the precedent for this?" Because the rest of that stuff it allows you to take a clinical approach to these situations, right? So, rather than, like you said, someone got pissed off because she said that and they didn't like the way, "And I don't think 14-year-old girls should talk like that." Well, great. I mean, that's that's your personal opinion. Yeah. And if your personal opinion, and if you have a 14-year-old girl at home and you don't want her to talk that way, you have the absolute right to enforce that role in your house. But guess what? You don't get to go over to someone else's house and tell them this is how you talk and this is how you can.

And I love how you put it, the the way the "soap in the mouth" decision. Can I can I describe that for just a second?

Please.

Brandei, talk to your parents. Every other F-word, drop it from the sentence so we can get through this, and link up with your attorney and your parents to a mouthwash company or a soap company. If they can have pictures of you with a bar of soap in your mouth and rinsing out in front of the Supreme Court, 14-year-old, yeah, and and you'll be a millionaire. Do you get what I'm trying to say? All I want is a little piece of that action. And and the idea is still sound, Brian. I I'm willing to fight and die to protect Brandei's right to drop the F-bomb, but I want to make sure a decision... Yeah. If she would have used the term "faggot" or "nigger," yeah, we're talking about a completely different set of rules completely because there is no provision for hate speech, Brian. There is no U.S. constitutional provision for hate speech, but those are likely to insult imminent lawless action. Do you get what I'm trying to say? And you also don't have the right to make a terrorist threat. And right. You don't have the right in our country to make a threat against somebody that's different from you because you don't like their difference. And so there, I will also stand at the line and say, "This is where your free speech ends if you're hurting a transgender person or you're hurting a homeless person because of their situation or choices in life." You don't have that right.

No, no, right. You have to be clear on that. And and well, yes, and and it's all based on on the context, excuse me, not just, like I said, what was your intent with it, but what what actually what did did this violate someone else's right? Because obviously what were the outcomes? What were the losses? What were the damages? Rather than just taking it for what specifically the words are, you have to take in all of that. And and it's it's important, you know, I mean, it's it's another thing that that we look at in in all of these cases with all of these issues and how we approach it is you have to take that clinical approach to it and go, "Well, yeah, I might not like what they said, but this was illegal and this part was legal." Once you cross the line here, that's when everything you say after that is not protected, and you are you can be held accountable for that for for whatever reason. And and that's again, it goes back to the importance of talking about all these because one, you're going to see more of these as this social media progresses and people are trying to, you know, cancel each other or something. I hate all those terms, and they yeah, because they made it, and now we have to use them.

Well, you know what it reminds me of, "Stop trying to make fetch work." It, stop, folks at home, right? Stop trying to grab work, "Stop trying to make fetch work." Am I lying? Isn't that what that becomes? "Mean Girls" is one of my favorite movies of all time. But they you...

Well, well, the the other thing is, too, Greg, is is that, you know, what we see in those cases, people like to say, "Well, you know, let's use it over here, oh, but not over here, let's use it over there." And go back to everything we just discussed in this episode, this is where these things, there's more, but this is where they come from, right? This is where you can you can use legal precedent. Now, they're trying to say, "Oh, you know, social media is so different. We have to pass new laws." And why? We're already there. You just haven't read them yet.

You're exactly right. What did we discuss, ten case laws today? And there's a thousand that are demonstrate my point, Brian. Single one applied to a girl who got on Snapchat and said a bunch of things. Yep.

I mean, I think that's that's punctuated by the F-word and sent to all the friends.

I don't know how Snapchat works, but I'm assuming to all of her friends. Yeah, yeah, yeah, exactly. A bunch of little foul-mouthed kids. Yeah, a bunch of, I bet they're all dropping that F-bomb like it's free. Yeah. You know, the first thing that they do in graffiti, what's the first word every kid writes when they write graffiti? It's the F-word because it's the most profound, Brian. That's how you know it's to get the most reaction. That's how you know it's kids. Somebody's going to say so, the these are all the, this is exactly why we're we're discussing this because, I mean, this there's no reason to come up with new laws or pass this. It just, look at what the precedent is. I mean...

Can I give you, can I give you a quick example of that? In Lake City. You know, you know where Lake City, Colorado is? Okay. And you know it's in Hinsdale County, and it's one of the largest counties in Colorado, and it's the smallest city, right? And the reason I love Lake City and Hinsdale County, Lake City was supposed to be Denver back in the day. They were grooming it to be the state capital. So, a lot of things happened, they're very small place. They know their way around a pandemic, Brian. So, I'm at a town hall meeting as the Undersheriff of Hinsdale County, and a bunch of people are bringing up their opinions, and you got to sit in there with the town council and listen, it's an open forum. You know, people have the right to say whatever they want to say. Every single person that didn't live in Lake City, that had a second or third home there, wanted a stop sign or a stop light at a specific intersection. Now, Hinsdale County to this day and and specifically Lake City in Hinsdale County has absolutely no red lights, no stop signs, no anything else. People go just slow enough and it's just fine. That's why people want to live there. But the minute you want to live there, Brian, you want to bring your rules from where you grew up, and you want to change it. Now you want to put a bodega on every corner. You would have put a stop sign, we got to mark the bus stop, let's stop one-way traffic on this road so I can sell my peaches. So, you know what democracy means? You do what's best for everybody. Now we do what's best for Leonard and Sally. You see what I'm saying?

You can go to Texas right now, and on some of the interstates of some of the cities coming in, there's just billboards that say, "Remember why you left." And it's for all the people like in Texas, people moving in from California and stuff like that. And and those all the billboards say, "Remember why you left." And it's a reminder like, we, if you left for a reason, let's not let's not bring that baggage with us here. We have a way of doing things. And I love that. I did not know that that was out there.

Doesn't that epitomize what we're talking about here? Yeah. Yeah.

You're not trying to say we're just bringing something to your mind, whether you act on it is your right. That's your right to free expression, isn't it? You know, I I totally agree. But don't make me, you know, follow your rules. Do you think I like that my sports figures are kneeling during the national anthem, Brian? We have our best friends that fought and died. Yeah. For our right to have a national anthem. And but I I take my opinion to myself because that's your right to do that.

Well, yeah, and I take the approach is one, he they absolutely 100% have that right. I support that right and should be able to. That same thing, peaceful protests, you don't like the message. I don't care if you don't like the message. If a citizen is an American citizen to air their grievances and and talk about these issues, and if you have a problem with it, that's your problem. I mean, right.

Right. Doesn't mean they're on the wrong side because you disagree with me. Yeah. You and I don't want to live in a place of people that just think like me. That's not a good place to be. Right. I want that. Yeah, I'm flying a flag right outside on the porch of Rogue Manor West. Yeah. That's my absolute right to do it. Yes. Drive by. You don't have to kneel, you don't have to salute it. That's your absolute right. But if you impede my ability to put up my flag or you steal or burn down my flag, now we have a case. That's what I'm trying to say. People just study your history, study the goddamn Constitution and these these cases because you you've threw in a couple in there that I was like, "Oh, I haven't I didn't actually know about this one." I mean, some like the Brandenburg and those, those are huge. I mean, everyone like, you know, but sometimes they're every day.

You know, I thought you had something against, you know, people during World War I pushing socialist examples, like, "Jesus, folks, actually, I sent Brian a couple, and I said, 'Hey, I want to bring these up just before we went on the air.'" And the very first three are bagging the socialists handing out pamphlets, and Brian goes, "Ah, here's where your brain is at." It's like, when they're just handing out pamphlets, if we only saw it through that lens, Brian, but do you get it? I made that joke for that reason because that's how everyone thinks. It's like, "Oh, well, you might..."

No, this is this is precedent, man. This is this is where we're at. Like, it's it's one, it's okay. We have a document, you know, we have a way of interpreting these things. You might not you're not going to like it all the time, but but that's welcome to a free and open society. I mean, that's you don't get to dictate how everyone likes to be. You get to dictate what you do.

Yeah, we've been in places twice. One, and I'm not going to say either the place because we travel there often. One was a person put up the rainbow flag that they bought online because they loved the color, and they thought it was beautiful. And in the country they were, it wasn't. And that's the last words he said before they chopped his head off. The other place is on the border of the Stands, and on one side of the street you can say what you want, you can publish what you want. And on the other side of the Stand, you do that, and there's a gulag in your future, and nobody will ever hear from you again. There's a bunch of unmarked potter's graves out there. And my thing is, we live in the greatest country in the face of the world because we have the right to say things like, "We're the greatest country in the face of the world." And there's apologists out there that well, yeah. And then I'll say that it has the right to say, "No, we're the worst country in the world."

Yep. I mean, and we can have breakfast together, and we can go to a movie together, and we should be completely okay with each other's opinions and, you know, what we can't let divisiveness, meaning disagreement, come in the way of our constitutional rights. The the amendments, the Constitution and the Bill of Rights, the amendments to the Constitution, are the most important document other than the Bible that I've got in my house. And and I believe in the Bible. You might not. You you might believe in the Talmud or you might believe in in in the Quran, or you might not believe in anything, Brian, and I will also kill and fight your right not to believe. Do you see what I'm saying? And you and I both have a friend that doesn't want to do that. They're like, "It's us or them all the time." You know what I'm talking about? Yeah, but I I have to navigate that, Brian, because I can't say that I'm legal and ethical and not not lived that way. That's right.

It's called it's called being a human being. Yeah. Yeah.

But where's the zealot? Zealot is over here or zealot is over here. They're always on the extremes. They're on the extremes. Views are what damages the fabric of our nation.

I yeah, even though they're protected, folks. Even no, and and I'm I'm okay with that. I I just think sometimes people forget that like, sometimes people are doing those actions to get a reaction. So, if you therefore then give them the reaction they want, I mean, you're you're furthering their agenda. We're okay with that.

Well, that goes back to the like you said, then the kneeling during the national anthem is is a perfect example because one, there was we have a historical example of that of someone not wanting to flag, and so so we have legal precedent for that. And then the other thing, it's like, "Well, they're they're they won, they have the right to do that, and that that's fine." And you getting upset and screaming about it, I think that's maybe maybe they got what they wanted. I I mean, that's fine, too.

No, no, you, yeah, we sit around the kitchen table. I totally agree with you, Brian. If we sit around the kitchen table and I go, "That damn guy, when you saw him with the motion and he did the other thing," it's okay. That's yeah, you know what? That's what makes it harder and stronger because we share those. You become more resilient when you get into the fray, Brian. You step back, you think about it with that scar tissue, and you get right back into the fray.

Yeah, but but with all these, I always take it, you know, look at it at, you know, when we have those interactions, discussions, opinions, reactions, whatever it is, you're watching something, it's, you know, it should change you and you should change it, right? So, when you and I have a discussion or we're disagreeing about something, a little bit of what I was thinking should fall into your bucket and a little bit of what you're thinking should fall in my mind, right? I mean, because because you're that's that's strengthening you, like you said, that's developing that resilience. That's that's chipping away at that stone. That's the, you know, the samurai swords, right? When they would build them, the Japanese swords, they would you soften up the metal and heat it up and then pound it up and pound it out, fold it up like like 10,000 times. And you're going, "That's what makes it so hard. It's the constant beating and beating and taking it and then because you're getting rid of the things that that don't survive and you're only keeping the strongest parts, the strongest elements." Well, that's a give and take, and that's why I love these cases. And and any time we've had different discussions about constitutional law stuff where it is, and I always generally try to take the whatever the opposite is of what you're you're thinking just to get get you riled up, which is a per for the purposes of either demonstration or description or...

And I buy into it every time.

Well, but it's also it allows you to lay out, lay out, "This is why this is the precedent, these are these are my reasons," and some people don't don't understand that's why I always ask if anyone's listening and you see some of the some of the stranger comments on our Instagram posts. My response is always like, "Hey," or if I ask a question, "Hey, what is this or where is this located?" And someone just gives an answer, and my response is, "What? Prove it. Like, tell me why." And man, some people, so those of you follow along are doing an awesome job, like they'll lay out, "Okay, well, I've seen this before and that likely means this," and I mean, they're just doing, boom, artifacts and I've been supporting a reasonable conclusion. I love it. It's so cool. Right? And then this one guy the other day was like, "What do you mean? I gave my answer. Like, why? You you asked me what you asked me to guess. That was my guess." Like, thumbs up, buddy. You missed the purpose of the exercise. And the purpose of exercise was what we're doing right now. You have to articulate, "This is the legal precedent, this is what the context is, this is what I think it is, this is why I think it's that."

Can I throw something out there for you? I miss our Carry the Load folks, and people look up Carry the Load (CTNL), all capital. Look up Matt and and look up Debbie Wright. Look up those wonderful people. But, Brian, you and I are down in in Texas, and we went to Dealey Plaza. We wanted to see it for ourselves. We wanted to prove it. We walked on the steps. We saw all the displays. We went to where the actions happened. And I remember crying because we let one person have his way and stay, and what that person did is changed altered the trajectory of the American history by becoming an assassin. Now, is that acceptable? Is it okay to say no to you and you're named this and you have to be put in this place? No. It's a free expression of ideals. And why I was crying, Brian, was when we were down there in the ground, I'm remembering these vivid pictures of people waving and holding up their children, and there was so much promise, and a couple rifle shots later, there wasn't. So, we have to embrace the Constitution. We have to embrace the rule of law. We have to embrace the differences. Look for the similarities and stop looking for the differences.

And that goes into if you try to continue to take away someone's speech or you want to say you can't say this or you can't do that, I'm guessing their reaction isn't going to be, "Oh, okay, you're right. I was wrong. Let me join your side." No, I think it's it's probably going to embolden them even more. It's probably going to they're now going to be even even more dedicated to whatever their cause or line of thinking is when you try to take away that speech. This is why I'm such a proponent of let people talk. Have them, you let them have their kids. Like the whole, you know, it's like the whole counter-protesting, "Okay, so you want to fight." You basically just want to show up and fight because that's what you want. You don't like them, hey, try this, bring a folding chair, bring a bring a glass of lemonade, sit down and let them talk. Because if they really are crazy extremist views, they're going to run out of evidence to support their claims. Eventually, they're going to eventually just they're they're they're going to run out of things to say. They're going to run out of reasons why, and to the point where just just let them go on continue to the point where their own supporters can be like, "Hey, wait a minute. Like, that sounds a little this sounds a little odd." Like, but if we want to fight them, well, then guess what? You're going to get a fight. And and I don't think that's the best approach in our country in the way we handle these things. They just don't. So, I I just I just think of you're so focused on tactical victories, you you're going to you're you you're going to lose the war. You're so focused on those battles, you lose the war, right? You're so focused on, "I need to be in the moment right now," that you have no plan for where this is going unless you're a socialist handing out pamphlets. No matter what you do.

No, but it's funny, isn't it? It is how the pendulum always swings. It does right and left. But guess what? There's always a center, and the closer you are to the center, the more likely your views are going to be accepted. You know, and you say that all the time, you say, "Yeah, I know bad ideas don't stick around. They don't." They don't. Yeah, good ideas stand the test of time. Bad ones don't, though. Bad one ideas will keep coming back, but they don't ever catch enough.

He calls that the bad penny. You know, when I look at something, she just says bad penny, and I go, "Get it. I immediately get what she means." It's going to turn up, you know, and that doesn't mean that's the norm. So, you're probably going to be okay. So, okay, you got my prediction. I'd love to know yours. I know we got places to go and people to see. So, what's your prediction on it, buddy?

Oh, they're going to side with her on this one. That's okay. That this is to me, this is like a kind of a no-brainer. We're going to give her a pen. She's going to be up there waving. They'll be on the stage. I I would, you know, it would be great just as like, you know, they included a bar of soap with their opinion or something like that. Like, don't you think that that's so ironic? It's amazing. But, you know, just being like, "Hey, sponsored by him," you know, "You're a kid, wash your mouth out with soap."

You know better. What do you think of defense? You know, yeah, yeah, exactly. But no, they're going to they're going to side with her on this one. I think. Yeah. So, and Mom and Dad, just remember how your 14-year-old will be remembered throughout history for this decision, being the F-girl. So, yeah, you're welcome. You know, jeez.

And I mean that only in the... Forget. Not smart enough today. Training changes behavior.