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Opinion

Judge Andrew P. Napolitano: Can Congress Ban TikTok?

Published

9 months ago

8 minute read

From Heartland Daily News

By Judge Andrew P. Napolitano

“Congress shall make no law … abridging the freedom of speech.”
         –First Amendment to the U.S. Constitution

When James Madison set about to draft the Bill of Rights — the first 10 amendments to the U.S. Constitution — he was articulating what lawyers and philosophers and judges call “negative rights.” A positive right grants a privilege, like a driver’s license. A negative right restrains the government from interfering with a preexisting right. In order to emphasize his view that the freedom of speech preexisted the government, Madison insisted that the word “the” precede “freedom of speech” in the First Amendment.

If the freedom of speech preceded the government, where did it come from?

Speech is a natural right; it comes from our humanity. The framers of the Constitution and the ratifiers of the Bill of Rights understood and recognized this. Congress doesn’t grant the freedom of speech; rather it is prohibited absolutely from interfering with it. In the years following the ratification of the 14th Amendment, the courts began applying the restrictions in the First Amendment to the states and their municipalities and subdivisions.

Today, the First Amendment bars all government — federal, state and local — and all branches of government — legislative, executive and judicial — from interfering with the freedom of speech.

You’d never know this listening to Congress today. The same Congress that can’t balance a budget or count the number of foreign military bases the feds own, that thinks it can right any wrong and tax any event, that has borrowed over $34 trillion and not paid back any of it; the same Congress now wants to give the President of the United States — whomever might occupy that office — the lawful power to suppress websites he thinks are spying on their users or permitting foreign governments to influence what folks see on the sites. All this is an effort to ban the popular website for young folks called TikTok and force its owners to sell its assets.

Here is the backstory.

Throughout American history, we have suffered from mass fears. In the 1790s, it was fear of the French and of Native Americans. In the 1860s, it was fear of African Americans and fear of Confederates. In the 1900s, it was fear of anarchists, Nazis and Communists. In the first quarter of the present century, the government has whipped up fear of terrorists, Russians, Saddam Hussein, Vladimir Putin and now the Chinese.

In his dystopian novel, “1984,” George Orwell analyzed the totalitarian mind and recognized the need that totalitarians have for fear and hatred. They know that when folks are afraid, they will bargain away the reality of liberty for the illusion of safety. Without fear and hatred, totalitarians have fewer tools for control of the population.

What is the government’s problem with TikTok? The feds want to use fear and hatred of the Chinese government in order to regulate the sources of data and information that Americans can consult. They have projected upon the government of China the very same unlawful and unconstitutional assaults on natural rights that the feds themselves perpetrate upon us.

Thus, in order to gain control over the American public, the deep state — the parts of the government that do not change, no matter which political party is in power — and its friends in Congress have advanced the myth that the Chinese government, which commands the loyalty of the owners of TikTok, might use the site to pass along misinformation or to spy on its users. The key word here is “might,” as the intelligence officials who testified to Congress on this were unable to produce any solid evidence — just fear — that the Chinese government is doing this.

You can’t make this up.

Remember the bumper stickers from the 1970s: “Don’t steal. The government hates competition!” I thought of that line when analyzing this. Why? Because the federal government itself spies on every American who uses a computer or mobile device. The federal government itself captures every keystroke touched on every device in the U.S. The federal government itself captures all data transmitted into, out of and within the U.S. on fiber-optic cables. And the federal government itself told the Supreme Court earlier this week that it needs to be able to influence what data is available on websites in order to combat misinformation.

The federal government basically told the court that it — and not individual persons — should decide what we can read and from what sources. What the federal government did not reveal is its rapacious desire to control the free market in ideas.

Now back to the First Amendment.

The principal value underlying the freedom of speech is free will. We all have free will to think as we wish, to say what we think, to read what we want, to publish what we say. And we can do all this with perfect freedom. We don’t need a government permission slip. The whole purpose of the First Amendment is to guarantee this freedom by keeping the government out of the business of speech — totally and completely. This is the law of the land in modern Supreme Court jurisprudence.

Were this not the law, then the government could suppress the speech it hates and fears and support the speech of its patrons. And then the values that underly the First Amendment would be degraded and negated. The government has no moral or constitutional authority to spy on us or to influence our thoughts. Period.

Does the government work for us or do we work for the government? Have we consented to a nullification of free speech in deference to whomever might be living in the White House? Why do we repose the Constitution into the hands of those who subvert it?

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2024 ANDREW P. NAPOLITANO

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As Congress struggled with yet another chaotic episode of negotiations over another catastrophic continuing resolution, all I could think was how wonderful it would be for everyone if they just shut the government down and brought an end to the Biden administration and its incredibly braindead and destructive energy-policy farce a month early.

What a blessing it would be for the country if President Joe Biden’s Environmental Protection Agency (EPA) were forced to stop “throwing gold bars off the Titanic” 30 days ahead of schedule. What a merry Christmas we could have if we never had to hear silly talking points based on pseudoscience from the likes of Biden’s climate policy adviser John Podesta or Energy Secretary Jennifer Granholm or Biden himself (read, as always, from his ever-present TelePrompTer) again!

What a shame it has been that the rest of us have been forced to take such unserious people seriously for the last four years solely because they had assumed power over the rest of us. As Jerry Garcia and the Grateful Dead spent decades singing: “What a long, strange trip it’s been.”

Speaking of Granholm, she put the perfect coda to this administration’s seemingly endless series of policy scams this week by playing cynical political games with what was advertised as a serious study. It was ostensibly a study so vitally important that it mandated the suspension of permitting for one of the country’s great growth industries while we breathlessly awaited its publication for most of a year.

That, of course, was the Department of Energy’s (DOE) study related to the economic and environmental impacts of continued growth of the U.S. liquified natural gas (LNG) export industry. We were told in January by both Granholm and Biden that the need to conduct this study was so urgent, that it was entirely necessary to suspend permitting for new LNG export infrastructure until it was completed.

The grand plan was transparent: implement the “pause” based on a highly suspect LNG emissions draft study by researchers at Cornell University, and then publish an impactful DOE study that could be used by a President Kamala Harris to implement a permanent ban on new export facilities. It no doubt seemed foolproof at the Biden White House, but schemes like this never turn out to be anywhere near that.

First, the scientific basis for implementing the pause to begin with fell apart when the authors of the draft Cornell study were forced to radically lower their emissions estimates in the final product published in September.

And then, the DOE study findings turned out to be a mixed bag proving no real danger in allowing the industry to resume its growth path.

Faced with a completed study whose findings essentially amount to a big bag of nothing, Granholm decided she could not simply publish it and let it stand on its own merits. Instead, someone at DOE decided it would be a great idea to leak a three-page letter to the New York Times 24 hours before publication of the study in an obvious attempt to punch up the findings.

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What a blessing it would have been to put an end to this form of policy madness a month ahead of time. January 20 surely cannot come soon enough.

David Blackmon is an energy writer and consultant based in Texas. He spent 40 years in the oil and gas business, where he specialized in public policy and communications.

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Canada among NATO members that could face penalties for lack of military spending

Published on December 21, 2024

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Trump should insist on these measures and order that unless they are carried out the United States will not participate in NATO. If Canada is allowed entry to the Brussels headquarters, then United States representatives would stay out.

Steps Trump Could Take To Get NATO Free Riders Off America’s Back

In thinking about NATO, one has to ask: “How stupid do they think we are?”

The “they,” of course, are many of the other NATO members, and the answer is they think we are as stupid as we have been for the last quarter century. As President-elect Donald Trump observed in his NBC interview, NATO “takes advantage of the U.S.”

Canada is among the “they.” In November, The Economist reported that Canada spends about 1.3% of GDP on defense. The ridiculously low NATO minimum is 2%. Not to worry, though, Premier Justin Trudeau promises Canada will hit 2% — by 2032.

A quarter of NATO’s 32 members fall short of the 2% minimum. The con goes like this: We are short now, but we will get there eventually. Trust us, wink, wink.

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Trump once threatened to pull the United States out of NATO, then he suggested the United States might not come to the defense of a NATO member like Canada. Naturally, free-riding NATO members grumbled.

In another context, former Army Lt. Gen. Russell Honore famously outlined the first step in how the United States should approach NATO: Don’t get stuck on stupid.

NATO is a coalition of mutual defense. Members who contribute little to the mutual defense are useless. Any country not spending its 2% of GDP on defense by mid-year 2025 should see its membership suspended immediately.

What does suspended mean? Consequences. Its military should not be permitted to participate in any NATO planning or exercises. And its offices at NATO headquarters and all other NATO facilities should be shuttered and its citizens banned until such time as their membership returns to good standing. And, of course, the famous Article V assuring mutual defense would be suspended.

Further, Trump should insist on these measures and order that unless they are carried out the United States will not participate in NATO. If Canada is allowed entry to the Brussels headquarters, then United States representatives would stay out.

Nor should he stop there. The 2% threshold would be fine in a world at peace with no enemies lurking. That does not describe the world today. Trump should declare the threshold for avoiding membership suspension will be 2.5% in 2026 and 3% by 2028 – not 2030 as some suggest.

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Trump may need to take the lead in creating a new coalition of those willing to defend Western values. As he did in rewriting the former U.S.-Mexico-Canada trade agreement, it may be time to replace a defective arrangement with a much better one.

This still leaves the problem of free riders. Take Belgium, for example, another security free rider. Suppose a new defense coalition arises including the United States and Poland and others bordering Russia. Hiding behind the coalition’s protection, Belgium could just quit all defense spending to focus on making chocolates.

This won’t do. The members of the new defense coalition must also agree to impose a tariff regime on the security free riders to help pay for the defense provided.

The best solution is for NATO to rise to our mutual security challenges. If NATO can’t do this, then other arrangements will be needed. But it is time to move on from stupid.

J.D. Foster is the former chief economist at the Office of Management and Budget and former chief economist and senior vice president at the U.S. Chamber of Commerce. He now resides in relative freedom in the hills of Idaho.

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