TUE MAR 10 9 AM Free speech cases with Professor Banzhaf; Politico covers #TXSEN race

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Welcome to the Mark Davis show on 660-A-N.

The answer.

All right, everybody, nine o'clock hour underway.

So glad you are here, 866-660-5759.

9 o'clock hour is the place where we take a little bit.

We think we pretty well put our thumb on the pulse

of everything going on in the news.

Now let's just take a look whenever possible

at some things that are just interesting,

some things that are coursing their way through human events

in our country, and of course, our legal system

is filled with stories every day.

Cases being filed, states doing certain things

that are absolutely going to be challenged in various ways.

And at the cutting edge of so many of these things

is one of the most popular guys that we ever welcome.

Still banging out classes there at George Washington University's

Law School, Professor of Public Interest Law.

Our friend, Professor John Bansath, welcome, sir.

How are you doing?

Good morning, Mark.

I could be back with you, but I've been able to see you

on Fox TV.

Thank you.

I do wind up there every once in a while,

and it's a pleasure to have you on.

Let's, the thing, I get regular emails from the professor

and they're just great.

They're always, they're always interesting,

but every once in a while I go,

you know what, this is one we got to devote some time to.

We all know that the First Amendment involves our freedom

to say certain things, to express certain things.

Describe to me before we get specific

how important it is to treasure that part of the First Amendment

that also protects us from being compelled

to express things we do not wish to express.

Well, the Supreme Court has said those are equally important,

the right to speak, but also the right not to speak,

not to be forced by the government to say something

which may be wrong, or are you ideologically disagree with it?

And this, more than half a dozen Supreme Court cases,

many lower court cases upholding it,

and this is what I think is happening in Virginia.

Now, the Washington Post calls it a preventive measure

against a massive disinformation campaign

on the part of the White House.

But the Republicans, according to the Washington Post say,

is a state-sponsored mind control.

It tells us what we're not allowed to say.

It tells us what we must say.

And I think it's wrong.

I think it's unconstitutional.

So let's tell everybody what is at the Virginia General Assembly,

January 6th, a few days ago,

in the past to bill regarding January 6th,

it would, make sure I get this right,

it would compel teachers to characterize,

either in a history class, civics class,

a government class, they would be compelled by law

to refer to January 6th as an insurrection,

even though that legal conclusion was never established.

That's exactly right.

We talk about it, but none of the people who were there

on that event on January 6th

have ever been charged,

much less convicted of insurrection.

And most legal experts would tell you,

we may differs to whether it was good or bad

or how peaceful or not peaceful it was,

but it sure as heck was not an insurrection,

this is a term defined by federal law,

no insurrection occurred.

So when you require teachers to help kids,

things which are factually incorrect,

you're clearly stepping over a line,

which the Supreme Court has clearly established

in at least half a dozen cases.

And this should cut both ways politically,

you provided an interesting paragraph of if this passes

muster, what kinds of things might future teachers be,

you know, some of them might,

if you have a state that's friendly to this thing,

we might have teachers compelled to stand up

for the veracity of pizegate or any one of a number

or that Elvis Presley is still alive

or that the moon landings were fake.

And indeed, we could just turn it on its head

and require teachers to say what happened on that date

was a peaceful protest and prohibit them from saying

that it was a violent attack or something along that line.

This is the problem, you can't,

you shouldn't have legislators telling people,

particularly teachers, what they can and cannot say

with some very limited exceptions.

With, with so many lawmakers,

I'm guessing the Virginia legislature,

like most of them, is chock full of lawyers,

what made them think they could get away with this?

I'm not sure they think they can get away with it.

A lot of laws are proposed in many a past

with the idea that they're virtue signaling,

that they're sending messages to their people,

whether it's on the right or on the left,

they don't really care whether it will be upheld or not.

Also, this could, the very fact that this is going to be

threatened and almost certainly going to be signed

by our governor could put the fear of God into some

of these teachers and maybe they would reframe

from saying things which they think are, in fact, true.

No, my Professor John Banzoff is here.

Let's explore some other places where people,

where government sought to get people to compel people,

to prod people to make expressions

that they maybe didn't want to.

Tell me about Miami Herald Publishing Company

versus Torneo.

This was the Supreme Court and something

called the State Right of Reply Law.

What was that?

What happened there is the state tried to require newspapers

to give free space to reply, for candidates to reply

to things they didn't like in the newspaper.

They were compelled, therefore, to put into their newspaper

things to which they were opposed, if the Miami whatever

or the Dallas news, for example, endorsed candidate X,

they would have to provide free space for candidate Y,

maybe candidate Z.

Well, I can see somebody saying what's wrong with that

and I can certainly see in my industry

that we have been burdened by the ridiculousness

of equal time provisions.

We had one of those in the news

and that we'll talk about on TV in a minute.

So is there any argument that could be made

for newspapers, broadcast outlets, being compelled

to show that ill-defined concept of balance?

Well, I think there's an important difference

between newspapers and broadcasters.

Newspapers, anybody can start a newspaper.

And today, of course, anybody can, without a podcast,

anybody can put up a website to say whatever they want.

But broadcasters, of course, are unlimited frequencies.

If I wanted to go down to Dallas and decide

I'm gonna put on the band's half news

and put it on a frequency which is close to yours,

I would be shut down.

So there's a stronger argument.

And remember, I'm the guy who used the fairness doctor

to require broadcasters to provide free time

for anti-smoking messages.

But that was at a time when they were a very limited

number of outlets.

And the court upheld my right to do that.

Of course, we got rid of cigarette commercials.

Today, the fairness doctor is gone, in part, I think,

because there are so many different competing outlets.

There's radio, there's television, there's podcasts,

there's websites, there's all kinds of things.

And maybe it's also time to get rid of the equal time

provision which applies to candidates.

Fairness doctor applies to issues equal time

applies to political candidates.

Did you notice a few weeks ago when a Senate candidate

from down here in Texas, James Talleriko

went on Stephen Colbert's CBS show

and there was a weird fog of controversy

in which CBS apparently said,

oh, you can't air that because you'd have to have on.

And this wasn't about a Republican rival.

It would be the Democrat rival, Jasmine Crockett.

And that all got very silly, very fast.

Let what is wrong with letting shows have on

whomever they wish.

I think that today, because there are so many different

avenues for expression, I think that makes sense.

And what was really funny about this is that the equal time

doctrine applies to broadcast except if they're bona fide

in the news.

And so the view was claiming they're bona fide in news.

I assume that Fox TV would say,

oh, the five, that's news.

Where's actually their discussion program such as yours.

Gotcha, makes sense.

Okay, woolly versus Maynard, you mentioned a state requirement

that motorists display the state motto, live free or die.

That's New Hampshire, right?

Well, I've seen that on New Hampshire plates long as that

is it not there anymore?

Who challenged that and why?

They challenge it because although it's not a state

that which is either true or false, ideological explanation,

they didn't want to be advertising and taking the position

that they believed in live free or die.

There's an earlier one where the Supreme Court said,

you can't require students to recite the Pledge of Allegiance

in school because some students may not agree

with some of what is in the Pledge of Allegiance.

In other words, you can't be forced to say something

or to appear to be saying something

with which you disagree.

In those two cases though,

because I'm generally very on board with the notion

of not compelling people to say something,

if I'm living in New Hampshire

and live, which live free or die,

I believe is the state motto.

It's kind of a close cousin to in God we trust on the money.

We may have to go there in a minute.

That every people in New Hampshire can believe

whatever they want to wish.

I've never thought that a motto on my license plate

would obligate anybody to think

that I necessarily sign on to what it says.

Well, suppose a state adopted a motto saying,

Democrats always for no more Trump.

I don't think you'd want to be driving around with one,

perhaps even maybe both of them on your license plate.

Once you, I think once you open the door

and tell a state that they can do certain things

and tell you and require you to appear to say something.

I mean, you may not have a choice

as to what's on your license plate.

Some states give you the choice, some do not.

But the idea is that you're driving around

and people may see your car

and think therefore that you support

live free or die or Trump forever.

I think I still believe the opposite,

that if we did have a state that said Democrats only,

which I think they do have in Massachusetts,

or we love Trump, which I think we have in Texas,

that you would know that there's never

unanimity of opinion.

How far do we have to go on this?

In New Mexico, land of enchantment

can somebody, you know, Albuquerque file suit

because they're not so enchanted?

I doubt that.

And I think this is the kind of thing

like most constitutional issues,

most there are no clear bright lines.

These things go to court.

I don't think somebody could challenge land of enchantment

because it seems to me to be completely non-political.

Obviously, Trump forever or no Democrats

would be very, very partisan,

something like live free or die

or something along that line

might be somewhere in the middle.

Gotcha.

You mentioned, if we could do an hour on this,

you mentioned the Pledge of Allegiance.

I'm an enormous fan of the Pledge of Allegiance.

Obviously, it was a West Virginia case, I believe,

where the court struck down the requirement

of the Pledge of Allegiance.

I remember somebody saying, you know,

it is a government school,

and it is the country has provided the school

so pledging a legion, what's the argument against that?

I'm not sure exactly what parts of it people would object to,

but once you've said camels nose under the door

and say that they can require liberty and justice for all,

for example, you are opening the door

and then you have to draw these very difficult lines

that we're just talking about.

The whole idea of the compelled speech doctrine

is to say, no, government stay out of it.

Government, yes, you can require warnings on cigarette packs

because that's commercial and involves health.

Yes, the government can require that when you go to a food store,

you have to be able to look at the ingredients

so you know what you're buying

and don't buy what you don't want to buy.

But anything which is ideological or political

shouldn't be dictated, mandated by the government.

No, and obviously, you know, there is the pesky under God

in the pledge of allegiance,

where are the atheist and agnostic kids

and their parents might say, I don't believe that.

And history should record that under God was placed in there.

I want to say in the Eisenhower administration,

it didn't, it used to be one nation indivisible.

Under God got put in in the mid fifties during the red scare

as kind of a shiv in the ribs to Godless communism.

That's right, and if you go into court today,

most people will swear on a Bible,

but if you insist you don't want to swear on a Bible,

you can be sworn in on something else.

Lord, I certainly imagine what that might be in some cases.

All right, time is short.

Let's get this was, all right, Hurley versus,

this was I think it was Boston, Hurley versus Irish American,

gay, lesbian, bisexual group of Boston,

the court held that a state, what did Massachusetts want to do?

Do they want to require parade organizers

to include a group that didn't want exactly?

They said, this is a public parade is on a public street.

You must include this group,

which has something to do with the movement,

your issue you're trying to portray.

But the people running the parade said,

no, we don't want to appear to be endorsing gay rights

or whatever you want to call it.

And you can't force them to do that.

If you want to have, if the other guys want to have

a different parade, that's fine.

We have marches on Washington, pro-borschen,

we have marches on Washington, anti-borschen,

but you can't require the pro-borschen people

to have a right to life group in the middle of their parade.

And conversely, if on Pride parade day in Boston,

if a conservative group demanded to be in that parade,

that answer would be no as well.

One would certainly hope so.

It's a whole more recent one.

Let have the parade that you want.

Last thing, because this gets us to the one

that everybody remembers.

This was a cake maker, a graphic designer,

the old wedding thing, 303 creative versus Salinas.

The court held that states cannot constitutionally

compel a graphic designer to create custom wedding websites.

The business owner did not advocate gay marriage,

respectfully said no.

The marketplace takes care of this, doesn't it?

Because it's Denver for a grand out loud.

Down the street, you can find 10 places

that'll do your gay wedding cake.

Exactly, and the interesting thing about it

is there's an alternative way to resolve it.

The statute prohibits discrimination

against people, not ideas.

So that if a cake maker says, I am not

going to provide a same-sex wedding cake for gay people

or straight people.

I mean, you could have a gay couple,

no, the mother of one or the father

that another wants to come in and order a cake,

but they can't get it either.

So you're discriminating not on the basis

of ideological thought, but rather on who walks in.

And that can be prohibitive.

I knew this would be just a treasure trove

of the fascinating stuff.

It always is.

Professor of Public Interest Law at George Washington University,

John Bansaf, we'll be talking soon, sir.

Keep emails coming and thank you

and good health and success to you.

Always appreciate your visits.

Thank you, sir.

Good to look for you on Fox again.

No, I'll be, I think I'll be on Will Kay tomorrow

if we're talking.

It is Professor John Bansaf at GWU, Mark Davis 924.

All right, there may be news being made.

I am fascinated by the pressure being brought on John Thune

to do something about the filibuster.

He's apparently having a word or two about that.

Let's check into that real quick on the way into news.

We are in Crowley and John Mark Davis.

That's you.

Welcome.

How are you doing?

Hey, hey, Mark, I wanted to ask you.

I know two people that vote in the primaries.

One of them is on my son.

And these polling places were middle class, maybe a little affluent.

But in both of the polling places, the Democrat side

was wrapped around the corner.

And there was hardly anybody voting a Republican.

And that kind of terrified.

As well, OK.

So you're in Crowley.

No, not really.

We're not in Crowley.

We live out in the crunchy.

Really?

OK.

Crowley.

Well, we're calm about footwork, riding your on my phone.

Yeah, so it's short answer is, and it's kind of interesting

because it's not that everything revolved completely

around the Senate race.

But Republicans, we certainly had a certain level of enthusiasm

for our race, the Corning versus Paxton versus Hunt,

trifecta of choices there.

But maybe you're just in a stretch of the county

that involved off the charts enthusiasm

for Talleriko versus Crockett.

And that was what it was.

And now the big question becomes, Josh,

thank you, John, thank you, get a hop in the news.

Did that necessarily mean that all that Democrat

enthusiasm means that the Democrat wins in November?

No, it does not.

Because I have a feeling you're noticing

a certain amount of enthusiasm on the Corning

V Paxton battle that also lies in wait for us

on the 26th of May.

931, more of you on the other side.

Mark Davis, 660 AM, the answer.

Really?

There you go.

Technology, not my friend.

Somebody awaken Van Morrison immediately.

But you understand it's a challenge.

386666057.

I'll tell you something that has been awakened

is the iron and the bar has been placed

at a higher level for what we expect from our Republicans.

Did you see some of the rumenations

of the great actor James Woods the other day?

I mean, they don't come more pro-Trump in Hollywood

than James Woods.

And he's just a great actor.

And I would say so even if he didn't share my politics.

His and I, I guess we can navigate this a little bit.

This may resonate with you.

Because what does it mean to self-identify as a Republican,

to be a quote, member of the party?

You can put that on or take it off like a suit of clothes.

Conservative is different.

It means something.

Obviously, so does liberal.

The liberal and Democrat that you can become

or not become a Democrat,

the way you take off and put on a pair of socks.

But if you're a liberal, that means something.

If you're a conservative, that means something.

Being a Republican, it's just an R by your name.

It's an indicative factor of how you vote it.

Anyway, the point that James Woods put up,

he said, I'm done with the party.

I love Trump.

I support Trump.

I don't think the Republican party structurally

as it exists right now supports him enough.

So I think what it mostly means

is he threw given money to it.

Mm-mm, okay.

I will tell you going into the midterms.

If the large broad political action committees

or the win-read people who annoy you

with those stupid text messages all the time,

or the National Republican Sanitorial Committee, the NRCC,

if you want to bypass every single bit of that,

because they will then take your money

and send it where they think it ought to go.

They think where they think, yeah, right.

If you've got X amount of money

to give and you want to be really specific

and intentional about that,

find specific candidates that you know you like

in Texas and elsewhere, if you wish,

and send those specific candidates your money.

Now, a word about brother Thune,

who has been Senate Majority Leader for a while now,

Republican of South Dakota,

and the harshest of lights

is shining on Senator Thune,

who is the Senate Majority Leader,

and there has been pressure from none other than the president

and a nation crying out for the Save Act.

Well, at least the Republican half of it is.

And although this is viewed by many as an 80-20,

reliable elections who in the world could be against this,

making sure somebody is a citizen before they vote,

oh, how revolutionary is that?

When we had Chip Roy on this week,

we talked about whether putting other things in there

about mail-in voting, early voting,

some of the trans issues going to another entire topic,

have the Save Act contain things that actually save,

that save your daughter from swimming next to a dude

in a swim meet, running next to a dude in a track meet,

seeing a dude's junk in the locker room

after either of those events,

that's something to save your daughters from.

And how about saving our daughters and our sons

from the demonic sacrifices

and sexual mutilation of the trans cult?

That's something worth saving people from as well.

And this is placing the bar higher and higher and higher,

which by the way, I like a high bar,

means when you, like we had Dick Fosbury's birthday

the other day, right?

But Fosbury flop, when it first got to go

over the high bar backwards, which just makes sense.

Why do you want to drag your feet over that thing?

You're just going to kick it off.

You clear a higher bar, it's a better thing.

Now sometimes you place the bar so high

that nobody can clear it.

And is that part of the theatrics of this moment?

Is that part of the political optics of this time?

Where dog on it, we're going to flood the zone

with all kinds of things we want

and we're going to instantly know

it may not always bring success,

but what will it bring?

It will bring clarity.

It will bring clarity.

We will then know who's on board and who's not.

We will know who the fighters are and who they are not.

And in terms of, it's kind of funny.

It's just the last couple of days.

So he's gotten a big whiff of this, Senator Corning,

who's joined the whiff list of people

who's ready to do something about the filibuster.

But now you know who's not,

is this John Thune giving people cover

for if they want to come off of that list?

Because the Senate Majority Leader, John Thune,

just yesterday said, I don't know,

just don't think we can do it.

Don't think we got the votes.

Then let's see what it looks like, not to have the votes.

Let me see and let me know and let me recognize

the people who are up for the fight

and those who are not.

So as I'm sitting here juggling all this stuff,

Grande gets a mayor and says,

John Thune's on the floor of the Senate

and he's talking.

Is it okay?

Let's go see what he's talking about.

Any answer is not this.

Senator Thune wants to have your ear

about the shutdown for a moment.

All right, fine.

But I will tell you this seems to me

and it's a very familiar behavior.

When there is something you're doing

that is insufficiently conservative,

that you just can't bring yourself to shoulder,

that you cannot bring yourself to have the spine for the fight.

You change the subject.

So we're going to try again.

I'm going to move to reconsider

and we will have another opportunity

to vote on that proposal,

the original proposal,

negotiated by House and Senate.

This is for Department of Homeland Security funding,

which by the way, absolutely is important.

I'm not sneezing at Homeland Security funding.

We're at war with Iran.

Probably a good idea.

You're going to stand in line for seven hours at the airport.

You're a good idea to get DHS funding going.

But this is, don't look over here.

Look over here.

Democrats and Republicans.

And less between now and we time we vote on this,

they decide to engage in conversations and discussions

and we do arrive at some agreement

that would enable us to actually fund the government

and perhaps include some of the things

that the Democrats want included.

But you can't do that if you're not at the table.

You can't do that if it's a one-sided negotiation.

And it's pretty clear at this point

that's what we're talking about here.

Kind of a bitter irony, isn't it,

for John Thun to talk about some people showing up

and some people not showing up?

Maybe it's time for John Thun to show up

and put on the armor of battle to get rid of the filibuster,

either get rid of it, get rid of the need to do it

or actually do it.

The talking filibuster, the standing filibuster,

it's the way filibusters used to be.

We need to make filibusters great again

where guys had to stand there and talk.

And gals, I guess we have women in the Senate now.

And it's great.

It means that you think this wouldn't be covered wall to wall?

When you give me the opportunity to think about Republicans,

the ones who have a spine standing there

and talking about the need to prove citizenship before voting.

And perhaps while we're at it,

the need to keep boys out of girl sports

and the need to keep greedy doctors knives

away from our kids' genitalia,

there are two kinds of people in Congress,

two kinds of people in the Senate,

those willing to fight for those things

and those who are not.

Those willing to fight for those things

and those willing to speak out against them.

I'd love to see both.

I would love to have clips of both

because it would be very, very instructive.

All right, finishing up the Politico article

from Tasha Burns of Liz Crampton, this posted last night

about eight o'clock.

Trump is delaying Texas Senate endorsement

to pressure GOP senators on the Save America Act.

President Donald Trump is delaying his endorsement

in the Texas Senate GOP primary

to ramp up pressure on Republican senators

to pass his high priority voting restrictions bill.

You guys Politico, gonna Politico voting restrictions bill

about voting security bill ladies.

Trump had been prepared to quickly endorse John Cornan

after the Texas Senator outperformed expectations

and finished ahead of facts in Texas attorney general.

No, every incumbent is expected to do spectacularly well.

It is crazy that the John Cornan has been there

for a quarter century, couldn't break 50%.

So please, in last week's primary,

the people that Paxton managed

to at least forced all that outcome.

When he announced Friday that if the Senate,

well, okay, careful, careful.

Ladies, my second scolding.

When Paxton announced Friday

that if the Senate passes the bill,

he would drop his campaign.

No, no, no, no, no, he said he would consider it.

And I believe he will consider it.

He will consider if the save act should actually pass

still, which he looks even less likely now.

And hit the president's desk and the president would sign it

and maybe be so thrilled with the,

once again, the alliance with John Cornan

that even endorses Cornan,

which would be certainly a bit of a benefit

to Senator Cornan.

I think that's the point where Ken Paxton takes a look

at the days and weeks that led up to that,

considers getting out and says,

I don't think so.

He will then run ads that say,

hey, you like that save act?

I'm pretty well the reason it happened

and I'm not even a senator yet.

Imagine the kind of progress we can make

when I am a senator.

Mm-hmm, mm-hmm, mm-hmm.

Let's do this.

I've got about a minute here and it might as well be filled

with a little bit of Ted Cruz.

He was on with Laura Ingraham last night

and it was, well, there were a number of interesting things here.

Let's take a look at this.

Idiot and the Democrats are going to oppose him

whatever he does.

But the decision to launch these attacks on Iran

is the single most consequential decision

of the Trump presidency.

Iran for 47 years has been the most dangerous terrorist regime

on the face of the planet.

For 47 years since the Islamic Revolution in 1979

when they took Americans hostage and ever since,

the Ayatollah Khomeini and now the Ayatollah Khomeini

have waged war on the United States.

So, and just to wrap up with the following thing,

somebody asked me this generally every day or every other day.

Mark, I'll come all these Trump fans

who are not on board for all kinds of intervention

that all kinds of regime change wars are suddenly on board for this one.

First, I think we've now seen we're not going to have some lengthy regime change war.

We're destroying one regime giving Iran the opportunity

to replace it with something better themselves

with what you might call heavy suggestions from us.

And one of the reasons, and my favorite question is why weren't you know,

a lot of the, why wouldn't the Trump base talking about taking out the Iranian regime two years ago

or you know, seven years ago when he was president before?

It's because nobody thought it was possible.

Nobody thought it was on the table.

Trump puts things on the table that nobody was even willing to consider.

And now it's happened and it is a net positive, 9.50.

So as we observed the passing of Boston's lead singer, Tommy De Carlo,

who took over after Brad Delt died in 2007, I go to the one actual Boston album

where Tommy De Carlo was found doing songs.

It's called Life, Love and Hope from 2013.

Tom Sholes on the guitar, as he always has been, and it's his birthday.

He's 79.

So you got that too far.

Producer Rhonda K. Marland on the Twitter.

I produce a Rhonda K.

Thank you, Mr. Matt for technical guru skills.

Mary Rose for news excellence.

God bless our country, our troops, our families, be good.

Have a great day.

See you tomorrow morning for the Wednesday show.

Mark Davis 660 AM the answer.