all right looks like we're live thanks for following me hopefully the connection is holding up and the audio isn't muted i'm john bryan west virginia civil rights lawyer and if you've been watching my videos and following what i've been doing you know that i've been fighting against the gubernatorial tyranny that's been occurring here in west virginia and elsewhere where governors and unfortunately one of the worst states believe it or not where this has happened is west virginia and really the complete opposite of one of our sister red states the uh state of south dakota where in in south dakota the wonderful governor over there has given her and and i say that facetiously because as she has said it's not her power to give but she's allowed her residents the freedom of making their own decisions such as the the situation or you go to the state of florida where i grew up and even though it's it's nowhere near a solid red state or solid blue state it's always been been sort of tangling in but fighting in between everything's open there are no restrictions does that mean that nobody's wearing masks or nobody's social distancing or nobody is caring for their neighbors or caring for their family members does it mean that everybody is bringing home sickness and death to their grandmother no absolutely not you know because we don't need we don't need a morbidly obese governor who can't handle his own caloric intake lecturing us on health period and it's not just about the person because again i'm being facetious here it's about government it's about government we don't need government to tell us what to eat remember with the food pyramid remember with michelle obama's school lunch program we don't need the government to tell us what to eat um we're perfect perfectly capable of coming to those decisions on our own but just like anything whenever you start to rely on the government for food they get to then tell you what kind of food you're going to eat what kind of food you should eat likewise when you depend on the government or give them power over your health care look what happens look where we're at remember back when obamacare was was first being discussed and socialized medicine has always been discussed uh you know going back decades really part of the conversation hasn't been well what what are the consequences to our liberty what are what what's what's our uh what freedoms are we going to be giving up if we have uh receive health care from the government i don't i don't think the the only discussions were really well you might lose your doctor but you can keep your doctor if you want to keep your doctor of course that was a lie but look at all the insidious things that comes with letting the government into your health care you know they get to say how old you get to be whether or not you get certain treatments to prolong your life or whether you've just lived long enough they get to say whether you have to wear certain things such as a mask they get to say whether you have to be injected with certain substances and the list goes on and on but it all starts with giving government and inroads into your health care so instead of you getting to make decisions with your doctor now you've got government inserting itself into the process and you have people who you know like our morbidly obese governor and again that's not i'm that's a scientific term or you look at the the guy that is making decisions in pennsylvania take a look go google that the the the head state health person in pennsylvania or in in some of these other states you have just people who obviously are not well balanced mentally or they they are not able to make their own decision healthy decisions not just lecturing us but mandating us on things that should be personal decisions between us and our medical professionals and the medical professionals we choose to hire or we choose to consult but here we are in 2020 when we've really seen the end result of if we keep going down the road of socialized medicine not only do we have to wait for a surgery like they do in canada or in the united kingdom it may be free but you have to i mean nothing's free so you have to wait and wait you get on a waiting list and you have people in the past coming to the united states for medical treatment that they had to pay for rather than to wait in their socialized health care system for the free procedure now what does this have to do with with what's going on here well with all the mandate tyranny we're seeing these public health officials run amok they're drunk with power they're intoxicated with power and they've been out of control and in pretty much every state in almost every state especially here in west virginia so i filed a federal lawsuit on behalf of a restaurant in putnam county west virginia that's the bridge cafe and bistro and it wasn't just about them they just stepped up because what i'm going to get to is is the response was filed by the governor through his lawyers and several times in the response he he just bashes this little restaurant that that he had made to suffer through his lockdown he bashes them just for just for standing up for their liberty for asking for due process he bashes them calls them small in fact you can see i'll show you this is the this is the governor's response so his response when you file an answer to a lawsuit you can file a motion to dismiss or you can file an answer but you don't have to file an answer if you file a motion to dismiss and what that is is just asking the judge to dismiss the case on the grounds that even if everything that the plaintiff in the lawsuit says is true as a matter of law there's no case there so therefore it should be dismissed and i knew that we would they would file one because we we had already been in court once and the judge had indicated that they were going to file a motion to dismiss so here is the motion to dismiss the lawsuit that was filed by the restaurant in putnam county west virginia but you can see how they begin this on this holiday in 1941 again they filed this on on pearl harbor on this holiday in 1941 more than more than 2 400 americans perished in the attack on pearl harbor today on average more americans die each day from the covid 19 pandemic but this lawsuit is not about them it's about erasing west virginia's efforts to protect the public health from that deadly pandemic because the owners of a small restaurant small restaurants in putnam county don't want to wear masks don't want to wear masks or comply with the governor's directives regarding masks the legal rights the plaintiffs say give rise to this action are not limitless and come with legal responsibilities and duties oh really and what are those and where can we read these their claims thus fail as a matter of law so it's a small restaurant they're they just don't want to wear masks they just don't want to comply this is basically pearl harbor every day and the governor does have limits on what he can do so therefore the plaintiffs must lose well what are the limits what limits does the governor have that's what all this is about there are no limits are what are the limits where can i read these these limits you'll see that the governor's claim is is that to the federal courts there's nothing that you can do and that's consistent with the rulings in federal courts across this country unfortunately but there's nothing that you can do because there's no federal constitutional rights that are implicated by governors reacting to any emergency and that just absolutely cannot be true because our country was born in an emergency and that how could our founding fathers um not put an exception in there for times of emergency when all they had lived through was emergency so the argument is is that any time there's an emergency which is is is defined by numbers of deaths you see why they're focusing on statistics so because you have this number of deaths either here or elsewhere then government must act to protect people well if that's the standard and i missed in the constitution where it stated that these rights only apply so long as everybody's safe that's never been the case and that never should be the case in fact our state constitution here in west virginia which i've pointed out so many times and nobody really cares it says that it applies all the time 100 100 of the time 24 7 7 days a week and will never be suspended not even in a time of war so does that mean that although it won't be suspended in a time of war if we have a pandemic that's bad enough then they will be suspended no in a time of war and the governor has actually taken that during some of his news conferences he said we have to look at this like we're fighting the war like the enemies at the borders you know it's it's not a war it's not a war and i don't know that if if it was a war i think we would have gotten our ass kicked a long time ago we'd already be speaking chinese by now because what has government done to stop it they can't stop it it's a virus when have they ever been able to stop the flu the flu's killed people wouldn't have been nice if they held this power the entire time but they allowed lots of people's grandparents to die of the flu in previous years and probably many otherwise healthy people since the mask mandate the numbers have skyrocketed prior to the mask mandate the numbers were pretty nominal but it doesn't matter you you deny science you you don't believe in science but when we look at the science when we look at the statistics they've gone up up up they've skyrocketed ever since the mandates everybody's wearing masks around west virginia these days in all the stores everybody's wearing masks in fact it's rare to see somebody without a mask now and i didn't even think i'd end up see it that way and yet the numbers continue to go up almost like it has nothing to do with it like it's going to do what it's going to do whether or not you wear a mask it's almost like it the virus doesn't care whether you wear a mask which makes sense because where did we see the outbreaks early on exactly where people were wearing masks in the nursing homes that's where it first spread around west virginia in almost all the initial deaths they were all in nursing homes where there were all where there were already requirements in place to wear masks they spread in hospitals where people are already wearing masks so if we look at the science it doesn't prove at all that this is something necessary that has to be done to save lives that's just not the case the only science that the governors presented in this case are two affidavits one from the head of the uh department of health and human resources basically swearing under oath that he has all this experience and he's never seen anything so bad therefore you know he thinks it's it's necessary to comply with all these requirements that the governor is outlining in his executive orders then there's an affidavit from our so-called kovidzar and i'm not sure when it started to be a thing in our democratic republic to have czars over anything czars are dictators that the that they had in russia and czars were known for their ability to do anything and everything they want without any restrictions so why would we want a czar over anything that's besides the point but the other affidavit was from azar the kovidzar who was the head so-called public health doctor in the state outlining you know how how what his experience is and how bad the pandemic is and why he thinks it's so necessary to to engage in all these all these uh mandates and restrictions but how is that i mean that's literally that's literally not even science i mean that's that's just direct testimony that's just opinion i mean two doctors can have two different opinions two public health bureaucrats could have two different opinions though they probably wouldn't the fact is is is there's there's really very little science being involved and science can be disputed where it is disputed and where there's different differing opinions it's almost like we should have some sort of body maybe a legislative body and we could elect people and we could have districts where everybody in the district could vote to who they want to be elected as a as their representative to go into this this legislative body and they they could look at these facts or look at these this science these opinions and they could debate these things and they could engage in fact-finding and ultimately they could vote on things and since we elected them they're sort of like our our voice our votes and that way we were included in this process it's almost like we should have some sort of legislature which if there needs to be a new law stating that everybody has to wear a face covering for any reason um you know could be it could be an n95 mask could just be a a bandana or it could be a burqa if we're going to pass a law that everybody's got to wear this now outside their own home it's almost like we should have a vote on it but no no no we can't vote because it's an emergency it's a state of emergency we have to act now we have to act quickly we have to act more quickly than our legislature can be called putting aside the fact that our constitution says that you can only enact laws through the legislature and that the constitution shall never be suspended and that the governor cannot create legislation we we don't really need to follow that because it's just such an emergency it's like pearl harbor it's like pearl harbor every day and this is just a small restaurant you're just a small restaurant you're just a peasant a peon and nobody cares whether or not you want to wear a mask and you know from the beginning of this it had nothing to do about not wanting to wear a mask because it's it's it's we just don't want to wear a mask and people have been free to wear masks all they want the fact is is what people are objecting to is the government mandating via the governor that people have to wear masks or else be arrested and thrown in jail that's a whole lot different that's not just they don't want to wear a mask that is a whole it's a whole lot of it's a whole lot of things because it's not just about the substance of it's about the process to get to it when we have a process that's enshrined in a constitution and it's just thrown aside we don't follow the process then we allow other things to happen look at all this this voting situation you had the voting laws changed because of the pandemic because of safety reasons and then look at the results widespread chaos half the country thinks that the election was stolen well what was the remedy that was offered by many of the states including including the attorney general of our state well it was the argument that some of the votes should be thrown out and decertified because the governor or the executive branch can't just on their own change the voting laws that were established by the legislature they can't do that that's in violation all those states constitutions which in turn violates our our federal constitution our right to vote a lot of the same people making those arguments are perfectly fine with it in the context of something they agree with like making other people wear masks or closing down restaurants or whatever the case may be so get it through your head it's not about the inconvenience of wearing a mask it's about the protection of liberty because if you allow liberty to be taken even without the legislature just by one man even in situations where the constitution says it can't happen then you allow anything and everything you if you allow them to make you to a governor to to mandate mask wearing under threat of arrest you allow a governor to mandate forced vaccinations you allow the governor to mandate rounding people up who haven't taken a certain vaccination or who who who meet any other criteria and putting them in some sort of concentration camp it's not a stretch if you ever wondered how the people of germany allowed things to get to the situation that they reached towards the end of world war ii you can't be wondering much now it only took 14 days for people to to fall in line and and close their businesses when that when the government told them to close their businesses and to be afraid to go to their neighbors business because the government told them that they weren't allowed to in fact it was it's been a a terrifying constriction of of of civil liberties that's happened just in 2020 and this is the civil rights issue of our time is the restriction of civil civil liberties unilaterally just by governors across the state across excuse me across the country and i really didn't think it would would have been as bad as it was here in west virginia but the governor went ahead anyways because he's listening to his czar he's listening to these so these public health officials who are government employees who if you look at the numbers overwhelmingly donate to one side of the political equation and who have are seizing this opportunity to increase their own power and and and look look what it's done with people like dr fauci and these are people who are unelected now the governor is elected but he's elected to enforce law just like the president is elected to enforce law who do we elect to be our voice to debate and enact loss either congress on the federal level or the state legislature's legislative legislature either in west virginia the house of delegates or the senate on the state level we didn't vote for the governor to create new laws we voted for him to administrate and enforce the laws that have already been set in place by the by the state legislature so the governor's defense is basically that there's nothing that the federal courts can do um you can't stop me um they just go over the numbers they go over the numbers you know this is how this is how dangerous it is this is how many deaths we've had looking back at their motion to dismiss here's what they rely on jacobson see this jacobson versus commonwealth of massachusetts that's a 1905 u.s supreme court case that was challenging the forced vaccination of mr jackson excuse me mr jacobson by the commonwealth of massachusetts and the issue before the supreme court back in 1905 was is whether it was unconstitutional federally for a state to be forcing a vaccination on this guy jacobson and the decision as you probably know back then was that there was no federal constitutional right not to be subjected to a vaccination by a state and that 1905 decision which really never came up again has been used by all these governors and used by the federal courts to substantially substantiate the actions of all of these governors so we filed let's see we filed a response just here today we finished it and here's the response just newly uploaded let's see all right plaintiff's response to defendant governor justice's motion to dismiss all right so we're challenging not just the mass so-called mask mandate but also the stay-at-home order so the lockdown itself as it pertains to people like the plaintiffs you know the small restaurants that have been hit the hardest so our governor issued on march 16th mind you the stay-at-home order executive order 920 ordering west virginia residents to stay home for non-essential business businesses and operations to cease operations for essential businesses to continue operations and then they got to further dictate and did dictate which businesses were essential under the order and eventually that turned into what we have now is just the governor maintains a website where he can say all right these are the rules if you're a restaurant these are the rules if you're a hair salon these are the rules if you're a retail outlet whatever they've got rules for everybody and this is all the source for it is just on the governor's website and then you have some law enforcement officials and then some local boards of health enforcing these things and when you ask them well where does it come from they just point you to the governor's website so then after the stay-at-home order describing who could stay open and who couldn't on july 6 2020 the governor issued the mask mandate and its first version so statewide indoor face covering and here's the thing it doesn't matter if it's an effective mask it doesn't have to be effective to to stop you know particles of a virus going into your mouth or leaving your mouth into the public space it just has to look like a mask it could be a bandana that stops nothing it could be just some sort of neck gaitor or it could be a mask that that that is more effective like an n95 mask or even a respirator but it doesn't matter the important thing is not that it works or does anything the important thing is that you comply with it so the the plaintiffs in the case bridge cafe and bistro that's in hurricane west virginia they'd follow the governor's stay-at-home order they suffered closure as a quote non-essential business and they reopened eventually when limited reopenings of restaurants were allowed by the governor as per his his website and what he called the comeback west virginia's reopening and actually things have gotten just so much you know worse things have gotten worse since the comet the numbers have gotten worse worse and worse and worse after the comeback started and so if the lockdown ever worked why haven't they done the lockdown again well the reason they haven't done the lockdown again i would speculate is that it was an absolute disaster it was an absolute disaster and it's almost like there's nothing that the government can do to control this virus except i mean what's the one thing that in common sense wise what's the one thing that you could do to stop a virus well you could you could stop it from crossing the border i mean if you're an island you just shut off your island shut off your borders that's the one thing that could be done is to stop the borders but you know we didn't do that and i don't know that a state governor could constitutionally do that and they couldn't constitutionally do that under the federal constitution but that's i mean that's the one thing you could do otherwise it's going to run its course as it's as it's done and you can say that that's that's bad science but that the science is what's happened the fact is is it it's spread it's continuing to spread and it doesn't the same that that any of these governors have been able to to force it out of their states and you can compare florida which has no restrictions in place and you can compare new york which has just draconian restrictions and florida has better numbers and there were that was in them that was in the news believe it or not a little while back all right so getting to the the facts back to jacobson that's what all these governors have been using jacobson so the funny thing was is that after we went to court on this initially and so that was on the emergency relief that we were asking for that's what was used was jacobson and that's what they brought up again but since then the supreme court or several justices have actually brought discuss jacobson and minimized its application so jacobson versus massachusetts again 1905 that's really what's been cited by all of these courts around the country to to support these mandate restrictions it's a relic of jurisprudence that the supreme court had long since abandoned until early 2020 when governors across the country dusted jacobson off and brought it back to life support to their lockdown measures okay a lot of people have the the opinion that um courts have grossly misread jacobson mistaking mistakenly grafting the case on the modern constitutional precedent but in reality it was pronounced long before the bill of rights were incorporated against the states or the court developing its own modern tiers of scrutiny like rational basis scrutiny or strict scrutiny and has no no relevance even during a pandemic but here's the important thing in my opinion is that jacobson actually declares that even when states are exercising police powers as the 1905 jacobson court called them in an emergency the states are still limited by constitutional rights and when have they acknowledged that they haven't acknowledged that at all their position has been and our governor's position continues to be that there are no there's no limitation there are no constitutional rights to executive emergency actions so long as so long as the danger is real enough and there's this safety threat they can take any action so long as they can tie it to an attempt to fight that danger whether it's a pandemic or or whatever so jacobson gives broad latitude to the public health officials all right who's calling me at 6 30. the public health broad latitude the public health officials during a pandemic provided those broad limits are not exceeded all right it's been allowed for pretty much everything but then we had justice alito earlier this year where he said that jacob's indeference likely does not even apply where statewide measures of indefinite duration are challenged under the first amendment or other provisions that are not at issue on november 12th just recently justice alito gave a speech to the federalist society he noted that jacobson's primary holding rejected a substantive due process challenge to a local measure that targeted a problem of limited scope it did not involve sweeping restrictions imposed across the country for an extended period of time and it does not mean that whenever there's an emergency executive officials have unlimited unreviewable discretion therefore jacobson can't be read at least in the opinion of justice alito and and and on the facts of of what it holds it cannot be read to allow for the suspension of any existing constitutional rights or constitutional restrictions it just doesn't really it's just federal deference to some sort of state action in response to an emergency assuming that state action has constitutional authority in that state and that's the part they've been leaving out of all of these we recently had the case november 25th 2020 the new york case against cuomo striking down the religious restrictions in new york city or in new york yeah in new york city and joining cuomo from enforcing restrictions on religious services and his executive orders the court held in the opinion that members of this court the supreme court are not public health experts and we should respect the judgment of those with special expertise and responsibility in this area but even in a pandemic the constitution cannot be put away and forgotten okay nobody seems to have told the west virginia governor about this yet though what i thought was interesting and relevant in that in that opinion was justice gorsuch wrote a concurring opinion and he noted that during this pandemic that certain states like west virginia seem to have ignored the principle that the government is not free to disregard the constitution in a time of crisis and i quoted a lot of it and i would urge you to go in and and read that because again he he narrows and minimizes the application of jacobson and the ability of state governments to go absolutely tyrannical with their mandate restrictions in light of you know just using the case of jacobson as their authority but all of this really assumes that there's some sort of legal state action to begin with it wasn't at issue in jacobson that the state of massachusetts following the proper channels and due process of law had the constitutional authority to do under state law what they were doing that was assumed it wasn't an issue unlike that we are disputing that there is any state authority for the west virginia governor to unilaterally create new laws that require you to wear anything on your face under penalty of being arrested and thrown in jail for a year he just can't that is just on its face not supported not authorized by the west virginia state constitution and it couldn't be authorized by the west virginia legislature because they cannot authorize the violation of the state constitution and here's why just as justice gorsuch noted in regards to the federal constitution the west virginia state constitution provides that only the legislature can enact new law even in a time of war and that those protections will never be suspended west virginia constitution article 1 section 3. so while the governor can exercise emergency powers given his discretion and authority that he was delegated by the legislature he does have some emergency powers and really those should be to suspend law to suspend occupancy laws to make things easier for the people to deal with an emergency not to just create new restrictions thus while the governor can exercise some emergency powers that he was delegated he cannot act in place of the people's duly elected legislature and jacobsen does not support the actions of any state governor which are taken in violation of or an absence of state constitutional or legislative authority the fact is is as much as people want to cite jacob center as much as the governor wants to cite jacobson there's no federal constitutional source of gubernatorial emergency power there is no federal gubernatorial emergency power when federal judges are referring to state governors actions and their emergency powers that's assuming that they were delegated those powers by the constitution and the legislature in that state and maybe they were in some states but we're talking about west virginia and they were not it's not the west virginia constitution says that the governor cannot exercise the powers of the legislature period end of stop and that that will never that provision that protection of the people will never be suspended all right so jacobson talks about these state police powers deference to state police police powers and this is i pulled the actual paragraph which discusses it this is it at page 24 and 25 of the jacobson opinion here it is the authority of the state to enact this statute is to be referred to what is commonly called the police power a power which the state did not surrender when becoming a member of the union under the constitution although this court is refrained from any attempt to define the limits of that power yet it is distinct distinctly recognize the authority of a state to enact quarantine laws and quote health laws of every description indeed all laws that relate to the matters completely within its territory in which do not buy their necessary operation affect the people of other states according to the settled principles the police power of a state must be held to embrace at least such reasonable regulations here we go here we go read up somebody read this to the governor at least such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety that is directly from jacobson and really the only part of jacobson where they talk about this state police power they didn't create some new state police power all they did is say that well here's how we're going to measure direct legislative enactments by these sovereign states for the purposes of protecting public health and public safety so how how do we how do we deal with that phrase and what we're facing now that phrase says by legislative enactment what part of the governor's stay-at-home order what part of the governor's mask mandate order what part of the governor's new enhanced rescue for obstruction of justice mass mandate order was established by legislative enactment not a damn one of them not a damn one of them yes maybe they do protect the public health according to our czar and other public health bureaucrats maybe they do protect the public health but you know there's a lot of things that could be done to protect the public health if that's the only thing that matters as i've said before if the only measure of constitutionality or of what we even should do as a country is to survive we can take everybody over the age of 60 and we can just go ahead and put them in some sort of bubble or it's sort of like a jail cell if you go to some of the jails in the big cities which i did when i worked for the department of justice we would go up into some of these high-rise jails and some of the big old rust belt type cities and they had these nasty old jails that were may have been 30 stories high it was like something out of out of a batman movie and you get up in there and it's dark inside and uh and you know it it's like it hasn't been you could go in there and and come out you know 30 years later i mean it it they're just massive places and we could convert those these big old jails that really we don't we hardly use anymore because they're they're just you know they they don't provide the adequate care that the supreme court has has come down lots of cases and saying that if you have prisoners that you have to provide them you know all these different services and that's just not up to par for today's standards so we could turn these things into just survival units we can put anyone over the age of 60 in one of these units and we can make it a little more friendly we can take you know the poop off the walls and take the bars off and then put something just clear and you can be delivered delivered your food in your water through some sort of of sanitized tube and there will be no viruses getting through not even you know no microscopic particles whatsoever that are coming through these feeding tubes and they'll keep you alive now as far as whether you'll have netflix or hulu or anything like that you know we'll have to to to budget that every year and see maybe that will happen maybe maybe it can't happen but we we can keep all of these individuals alive we can we can they can survive and if that is the measure if we if the measure of government's purpose and whatever rights we have accordingly is you know a threat of danger and whether government can fix it then that's where we're headed because that's that's that's logically the the end of this road where it's headed to thanks for visiting jim the supreme court sees differently well jim uh pay attention i i just you know the last supreme court decision on this issue actually agreed with me in fact i cited it in here i'll go back to give you the citation so that you can read it yourself uh where is it it is uh south no that's a different one it is diocese roman catholic diocese of brooklyn new york versus andrew m cuomo governor of new york and that's a 2020 opinion issued in in november 25th 2020 so not even a month ago and that's where the supreme court struck down some of governor cuomo's restrictions against religious assemblies religious services and found that even though you have a pandemic you know constitutional rights protections are still in place so where was i all right so back to back to the the issues here while they're fresh in my head really we have two big ones so the the the state issue of whether or not there's a state constitutional violation doesn't apply in federal court directly so the federal courts generally aren't going to touch that and this one has already indicated that this this court wouldn't touch that issue and and sort of tap danced around it and didn't want to get to it but i would argue that it it is a part of the analysis of federal constitutional claims so what are the two federal that that we brought up here in this particular case and that was the first amendment because it was a first amendment retaliation case remember that the way this lawsuit happened is that the restaurant had posted on social media on facebook that they didn't believe in making their customers their employees wear a mask that they felt that it was important the the debate was going on people were discussing how they felt in regards to these mask mandates around the country and now we have one in west virginia and the restaurant said that you know we've we've given this deep thought we just we don't want to force anybody to do anything so we're going to comply with all the the rules that we normally comply with and then we're going to make it safe in other ways we're going to do social distancing comply with you know all the all the other things that they're making us do right now but you know we're going to draw a line with this mask mandate we don't believe in it and uh you know we'll offer takeout services if if that's what you want to do and they suffered retaliation after that by the government who you had a government official see that and then directly go and tell the news media and tell the client that they were going to comply with this mask mandate from the governor by the next day or else they're going to get shut down by the next day no notice no hearing no opportunity to be heard no appeal rights nothing and so when they had asked this this government official for you know where this regulation is and they just pointed them to the governor's website and you know these these county health boards which were really created by the by the state legislature they have the ability to pass these local regulations but they have to follow the process they have to follow the rules they have to follow due process which there's a there's notice and opportunity for comment and hearing and objection and and all that there's due process but but they didn't they didn't follow that rule which very well it may have been constitutional even state constitutional instead they just enforced the governor's mandate and there was no legislative process in regards to the governor's mandate there was no due process and that brings me to another another thing that the governor argued here um but i'll get to that so the first amendment the first amendment was since it's a first amendment case we did make the claim that that this should be protected first amendment speech the supreme court has found and the circuit courts have found that symbolic speech is protected things like you know wearing students wearing the black armbands to school to protest the vietnam war has been found to be symbolic speech which which is protected dance performances have been protected symbolic speech whereas recreational dancing has not have not been extended first amendment protections on the other hand you have the the seminal case from the supreme court on symbolic speech deals with burning of draft cards during again during the vietnam war and in that case the supreme court that's the o'brien case found that or held that the first amendment um even if that is symbolic protected speech the government's interest in maintaining and mobilizing for a war is sufficiently great to to override that that protected symbolic speech so now somewhere somewhere in that mix of different cases discussing what symbolic speech is and what it's not and when it's protected when it's not now we have because it's it's new like the coronavirus it's new it's novel now we have one of the biggest political discussions of the day which which are the mask mandates and the really the disagreements on on politics and science and everything included with a lot of this mandate tyranny and and what the proper role of government is and what the proper role is is not not to mention the efficacy of all of these things and of course that's not been discussed pre-2020 in any cases because it hadn't happened yet but it it has to be argued and it has to be debated in in the judiciary about whether or not first amendment protections apply to symbolic speech related to these mask mandates because the the the restaurant was taking us a symbolic action and refusing to enforce a mask mandate on on anyone else in the restaurant that was a symbolic speech now you can disagree with that so the first amendment was was invoked here the united states versus o'brien case the case i talked about the the destruction of the draft cards case that was from 1968 and that case basically handed down four different criteria to look at i'll put this back up this is where i'm discussing the united states versus o'brien in our response to the governor's motion but when you actually look at when you look at what the court held in o'brien because you would think all right the the this would support the governor's case that you know the criminal statute banning the destruction of draft cards was perfectly allowable according to the warren court in 1968 that didn't violate the first amendment but that was a statute that they were analyzing that was enacted by congress so when you look at the holding in the case there we go all right so the court held that we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the government okay that's factor number one you have to get through that before you get to the other factors which which are whether it furthers an important or substantial government interest if the government interest is unrelated to the suppression of free expression and if the incidental restriction on alleged first amendment freedoms is no greater than essential to the furtherance of that interest all right so on on the other factors of course they're going to be able to show through the affidavits of the the kovidzar and all that that yeah there's this great government interest out there that they they are taking actions you know that are aimed at that they're not aimed at you know suppressing free speech but here the first factor that they have the first hurdle that they have to get the past get passed we think it clear that a government regulation is sufficient sufficiently justified if it is within the constitutional power of the government so was the mask mandate an executive order what was it 5020 or 7720 whatever of governor justice's executive orders one of the you know 100 or so executive orders he issued this year is the mask mandate sufficiently just is it within quote the constitutional power of the government what is the constitutional power that it relies on well there is no federal constitutional power that jim justice was relying on if you look at his actual executive orders themselves they start out um you know pursuant to the governor's declaration of a disaster under west virginia code 15-5-6 he's allowed to control people going in and out of disaster zones basically i'm paraphrasing so that is the authority on which he relied on to issue the lockdown order the stay-at-home order the masked mandate so it's a west virginia code statute who passed that who enacted that the west virginia what can the west virginia legislature not do violate the west virginia constitution so therefore even if the west virginia legislature said all right governor we're going to allow you to pass any new law you think is is is a good idea so long as it's a time of emergency and you declare that there's a declaration of a state of emergency if that violated the constitution if that tried to convey their legislative authority to the governor where the governor now is acting both as the legislative branch and the executive branch which has been happening for 10 months that is that is being taken in absence of any con constitutional powers authorizing it that is not a constitutional power that's a statutory power and statutory power can never can never abrogate a constitutional power a state only a constitutional amendment can change the the state or the federal constitution not not a not a statute so here's the big thing that courts have been ignoring and people like the governor have been missing including his lawyers is that it's not within the constitutional power of the government if you don't get to that step you go no further on on the constitutional analysis under um you know any of these cases and that's united states versus o'brien but jacobson talked about the separation of powers but here's the point is that it can't be sufficiently justified if it's not within the constitutional power of the government so yeah it's you know it's probably it's not the strongest first amendment claim that's ever made its way through the federal judiciary but what this has going for it is that it's clearly the actions of a tyrant it's clearly the actions of a governor who's acting just because no one else has stopped them just because no one else has stopped them in fact in our first lawsuit directly before the west virginia supreme court that was their argument was well congress or the legislature can stop us if they want to they can call themselves into session with a three-fourth supermajority but they haven't done it and because they didn't stop us then that must mean that it's constitutional right no wrong that has nothing to do with it there's no constitutional analysis that just says well as long as nobody tries to stop him then it's then it's probably constitutional also on the first amendment i cited the tinker case another supreme court case from the next year 1969 that is the armband case another symbolic speech when students were wearing black armbands protesting the vietnam war and then that's a case in in favor of the first amendment the court ruled the public school officials and i think this is relevant given what's going on right now public school officials cannot censor student expression unless they can reasonably forecast that such speech would substantially disrupt school activities or invade the rights of others all right so what's going on in schools right now the the governor is is is not just our governor but all over the place i mean they are i mean that that's exactly what they're doing is is uh you know they're stopping expression of any sort by students they're not even letting them go to school i mean you one could say that they are the government the governor is substantially disrupting school activities himself one could also say that he's invading the rights of others himself all right tinker in that case here's what's interesting if you're in west virginia and you hadn't heard of this west virginia versus barnett they cite west virginia versus barnett that's a united states supreme court case from 1943 which held that under the first amendment a student in a public school could not be compelled to salute the flag so the 14th amendment has now applied to the states protects the citizens and obviously this was this was right um during world war ii protects the citizens against the state and all of its creatures and what a great quote because the government does have a lot of creatures metaphorically and literally boards of education not accepted these have of course important delicate and highly discretionary functions but none that they may not perform within the limits of the bill of rights when do we ever read stuff like that now the bill of rights mean nothing now but here these seminal cases that they still have to point to they they have language like this the government may not perform none that they may not perform within the limits of the bill of rights they're educating the young of for citizenship as reason for scrupulous protection of constitutional freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes again a great quote this one came out of west virginia so silent acts of physical expression that's what was happening in west virginia you know not wanting to salute the flag silent act of physical expression it was symbolic speech it was entitled to protection even where the authorities told the the courts that there was going to be all this harm that would ensue all this harm that would ensue from a student doing this in fact the school authorities said that they had fear from disturbances of the students wearing armbands but the court found that undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression any departure from absolute regimentation may cause trouble any variation from the majority's opinion may inspire fear any words spoken in class in the lunchroom or on the campus that deviates from the views of another person may start an argument or cause a disturbance but our constitution says that we must take this risk citing the terminillo case and our history says that it's this sort of hazardous freedom this kind of openness that is the basis of our national strength and of the independence and vigor of americans who grow up and live in this relatively permissive often disputatious society so again we don't hear quotes like that anymore coming from the supreme court you don't hear the government giving us any any quotes like this we don't hear anything about the constitution constitution compelling us to take risks and about hazardous freedom and openness and and that being the basis of our national strength and vigor no now we're told that because the uk is doing it or because because uh you know france is doing it that we must also do it that we're we don't believe in science if we're not doing absolutely we can to to to protect you know the public from this virus even if it means shutting down one third of our small businesses or 50 of our of our small business restaurants the fact is is even the supreme court in past years is has acknowledged that with liberty comes comes you know safety risks and that that is part of why we're so strong as a country all right so that that's the first amendment argument the the stronger argument here is 14th amendment due process all right so the 14th amendment due process clause i mean it's a lot of different things but that's where that's where the supreme court has pulled so much of of its legislation from the bench for instance abortion where does abortion come from the right to privacy where did where in the constitution or in the bill of rights does it mention the right to an abortion or the first trimester second trimester all that it doesn't it doesn't say it anywhere in the constitution the fact is is that past supreme court justices have created that right that constitutional right using the 14th 14th amendment so 14th amendment substantive due process is new laws that aren't specific laws that aren't specifically said in the constitution but which we sort of imply that they must be there procedural due process is the right to have notice and and a hearing before the government deprives you of something life liberty and the pursuit of happiness so what do you have the right to what is your life your liberty and your pursuit of happiness what what rights do you have that's substantive due process what does the government have to do to take your life to take your property to take away your ability to pursue happiness that's procedural due process well notice and right to be heard some sort of ability to appeal it one of the big things here there's two arguments one is that believe it or not the governor has claimed the governor has claimed that there is no protected right to have a small business and operate your small business so applying to this case if you're a restaurant the government or the governor can step in and close your restaurant close your business and they can do so with no notice no hearing no right to appeal just you know so long as they have some sort of health related reason to do so that's it because there's no there's no federal right you know life liberty and property does not include being able to open the restaurant that you've spent years building invested in and that your employees your your your customers your partners your investors everybody depends on cash flow from customers coming in because you're able to open the restaurant but that is not that's not property that's not property that that's just evil profits those are profits you're not entitled to profits there's no life liberty and property doesn't include profits now that's what the governor has argued here life liberty and property does not include the ability to run your business your small business because that's that's like saying you're entitled to profit profits evil you're not entitled to profit that's the argument the governor's made here and so what i did is correct the record the supreme court has said many times and again if they want to go back to 1905 for the jacobson case the supreme court said many times that that business the right to engage in business is a federally protected right under the 14th amendment if they can if it protects abortion under under the guise of life liberty and the pursuit of happiness well it it must it just has to protect your small business from just unilateral closure by the governor an executive order it just has to but that's the argument that they've made is that there is no right to engage in business because that's just profit yeah if we if we take your business real estate then yeah we have to give you due process but if we just take take your profits then we can do that whenever we want for whatever reason we want because that's where the government that's what we do so i went and looked up the definition of the supreme court cases saying that there is a property interest in your in your business assets and your business good will so it doesn't say anything about profits so i looked up the definition to assets and the goodwill so assets property of all kinds real personal personal tangible and intangible including for certain purposes patents causes of action which means lawsuits which belong to any person including corporation or the estate of a decedent the entire property of a person association corporation or a state that's applicable or subject to the payment of his or her debts it's a pretty broad definition so the supreme court's also said that goodwill is included definition of goodwill and these are from black's law dictionary that's usually what courts use goodwill and this is a broad definition and this has got to include if they can't deprive you of your business goodwill without due process this has got to include restaurants goodwill the favor which the management of a business wins from the public let me put this up so you can follow along goodwill the favor which the management of a business wins from the public the favorable consideration shown by the purchasing public to goods or services known to emanate from a particular source the custom the custom of patriot patronage of any established trade or business the benefit or advantage of having established a business and secured its patronage by the public so if you're a restaurant you've put a lot of time and investment into the business before you ever get any profit any return i mean you've you've bought the business or at least the building you've redecorated the inside you've put in the kitchen fixtures you've you've hired staff to put in place you've repaved the parking lot i mean you have all these investments before you even open so maybe you've spent millions of dollars before you even serve the first customer so you you you then after you open you develop a clientele you got people who keep coming back and after a period of time i mean most restaurants fail right according to a lot of what i've heard but some are very successful and the ones that make it the ones that are successful they say they've been there for a year and and or two years or more they have an expectation at that point i would argue that they know that if they open a restaurant tomorrow just like they did last week in the week before that they're going to make x amount of dollars they might make more they might make less depending on maybe it depends on the weather or or you know some other factor but they have an expectation that there's going to be some amount of cash flow that comes in just based on the fact that they opened the restaurant that day and and that's how they run a restaurant as many other businesses it's a day-to-day cash flow so after a period of time you know your good will increases your your customer base increases continuing on is property instant incident to a business is sold favor vendor has won from the public and probability that all customers will continue their patronage it means every positive advantage that's been acquired by a proprietor and carrying on his business whether connected with the premises in which the business is conducted or with the name under which it is managed or with any other matter carrying it with it the benefit of the business so obviously a lot of the the goodwill stuff is is for contracts for selling your business you're buying if you're buying somebody's business you're buying the goodwill you know the in other words the the expectation that these patrons are going to continue coming because they've you know they've been going to this restaurant for the past however many years and you've looked at the books to see what you know what kind of money that's brought in and so that's part of what you're buying is this good will and this expectation that this patronage would would continue and people may have invested a lot of money into that so how do you square that definition and as applied to restaurants especially with the governor's argument argument that restaurants are powerless to complain if he wants to close them at his whim powerless because there's no 14th amendment due process right if you're a restaurant you have no expectation of profits i don't think it squares at all i don't think it squares at all in fact the us supreme court has has held several times that there is a a right to pursue or operate your business um several circuit courts have had opinions on this uh second circuit 1969 united states versus tropiano which held the right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as the property right within the protections of the fifth and fourteenth amendments some other cases small versus united states nineteen sixty four and uh there is a fourth amendment uh fourth circuit case where we are in west virginia from back in 1990 and this was uh this was went the other way but there's something to be learned from that so the phantom case said the mere denial of a business opportunity without more so just that you're denied a business opportunity without more facts such as deprivation of an existing business benefit like continued patronage i would argue or entitlement does not deprive a person of property or liberty interest so what's the point and there's more case law on that so what's the point so if the fourth if there is no 14th amendment subsidy due process right to keep your restaurant operating what does that mean that means you're not entitled to any due process the government can come in and shut you down without giving you a notice or right to to a hearing anything you the opportunity to be heard basically how they treated my client the restaurant in this case that's the argument here that's coming from the governor that's the argument that that he he can shut you down and there's nothing you can do about it nothing because you don't have a life liberty and pursuit of happiness uh life liberty and property claim and being able to open your restaurant you can invest in it you can build it but you have no right to profit so therefore i can close you down and say you can't open now for the reasons i explained i think that's wrong but what's the other argument that the governor brings forward and a lot of other people have had this argument i've explained this and i think most of the radio interviews i've done on this topic all right all right mr brian how do you explain this well you follow the seat belt laws right in the in the speed limit loss or if you're a restaurant you already have no smoking laws um you you may have other licensing or or health code regulations that you follow and if you don't follow those you know you get inspected they come and shut you down how do you square that with with your arguments here that you don't have to follow a mask mandate and to which i respond well let's look at that's a great question let's look at the differences what are the differences between those things that you brought up say the no smoking ban in restaurants or or you know the requirement that chicken in a freezer be kept at x degrees celsius whatever or else they can take action against you shut you down revoke your license whatever the case may be how do you square those two things well let's look at the no smoking ban all right so where did that come from well that came from the the local county let's just say putnam county west virginia health board voted back in 1997 or whenever it was to ban smoking on all restaurants within putnam county that then joined the other regulations that they already had duly enacted that they're going to inspect you for and if they see people smoking in there now back in 1997 or whenever that was that they enacted that they followed the requirements that the legislature set in place they had notice of this new rule that they were going to come up with and there was an opportunity to comment and be heard and attend the hearing to object and you had the opportunity to appeal it and litigate it and that in fact it was there there is a a west virginia supreme court case where a restaurant was challenging the constitutional ability the state constitutional ability of the local health department to ban smoking in their restaurant and the state supreme court said well the legislature created these boards of health and they tasked them with coming up with these rules for you know health code rules for these restaurants that would be enforced and you had the opportunity to participate in that process in other words you had due process so you had due process there was a process and there was a authority set in place by the legislature to create health rules you know there you know this is not just any law you want to create these these were for regulation of restaurants and that was found to be constitutional and let's compare that with what we have here here we didn't have the putnam county board of health doing the same thing with masks they didn't propose that we have this new rule they didn't have the uh the opportunity for comments or the opportunity to have a hearing or come in or object or comment or argue about it or even appeal it and and litigation to the state supreme court or or to appeal any closure or punitive sanction that you had that none of that was there in fact they wouldn't even give my clients anything in writing they just said well you can just check the governor's website you know which may be different today than it was yesterday we don't know that's not due process that's not due process even assuming even assuming that the legislature passed that law and it's enforced in the same way there still wasn't due process because there's no there's no notice there's no right to be heard there's no right to appeal in fact if you look at the governor's response this is just really telling no not that one bring the governor's response back up all right so here's the governor's response i think it's down at the bottom [Music] oh not that one all right here's where we're talking about assets and businesses all right all right but here is where they admit assets of a business including goodwill unquestionably her property under the 14th amendment but they say they didn't take property they took business see here business in the sense of activity of doing business or the activity of making a profit is not property in the ordinary sense so i explained the the flaw in that argument but that's their claim all right here we go the idea you know remember they called in this small business how dare you you know try to stand in the face of us stopping pearl harbor the idea that the governor could be obliged to provide a hearing to every restaurant or person affected by an executive order the face of a global pandemic is at best a misunderstanding of the law and at worst a disingenuous waste of the courts and um council's time that's their argument that that's where they leave off on really the the most important discussion there of whether the government is can close a business with no due process or whether they have to give some due process because you do have a right not to be unilaterally shut down like that that's that's their biggest response is that the mere idea of you this small business uh even bringing this up asking even obliging to ask for a hearing for every restaurant they shut down or effect because there's a global pandemic it's a best at best a misunderstanding of the law and at worst a disingenuous waste of the court's time and of counsel's time meaning the lawyers for the government so that's you know that's how much that's how much the west virginia governor cares about you small business and small family-owned restaurant west virginia that that's how much they care about you you know they can't be bothered to to be asked for even a hearing for any restaurant that they shut down pursuant to an executive order because you have no right to get a profit out of the restaurant that you created you have no right to a profit profit's not an asset and that's literally the argument that they've made here and they they won't advertise that and the news media won't report that but that's what they're seeking to enshrine as law here and as as precedent to follow again in the future is that if you're a small business you can be shut down do you think that that that would happen with walmart or lowe's no why do you think that they're so quick to jump on the bandwagon of not only enforcing what the mandates are but to to aggressively enforce it and to do more and by the way i've there was a case from walmart in the news here a month or so back that i'm going to be bringing up and i don't want to talk about it yet because i'm trying to get one thing first but stay tuned if you haven't subscribed to the to the youtube channel make sure that you subscribe and click the little bell thingy for to be updated when when i go live with updates because sometimes well actually if i do my intro that has any guns in it youtube i think that they they use the algorithm that suppresses the notifications so you won't hear them anyways mitchell mcnealy i've been smoking 10 cigarettes a day since i joined the army at 19 i took every pt test they gave me while smoking a cigarette and passed with flying colors well you know i i guess i guess mitchell they they said that you know you had the opportunity to complain back in 1997 or whenever your county outlawed smoking and and you know too bad so sad now but that's isn't that the point you know has there is there any science behind let's say any of these bureaucracies that get involved in our life my favorite one to choose here is like the west virginia board of barbers and cosmetologists have they ever done anything worth however many six figures were providing at a taxpayer money to fund that office have they ever saved one life have they ever saved anybody from some evil barber if there was an evil barber could they have stopped them with their little rules on every little thing that you know they have and their their yearly their yearly fees and all that stuff has that ever had any purpose no are there states out there that probably don't don't even have this agency and people have survived just fine you know that do you think that any of us are smart enough to be able to evaluate the risk of using a certain barber and then either assume that risk or go to the other barber down the street no we're not that smart we we have to they have to protect us from the the the evil barbers it's not it's not that we can't sue the barber anyways if they screw something up and they they slit our throat on accident it's not it's not that we can't already get justice we can't you know yeah we can file a lawsuit and uh get money damages but we really need this bureaucratic board of government employees were all deemed essential who will never have a salary reduction they'll get fantastic health care that the barbers don't get we need to really have them in place just to make sure that these barbers know the rules and so that when you walk in you know you you know that you're not just going to get the haircut that you you you want but that you're you're going to survive the process the fact is is we we could probably survive with with without 90 percent of of the bureaucracies that we waste money on right it's a pandemic let's go through what business what public jobs are essential or non-essential let's look at all these water boards and all these different things and say all right are you essential are you not essential let's bring in the two bobs so what what what is it that you say you do here so the point is is that government will always grow itself but we need to get back to freedom and i think a lot of people have seen that during this this difficult year we've forgotten how important our individual liberties are because we saw them get taken away and we we know that they can get taken away again and even worse next time and depending on who's the governor who's the president or whomever you've set this precedent for we don't know what they're going to do because there's going to be there's going to be different people in different motivations so we have to protect it all the time every time or it's never it's never going to be there for us and that's why freedom is scary because you have to deal with the scary in order to have the freedom and really that's just a facetious saying to educate your neighbor on why he needs to be okay with 80 firearm kits out there or or bump stocks or or pistol braces on ar-15s because yeah although that might subjectively scare you if we let the government ban those things or if we let our legislators ban those things we let our fellow citizens ban those things under the guise of safety then we also pre-authorize all sorts of coming attractions preview of coming attractions so that's why freedom is scary so i appreciate you for for uh for listening if you've made it this long but those are the two two issues that we have fired back immediately at the governor with on the first amendment discussion and also most importantly i think the 14th amendment due process discussion because that applies everywhere we don't need to be allowing governors to shut us down ever again to lock us down without due process of law what else comes with that and why are they fighting this again so hard what happens if we establish that we have a life liberty and property interest and being able to have our small businesses well what's the gov what's the government going to have to do next time and also last time for shutting that that property interest down with no due process when they deprive us just like when they put a highway in through your property they can do it but they got to compensate you and that's what they need to do and that's what they're trying to avoid to do they don't want to compensate us for what they've taken away except here here's 600 bucks here's 600 bucks yeah it you know we spent three million dollars on building this restaurant and and um you know three of our investors are now forced into bankruptcy but yeah thanks for the 600 bucks so thanks for watching and um i'm sure it's dinner time for me now um but make sure that you subscribe and or if you're on you're on facebook follow so so that you see and go to civilrightslawyer.com that's the website where i post all the updates and i'm going to upload these documents to the website probably tomorrow morning if you want to review them yourself so standby i'll update when on this topic when the court issues the order i'm not optimistic about it because if you watch the video following that hearing the the federal court wasn't real excited about our complaints about the the mandate tyranny unfortunately so we're going back regardless of what happens here we're going back to state court we're filing a lawsuit in state court if you want to know how you can help there was a gofundme that that that uh that did very well we're finally about to the client's about to get the money from gofundme it's been a hell of a problem so i set up a new link for the client's uh donation to the client's account and you can find it on the civil rights lawyer.com or in the description of this video is is the link to it and that will go directly around gofundme so they won't be able to judge us and decide whether or not they want to make it difficult for us so again thanks for watching and i'll see you next time [Music] you