← It Could Happen Here
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- [00:00]
Mo Meltzer Cohen
This is an iHeart podcast. There's a vile sickness in Ambas Town. You must excise it, Dig into the deep earth and cut it out from.
- [00:17]
James
Iheart podcasts and grim and Mild from Aaron Manke. This is Havoc Town, a new fiction podcast set in the Bridgewater audio universe, starring Jewel State and Ray Wise. Listen to Havoc town on the iHeartRadio app, Apple Podcast, Podcasts, or wherever you get your podcasts.
- [00:35]
Mo Meltzer Cohen
I'm Bridget Armstrong, host of the new podcast the Curse of America's Next Top Model. I've been investigating the real story behind that iconic show. I ended up having anorexia issues, bulimia issues, by talking to the models, the producers, and the people who profited from it all, we basically sold our souls and they got rich. If you were so rooting for her and saw her drowning, why don't you help her? Listen to the Curse of America's Next Top model on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. In early 1988, federal agents raced to.
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James
Track down the gang they suspect of.
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Mo Meltzer Cohen
Importing millions of dollars worth of heroin into New York from Asia.
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James
Had 30 agents ready to go with shotguns and rifles. And you naked.
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Mo Meltzer Cohen
5, 6 white people pushed me in the car. I'm going, what the hell? Basically, your stay at home moms were.
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James
Picking up these large amounts of heroin. All you gotta do is receive the package. Don't have to open it, just accept it.
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Mo Meltzer Cohen
She was very upset, crying.
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James
Once I saw the gun, I tried to take his hand and I saw the flash of light.
- [01:39]
Mo Meltzer Cohen
Listen to the Chinatown sting on the iHeartRadio app, Apple Podcasts, or anywhere you get your podcasts. Do you want to hear the secrets of psychopaths, murderers, sex offenders? In this episode, I offer tips from them. I'm Dr. Leslie, forensic psychologist. This is a podcast where I cut through the noise with real talk.
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James
When you were described to me as.
- [02:01]
Mo Meltzer Cohen
A forensic psychologist, I was like, snooze. We ended up talking for hours and I was like, this girl is my best friend. Let's talk about safety and strategies to protect yourself and your loved ones. Listen to Intentionally disturbing on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.
- [02:24]
James
Hey, everyone, it's James here. We promised that we would get you something on the changes or lack thereof, after Donald Trump's series of executive orders, orders targeting certain groups. And we reached out to a lawyer, Mo, who is a fantastic lawyer, and we asked to interview them. They said they had just done an interview with Finals Tour Radio, which is a excellent show and they suggested that I take a listen to that. I took a listen to that and I think it's a fantastic interview and I don't think there's much that we can add to it. So we're going to re air that interview in full. The one thing I would add to it is that there have been a number of cases recently where grand juries have not returned an indictment. That's relatively rare, but we are seeing that more frequently. And that just enforces everything that Mo says here, which is that at this time we still have separation of powers. And at this time the executive cannot simply make law. One still has to be prosecuted according to a statute by a district attorney or a USA attorney.
- [03:29]
Mo Meltzer Cohen
Right.
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James
The President cannot just make law in this instance pertaining to the First Amendment by executive order. That doesn't mean that there will not be harassment. And as you'll hear here, those two are distinct things. And I think Mo gives an excellent outline on how we should think about and conceive this moment in American history. So without any more of me taking your time, this is an excellent interview that bursted with Mo. I hope you'll enjoy it. And if you would like to check out Final Straw Radio, you can do so using the link that I will put below this episode. Could you please introduce yourself for the audience with any name, pronouns, location or other context that would help us understand who you are.
- [04:11]
Mo Meltzer Cohen
Good morning. I'm Maura Meltzer Cohen. Everybody calls me Mo. My pronouns are they or Mo. I'm an abolitionist, an educator and an attorney in New York. Primarily, I represent people who are arrested in the course of justice struggles and do advocacy for incarcerated people and movements.
- [04:32]
James
So we're here to talk about the recent White House statements following the assassin. I mean, I mean, following the reelection of Trump, but more recently the assassination of Charles Kirk. That Antifa is a domestic terrorist organization. Can you talk about what legally changed with the executive order of September 22nd of this year or yesterday is when we're recording this National Presidential Security Memo Number seven, titled Countering Domestic Terrorism and Organized Political Violence. Again, it came out on September 25th. What changed with. With those?
- [05:08]
Mo Meltzer Cohen
Well, before I answer that question, the first thing I want to say is nothing that I say on this program is legal advice. This is information. If you want legal advice, I vigorously encourage you to have a privileged conversation with a human attorney who is admitted to practice in your jurisdiction. As to your overall question, what changed legally is essentially nothing. I think the top level takeaway here is that these executive orders are frightening. They are a frightening contribution to an already dangerous political discourse. And they may very well end up being quite disruptive to left movements, including, I think, primarily centrist liberal movements. But nothing that was legal last week is illegal this week, certainly not because of those statements. And the state cannot prosecute you for things that were legal when you did them. So, yeah, I mean, I can't see the future. But as of right now, the law and the Constitution have not changed. So if this administration wants to, in any meaningful legal way, designate anyone, any group as domestic terrorists, they can change the law, which is not going to be quick or easy, or they can dispense with the law. But under the current legal regime, there is no mechanism that would make it illegal to be antifa, whatever that means, or to hold anti fascist values, or to assemble or to petition the government. And to be clear, not that doing any of those things or being any of those things are necessarily effective at creating social change right now. But my point really is they're not.
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James
Illegal just to sort of throw this back your way. So there was, when you were responding to that, it made me think of, there's a veteran who lost a bunch of his property during the Helene hurricane that is, you know, about a year ago hit this region. He was recorded like he went pretty viral, calling out and shouting down a state politician who had a, like, public meeting here in the area. Just saying there's been like total, like lack of support after the storm. And here are all the needs and you're just a lying politician. This sort of thing. The same man, right after the executive order that Trump made about burning US Flags went out and burned one across from the White House and then he got arrested for it. Like, I thought that there was a Supreme Court decision back in the 80s that said it's not actually illegal to burn a flag. So does that make his executive orders now law?
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Mo Meltzer Cohen
No. There is a Supreme Court decision. It's called Texas v. Johnson, and it is still law. And in fact, after Texas v. Johnson, Congress actually tried to make a federal statute criminalizing burning the American flag, and it was found unconstitutional. It is astonishing and illuminating that that man was arrested for burning an American flag, which is absolutely constitutionally protected conduct. I will say I'm not sure what he was actually charged with. Right. If he was charged with creating a fire hazard, I suppose that apart from the fact that it's clearly First Amendment retaliation, I suppose that you could be criminally charged with creating a fire hazard in a Public place or something like that. But no flag burning remains protected regardless of what the president or Congress says about it. It would take either an amendment to the Constitution or a very serious change in Supreme Court jurisprudence to make flag burning illegal.
- [09:23]
James
Okay. Yeah. So this is a distinction I'd love for us to get back to in a moment between, like, legality versus what, you know, the, the sort of, like, box that, that powers decide to put a thing into. Like, I know I've, I've definitely been detained not for being an annoyance to the cops, but within my legal rights. But they'll say, but your shoes untied on a Tuesday and, you know, whatever, and then like, waste my time.
- [09:52]
Mo Meltzer Cohen
Let's talk about that. And because I do want to talk with more specificity about these specific executive orders and statements and also about what legal mechanisms do that are and can be and have long been used to surveil and disrupt and target the left. But actually, before we do that, why don't we talk about sort of some of the categories that are in play here and be really clear about definitions or at least understand that there are differences between these categories. Right, because there is a difference between the law and political discourse, and there is a difference importantly between law and power. And there is certainly at least some daylight between the legal constraints on state power and the state's power to ignore those constraints. And then I think what will be significant to this discussion is there is a significant difference between antifa, which is a set of practices or beliefs that are not necessarily even all that well defined, and what this administration refers to when it uses or deploys the word antifa. And there is yet more difference between the boogeyman that is being invoked by that word and the individuals and organizations that the administration actually intends to target. There's a difference between political targeting, surveillance disruption, and prosecution. Right. Those things are all different. And there's a difference between prosecution and conviction. And there is an important difference between someone's political beliefs and associations which are and remain protected by the First Amendment and politically motivated conduct. That means illegal. So, you know, executive orders and these kinds of statements on national security are policy statements. They don't in and of themselves make things happen. They don't in and of themselves change the law. And an executive order that is inconsistent with the Constitution or existing law at least ought to be unenforceable.
- [12:11]
James
Okay, but, yeah, but recognizing that, that distinction, you know, cops are going to. Cop investigators are going to investigate, and those processes are disruptive for people whose lives they're affecting. They can affect your job prospects, they can affect your housing stability. They can affect whether or not some unhinged person decides to attack you because they've heard some conspiracy theory about you. But so it that distinction of like, well, you might get exonerated by a court after you've been held in pretrial for a year. I guess that is an important distinction, right? Because it means you're not spending, you know, an extra 30 years or 20 years or whatever behind bars with the terrorism enhancement.
- [12:56]
Mo Meltzer Cohen
Well, I mean, that is also cold comfort. I'm really not trying to be dismissive. I think it's important to recognize what these distinctions are and primarily because I want people to understand what exactly we need to be prepared for and what we need to be worried about and what tools we have and what tools are effective at resisting what's coming down the pike. And in order to do that, we need to know what's coming down the pike. We need to know who actually has power in this situation. The fact that an executive order doesn't change the law does not mean an executive order will not result in a lot more state repression or that it won't disrupt movements or even ruin lives. It doesn't mean that Trump is not going to accomplish the thing that I think he's actually trying to accomplish here in the immediate short term, which is broadcasting to his base that non state action against people identified as or perceived to be part of the despised group is desirable by this administration will be condoned by this administration. I think that is important to recognize. Saying that it doesn't change the law does not mean it isn't dangerous. I just want to be very precise about, I think, the ways in which it is likely to be dangerous and some of the ways that it might not, might not be. And again, I'm not trying to be dismissive, but state repression exists all the time. State repression against leftists and anarchists in particular has been ongoing the whole time. This is not a Trump thing. And in fact, I think it's important to note that the executive who's probably most responsible for having laid this groundwork is Biden, who set forth a policy strategy that focused on funding the federal targeting of what at that point he was calling political extremists, which was a label that was being applied to groups on the left as well as neo Nazis and alt right groups. So this administration has already been engaged. And not just this administration. Right. We have centuries at this point of targeted disruption of left movements. The way that it's Currently being rationalized is a little bit different. The way that it's being broadcast, normalized is a little bit different. But it's. I will say I don't think this is actually anything all that new or different. And the difference in how dangerous it is is one of scale, maybe, rather than it's. It's a difference in scope rather than nature, I think.
- [15:33]
James
Yeah, I think that's an important distinction. I think that, like, sometimes people in the center and even sometimes people on the left will look at, in particular things that Trump administrations do because they are obfuscatory, they're, like, confusing and they're bombastic. And there's a part of us that, that will say, like, no, but that's, that's not what's actually happening. That's not what actually was the motivation for that person or like, that person voted, you know, Republican in the last election, whatever. And so I think that that distinction that you're making of, you know, this. This may not. This may be like an approach to motivate the base. It may prove not to be legally, like, standing, but in. That doesn't mean that it doesn't have an impact on people.
- [16:17]
Mo Meltzer Cohen
Yeah.
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James
And what we should be looking for out of this is a projection of not only like a call, call to action or red meat for the base or whatever, but also like a clear proposition of that's meant to chill us and chill civil society, that these are the intentions moving forward, this is the narrative, and this is the story that they're going to be going with.
- [16:40]
Mo Meltzer Cohen
Right, Absolutely. And I think it is important to point out right now we're seeing a lot of people pointing out the hypocrisy and the sort of the fact that these rationales are really untethered from factual reality. And I suppose that's true and important to note, but pointing out the hypocrisy is not going to be particularly useful. I mean, I think it's part of the political point. Right. Manipulating the facts, making narrative claims that are totally unsupportable and muddying the waters in this really fundamental way is part of the project.
- [17:20]
James
There was a. A German jurist, I guess, who became the highest jurist during the Nazi regime in Germany, but continued writing theory, like, was writing it before as a member of the conservative revolution, as they called it. And then afterwards, he survived the war and continued living in Germany, writing Carl Schmidt, who talks a lot about, like, the limits of liberal approaches towards legality and liberal governance, with a belief that, like, it makes sense to push it to its limits and beyond, break it and recognize that governance is about the imposition of power and the sheltering of those who are under the control or in the protected community of the state, with a consideration of war through the state's power against internal enemies as well as external enemies. And this is the devil's bargain that we make. It's like Hobbes on steroids. And it feels like a lot of the stuff that the Heritage foundation and Project 2025 has been pushing was that they have this. I know that there are some theocrats in that movement. There's the unitary executive theory that a lot of them have been pushing. And they'll play with this idea like the Trump administration will play with this identity of the king, King Trump or whatever the Don, as it were, like, making these executive decisions and being unbeholden to anything else. And they've actually been like, you know, saying to courts, you can't stop us from deporting these people to an unsafe third country. Whatever. Stop us. I wonder if, like, I wonder if you have any comments on this, if I'm coming out of left field or what.
- [19:01]
Mo Meltzer Cohen
Well, look, I'll say this for Carl Schmidt, as opposed to the Heritage foundation, he was at least intellectually honest. Yeah. I think that we are in this moment where they're trying to normalize what Schmidt would have called a state of exception, where there's sort of unbridled executive power and the sort of suspension of any constraints on state power. Right. And it's funny because I've been in conversations over the last months where I'm talking with a bunch of my friends, none of whom are particularly enamored of the current legal regime, and we're talking about how dangerous it is that the administration is dispensing with the rule of law. You know, and it's sort of amusing for a bunch of anarchists to be like, oh, no, the rule of law is collapsing. But when I'm talking about the rule of law in this way, I'm really talking about constraints on state power, and those are what's collapsing. And that's exactly what Schmidt envisioned and argued for, frankly. And I do think we're seeing that. I think one of the things that I noticed in some of these EOs, especially the couple of statements from the last few days, is he keeps talking about things like love of God and anti Christian sentiment, which is. I mean, this is entirely incompatible with the First Amendment, which provides that no state shall establish a religion. Right. I mean, we really are outside the contours of recognized, you know, legal norms, constitutional norms. And I think a lot of this stuff is functioning and is meant to normalize this kind of discourse and to inject it not only into the exercise of government power, but to normalize it in terms of what people understand to be legitimate legal discourse. Time for a sofa upgrade? Visit washablesofas.com and discover Annabe where designer style meets budget friendly prices. With sofas starting at $699, Annabe brings you the ultimate in furniture innovation with a modular design that allows you to rearrange your space effortlessly. Perfect. Perfect for both small and large spaces. Anibe is the only machine washable sofa inside and out. Say goodbye to stains and messes with liquid and stain resistant fabrics that make cleaning easy. Liquid simply slides right off. Designed for custom comfort, our high resilience foam lets you choose between a sink in feel or a supportive memory foam blend. Plus our pet friendly stain resistant fabrics ensure your sofa stays beautiful for years. Don't compromise quality for price. Visit washablesofas.com to upgrade your living space today with no risk returns and a 30 day money back guarantee. Get up to 60% off plus free shipping and free returns. Shop now@washablesofas.com Authors are subject to change and certain restrictions may apply. There's a vile sickness in Abbas town. You must excise it, dig into the deep earth and cut it out.
- [22:08]
James
The village is ravaged.
- [22:10]
Mo Meltzer Cohen
Entire families have been consumed. You know how waking up from a dream a familiar place can look completely alien. Get back everyone.
- [22:20]
James
He's got knacks.
- [22:21]
Mo Meltzer Cohen
And if you see the devil walking around inside of another man, you must cut out the very heart of him, burn his body and scatter the ashes in the furthest corner of the this town.
- [22:33]
James
As a warning from iHeart podcasts and grim and mild from Aaron Manke, this is Havoc Town, a new fiction podcast set in the Bridgewater Audio universe, starring Jewel State and Ray Wise. Listen to Havoc town on the iHeartRadio app, Apple Podcasts or wherever you get your podcasts. The Devil Walks in abbostown.
- [23:00]
Mo Meltzer Cohen
In early 1988, federal agents raced to track down the gang they suspect of importing millions of dollars worth of heroin into New York from Asia. We had 30 agents ready to go.
- [23:11]
James
With shotguns and rifles and you name.
- [23:14]
Mo Meltzer Cohen
It, but what they find is not what they expected. Basically your stay at home moms were.
- [23:21]
James
Picking up these large amounts of heroin.
- [23:23]
Mo Meltzer Cohen
They go, is this your daughter?
- [23:24]
James
I said yes.
- [23:25]
Mo Meltzer Cohen
They go, oh, you may not see her for like 25 years caught between a federal investigation and the violent gang who recruited them, the women must decide who they're willing to protect and who they dare to betray. Once I saw the gun, I tried.
- [23:45]
James
To take his hand and I saw the flash of light.
- [23:48]
Mo Meltzer Cohen
Listen to the Chinatown sting on the iHeartRadio app, Apple Podcasts or anywhere you get your podcasts.
- [23:58]
James
Hey, this is Matt Jones and I'm Drew Franklin and this is NFL Cover Zero. We're just here to try to give.
- [24:05]
Mo Meltzer Cohen
You an NFL perspective a little bit different. Did you see the Colts pretzel? That was my other big takeaway from that game. What was that?
- [24:12]
James
Oh, my. We think NFL coverage should be informative and, and entertaining. And twice a week that is exactly what you're going to get. Listen NFL Cover Zero with Matt Jones and Drew Franklin on the iHeartRadio app, Apple Podcasts or wherever you get your podcast. Toyota the official automotive partner of the NFL. Visit toyota.com NFL now to learn more. Kind of shifting a bit like, let's see, get into some of the implications of this. So if it hasn't changed law, but we recognize that practices and culture are being shifted. I've heard of a bunch of people getting fired and getting doxing attention. There's a website now, I think called like who Killed Charlie Kirk? Or the People who Killed Charlie Kirk or something like that. Maybe an app. It's kind of like the post Charlie Kirk assassination version of Canary Mission. Does this mean that police are coming after people for sharing memes? Is that happening? Is that what's happening in these cases?
- [25:13]
Mo Meltzer Cohen
I mean, police have always been coming after people for sharing memes. I would say. I get calls at least every month from people who have been visited by federal agents because they said something on the Internet that was upsetting to somebody else and then they reported it and the FBI was just following up on a tip. But that said, this doesn't vitiate the First Amendment. Let me say that in human language.
- [25:41]
James
Thank you.
- [25:43]
Mo Meltzer Cohen
This does not undermine the First Amendment. The First Amendment still exists and all of the legal framework around having the right to say things as long as those things are not true threats, that still exists. So it is not unusual for people to be targeted or monitored or visited by law enforcement. But typically that stuff doesn't actually really go anywhere. I am concerned about people being subject to doxing and having negative social consequences and fallout from this kind of stuff. And it certainly is, you know, can be life ruining. I again, I don't, I don't mean to trivialize the effects of this kind of retaliation, social retaliation. But it is not the same thing as a criminal prosecution or a criminal conviction. It's. It's a different set of mechanisms. Now, one thing that I do think is interesting is that these EOs and the statement that came out on the 22nd and yesterday particularly identify certain modes of that. That kind of social conduct that you're talking about, like doxing, swatting. Right. Which is making a false report of, like, an ongoing violent crime, so that a SWAT team shows up and raids.
- [27:03]
James
Somebody'S home, which can be deadly.
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Mo Meltzer Cohen
Right. This is very dangerous. And interestingly to me, anyway, there are these specific behaviors that are identified and condemned in those statements. And those specific behaviors are largely tools of the right. People on the left are not notably interested in sending law enforcement to someone's house. So there is a perverse way in which this may end up being sort of protective, I suppose, because I think it would be very difficult for the government to go after the people who are exposing ICE agents, which, again, is not illegal right now. Even if it were to become illegal. It isn't right now. And it would be very hard for them to go after those folks and not also go after the folks who are running that silly website about people who say something mean about Charlie Kirk.
- [27:57]
James
Yeah, I mean, I guess to me, and this is the speculation outside of, like, legal advice or any. Not that we're giving legal advice, but outside of, like, the legal framework, definitely.
- [28:05]
Mo Meltzer Cohen
Not giving legal advice.
- [28:06]
James
I mean, it kind of points to a thing that already. This. This hypocrisy or this difference between what it's called when one party does it versus what it's called when another party does it, like outside of the fact that the government gets to do what it wants to until the government stops itself from doing a thing. I mean, it feels like it's a part of the creation of a differentiated subjectivity. Like there's the subject of the state that falls under the values that are being attacked. Christianity, whiteness, heteronormativity, these, like, patriotism in these certain ways versus the people that are doing these same things but are corrupt, are dirtied, are outside or internal enemies. Are Soros funded however we want to. Like. Yeah, but. Yeah, I guess that's not. I mean, that's. This is nothing new. It's just an amplification of that same. Right.
- [29:01]
Mo Meltzer Cohen
Yeah, very much. And you know what is changing a little bit, although all of these threads have been present, is that this administration is rationalizing this particular kind of targeting with respect to. In Particular Palestine solidarity movements, gender nonconforming people and what they're calling antifa. So you know, we're seeing, we've been seeing congressional investigations, the allocation of funds to federal law enforcement, purging not just individuals but whole agencies that the administration feels are insufficiently aligned with its priority, replacing federal law enforcement. That and I mean ranging from FBI agents on the ground to DOJ with people who will enthusiastically and blindly pursue these priorities and using a lot of resources to target the nonprofit tax status and funding of groups identified as being aligned with any of the disfavored movements. And one of the things that they're doing is kind of it's this real spaghetti, you know, throwing everything at it. And it's very overwhelming. It's overwhelming for movement infrastructure, it's overwhelming for legal, for people on the ground. And it's all happening at once. And I think it's all being, it's mutually compounding, it's mutually reinforcing, it's demoralizing. And in particular the stuff that's happening with immigration is so devastating. And because immigration is so wholly under the control of the executive, that is an area where he's able to sort of make a policy and make it so and have it be carried out by fiat. And he has made his own private army with ice. And I think one of the effects that I interested in my observation that that has had is that people see that happening and assume that he has that level of control over everything else. And I do want to point out like again, it's absolutely devastating to see what's happening in the immigration space. But in fact he does not have that level of control over the rest of government and over non immigration law. And I think that's really important to remember.
- [31:26]
James
Yeah, it seems about pushing boundaries and experimenting. There's a lot of people that have talked and not to get too far down the road with this, but like with the like attempt to normalize. Sending National Guard or sending active military to different states or federalizing National Guards to be present from different states in these places. Yeah, almost like if it's constant and like overlapping enough, then eventually just military being on the streets, generally rousting houseless folks is going to be a normalized thing.
- [31:59]
Mo Meltzer Cohen
Man, I'm in New York, there's military people in all our subways. Like that got very normalized post 911 in certain places. And so you know, again, this is not to say that it's okay, but it isn't new.
- [32:14]
James
So to get back to antifa.
- [32:16]
Mo Meltzer Cohen
Sure.
- [32:17]
James
Antifa Antifa. How is the administration identifying antifa and the left, and what are they actually dismantling and attacking? I'm thinking, like, heard a lot of talk about bail funds or like lgbtqia youth advocacy organizations, secularist groups, like, yeah, what's going on?
- [32:38]
Mo Meltzer Cohen
Yeah, well, this is. This is where things get really fun. Most of the groups that are actually being targeted are not remotely related to antifa. George Soros is not antifa. The various legal defense funds are not antifa. Antifa is the rationale, but not the reality. So one of the interesting issues here is that a significant group of the people who really need to be very worried are people who work in the nonprofit sector in extremely normal and liberal community advocacy organizations and NGOs, and these are people who have nothing whatsoever to do with antifa by any stretch of the imagination, who are being attacked, whose funding is being attacked, who are primarily, I would say, at risk, not because they have engaged in anything approaching unlawful conduct. And frankly, I think the biggest risk for many of those people is the anticipatory compliance of their funders. We have seen a really similar thing happen with universities where universities have been targeted by the state, by the federal government, and have been accused in particular of antisemitism. And frankly, I think it would be the work of an afternoon for general counsel at any of these universities to point out that, in fact, there is a legally established difference between anti Semitism and anti Zionism, that criticism of the nation state of Israel is in fact, entirely legally distinct from criticism of or threats against Jewish people. And if any of these universities actually bothered to challenge these allegations, I think that they would win in court on the law. And what we're seeing instead is the universities declining to challenge these allegations, settling out of court, paying large amounts of money to the allegedly aggrieved parties, and capitulating in ways that are unnecessary, unwarranted, not legally justified, irrational, and seed more ground. Not just more ground than is legally called for, but more ground than is even being asked for in these cases. And so this is, to me, one of the great dangers of normalizing these discourses is that these large institutions are engaged in acts of self preservation that actually undermine civil society, when even a small amount of courage would go a very long way to preserving it.
- [35:30]
James
I think we also sort of saw this in the early days of the administration with legal firms that had brought challenges to the administration in the past, backing down or refusing to, offering their fealty or whatever to the administration. And we're seeing it now. Also with some of these large media corporations silencing some of their pundits or whatever, or in some cases, I mean, it's clearly quid pro quo because they've got, you know, a merger that's being discussed by the FCC at the moment.
- [36:02]
Mo Meltzer Cohen
Well, what we've seen, though, we have seen a lot of that sort of craven capitulation. But what we've also seen is when we fight, we win. Now, I'm not trying to be a Pollyanna about this. What I'm trying to say is the demands that are being made by this particular administration are actually so far beyond the pale that based on our legal regime as it currently is, when we fight, we win. And so I think it is very worth reminding people that however imperfect the law is, the current state of the law forbids much of what this administration is doing, and it is actually worth standing up to it. There are other groups of people similarly who are not related to antifa. And one of those groups is posters, like, including boomers, who are on Facebook and Twitter making jokes about how the right. It's so hypocritical and those people are getting targeted. And I would just gently remind everyone that the First Amendment does still exist and that the solution to repression is not self censorship, but courage. And also, as I have said many times, including to you on this program, discretion is the better part of valor. And not everything needs to be said on the Internet. So maybe think about it before you post something that you would not like to hear read back to you by a humorless prosecutor. Then we have these other groups that are engaged in exposing law enforcement, which I referred to a minute ago. And I think the groups that are exposing ICE are definitely going to be targeted, have already been targeted for that activity, but it sort of remains to be seen how that can happen while also protecting Canary mission. Right. Then we have groups that are being perceived as or identified as Antifa, who are the people who are like, doing food not bombs and community gardening and cooperative bookstores and prisoner letter writing, all of which are extremely First Amendment protected activities, and all of which are not only likely to be highly surveilled, are already highly surveilled. And this is the group of people who I think are actually probably most used to this and best prepared for it, and also might be really hard to prosecute effectively because they're not doing crime. And you know, like the NGOs that we were talking about, the biggest point of exposure for all of these groups is likely to be financial. We can certainly Anticipate that the state is highly interested in looking at all of our bank records. To the extent that our bank records exist with all the money we have, right? Like we're all handing around the same stack of 20 singles to, to each other. But hey, you know, wire fraud, what I can say is that, you know, something like a bail fund and, you know, community support funds do need to be very cautious. That has already always been the case. And this is a really good time to hire a CPA to go over your books and to make sure that you have kept really meticulous records to make sure that if you have raised money for something, you have only used it for the thing that you said it was going to be used for. And this is once again something that largely is a feature of far right organizing. Right. I don't know if you remember, but Steve Bannon was actually prosecuted for wire fraud because he was raising money to do something.
- [39:32]
James
Build the wall.
- [39:33]
Mo Meltzer Cohen
Build the wall. He was raising money to build the wall, but not using it for that purpose, which is wire fraud. Right. So if you run a bail fund, presumably you already know that you have to be very careful about how you raise that money and how you monitor and track and use that money. So most of the people, I would say the overwhelming majority of people who are sort of going to be subject to this kind of monitoring, A, have already been subject to it and B, haven't actually done anything unlawful. And you know, that doesn't mean this won't be disruptive. It just means, look, I'm not naive enough to say that your innocence will protect you, but it's a good start. And then we have folks who maybe actually do engage in unlawful conduct or revolutionary action or people about whom that claim could somewhat credibly be made. And that's actually just a different, a different group, right? And those things were illegal last week and they're illegal now. And they're not more illegal because they're politically motivated. Right. Although, you know, there are terrorism enhancements and sentencing enhancements and things like that. The fact is, like, you know, it can't be more illegal to spray paint Free Gaza on the side of a building than it is to spray paint. I love Trump on the side of a building. Right.
- [40:47]
James
I mean, what. Whether or not this like, pans out in the courts, right, is one thing. But I know that, like, say for the library case that happened here where people were arrested because some people were filming in this like, Palestine related workshop in a public library and they were asked to stop filming. And then a scuffle broke out and a phone got knocked to the ground and people got apparently dragged outside. Again, I was not there for this. But like now the people are facing like people who are in the crowd who are not. The people who were filming are facing charges of ethnic intimidation. That's a very specific case in a different jurisdiction from where you are practicing law. But it's not just about like what's being charged against them isn't about assaults, it per se, it's. It's this enhanced, politically driven statement based on the rhetoric that's, you know, based on the politics.
- [41:40]
Mo Meltzer Cohen
Right, Absolutely. And I'm glad you pointed that out because I certainly do not want to suggest that politically motivated prosecutions don't happen. They absolutely happen. These recent statements don't change the way in which they happen. Right. And there are ways of targeting people for prosecution based on their politics. And those have, those are again, not new. I think the point that I'm trying to make is that I don't think this has changed substantively. Yeah, like the fact that the President said Antifa is a domestic terrorist organization just doesn't really change the legal landscape. This has been the targeted surveillance of the left. Whether you call it Antifa, whether it's the Green Scare, whether it's the Black Liberation army, this has been a priority for decades of administrations. More and more legislation has been developed to criminalize garden variety protest conduct. We saw that a lot around Standing Rock and blm. More and more resources are allocated to testing creative strategies for monitoring and criminalizing political activities. You know, again, state repression and the tools that are used in the service of state repression are just not new. And the fact that he put out these statements is maybe a good reminder that we should be circumspect and aware of repression and prepared to bear up under it. Life's messy. We're talking spills, stains, pets and kids. But with Anabe, you never have to stress about messes again. At washablesofas.com, discover annabe sofas, the only fully machine washable sofas inside and out. Starting at just $699. Made with liquid and stain resistant fabrics. That means fewer stains and more peace of mind. Designed for real life. Our sofas feature changeable fabric covers allowing you to reflect refresher style anytime need flexibility. Our modular design lets you rearrange your sofa effortlessly. Perfect for cozy apartments or spacious homes. Plus they're earth friendly and built to last. That's why over 200,000 happy customers have made the switch. Upgrade your space today. Visit washablesofas.com now and bring home a sofa made for life. That's washablesofas.com offers are subject to change and certain restrictions may apply. There's a vile sickness in Ambus Town. You must excise it. Dig into the deep earth and cut it out.
- [44:26]
James
The village is ravaged. Entire families have been consumed.
- [44:30]
Mo Meltzer Cohen
You know how waking up from a dream, a familiar place can look completely alien? Alien. Get back, everyone. And if you see the devil walking around inside of another man, you must cut out the very heart of him, burn his body, and scatter the ashes in the furthest corner of this town.
- [44:51]
James
As a warning from iHeart podcasts and grim and mild from Aaron Manke, this is Havoc Town, a new fiction podcast set in the Bridgewater audio universe, starring Jewel State and Ray Wise. Listen to Havoc town on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. The Devil walks in abbostown.
- [45:18]
Mo Meltzer Cohen
In early 1988, federal agents raced to.
- [45:21]
James
Track down the gang they suspect of.
- [45:23]
Mo Meltzer Cohen
Importing millions of dollars worth of heroin into New York from Asia. We had 30 agents run to go.
- [45:29]
James
With shotguns and rifles and you name it.
- [45:33]
Mo Meltzer Cohen
But what they find is not what they expected. Basically, your stay at home moms were.
- [45:39]
James
Picking up these large amounts of heroin.
- [45:41]
Mo Meltzer Cohen
They go, is this your daughter?
- [45:42]
James
I said, yes.
- [45:43]
Mo Meltzer Cohen
They go, oh, you may not see her for like 25 years. Caught between a federal investigation and the violent gang who recruited them, the women must decide who they're willing to protect and who they dare to betray.
- [46:02]
James
Once I saw the gun, I tried to take his hand and I saw the flash of light.
- [46:06]
Mo Meltzer Cohen
Listen to the Chinatown sting on the iHeartRadio app, Apple Podcasts, or anywhere you get your podcasts.
- [46:16]
James
Hey, this is Matt Jones and I'm Drew Franklin, and this is NFL Cover Zero. We're just here to try to give.
- [46:23]
Mo Meltzer Cohen
You an NFL perspective a little bit different.
- [46:26]
James
Did you see the Colts pretzel?
- [46:27]
Mo Meltzer Cohen
That was my other big takeaway from that game. What was that?
- [46:30]
James
Oh, my. We think NFL coverage should be informative and entertaining. And twice a week, that is exactly what you're gonna get. Listen NFL Cover Zero with Matt Jones and Drew Franklin on the iHeartRadio app, Apple Podcasts, or wherever you get your podcast. Toyota, the official automotive partner of the NFL. Visit toyota.com NFL now to learn more. So is the Ricoh 61 Atlanta case a model for what we see moving forward at a federal level in relation to these domestic terrorism charges? Conspiracy Racketeering, the focus on bail funds and other abolitionist infrastructure or civil liberties organizations, like section h of that September 25 statement refers to the attorney General pursuing, quote, politically motivated terrorist acts such as organizing doxing campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence and civil disorder. Like, I know those are all things that, you know, they've already got charges attached to them. It's just these are now being framed within the framework of being terrorist acts. But you know, you said like, these practices of attacking adjacent, like supportive movement and civil society organs is not, it's not in and of itself new. But it seems like the framing, especially with the Atlanta case where the prosecutors brought up at the beginning, like they gave a Merriam Webster dictionary definition of anarchism and then said, all these people fall under this umbrella because they all have this ideology, therefore they are a conspiracy. Is that what the administration is trying to do and is that different from what they've already done at a federal level?
- [48:17]
Mo Meltzer Cohen
So first of all, I do think that that's very likely that they will try. I think this is signaling a real interest in that. I don't think that's particularly new, but I think that it's clearly being prioritized. So let's talk about rico. Rico, let's talk about RICO briefly. RICO is the Racketeer Influenced and Corrupt Organizations act. And it was enacted In, I think 1970 to go after the Mo Mob, right? It was to go after crime families, but it's been used against so called gangs and in other politically motivated prosecutions for a long time. And so RICO is really used to kind of criminalize whole communities, but it requires that an actual crime has happened. Right? Association or ideology in itself is not sufficient. So we. It requires an actual crime has happened and it also requires an enterprise like a coordinated enterprise. And because the First Amendment protects association and a large diffuse group of people sharing values is not an enterprise. You know, I'm not sure it's not a straightforward path to say we want to use RICO in a politically motivated way and to actually be able to capture this group under a net. Right? That's like, you know, saying we want to go after antifa is like saying we want to go after people who like cats, right? There are people who like cats, but they certainly aren't coordinating together. I suppose that there are actually people who would say, like, yes, I identify strongly with this set of values, but it's not a membership organization and it would, I think, be very difficult to mount a prosecution or to mount a successful prosecution on the basis of what are clearly First Amendment protected beliefs and associations. And there's pretty good law on this point actually. And it comes from an effort to prosecute a bunch of anti abortion protesters under rico. And the court said you can't do that. The fact that there's a large group of people who happen to believe the same things does not mean that they are an enterprise. So look, don't get me wrong, again, this would be hugely disruptive, but it would be very difficult to sustain an effective prosecution or obtain a conviction if there was one competent investigator, prosecutor, judge or jury member anywhere along the way. But yes, hugely disruptive if, if they manage to do it. I would like to note something about the Stop Cop City RICO that's important. So first of all, yay. All those, all those charges, those ricos were dismissed for legal reasons of being utter bull. And I know that, you know, there's some concern that that will be appealed, but I, I think it is worth noting and celebrating that when we fight, we win. But sort of more to the point, in this context, I do want to note that Georgia's RICO statute is different from the federal RICO statute and it's actually even worse than the federal RICO statute and it still couldn't be effectively used in this way. And also federal RICO has often failed. Right? Efforts to use federal RICO in a politically motivated way have also failed. So if you look up like the Ohio 7, which was a fairly early effort to bring a politically motivated RICO that did not go great for the government. So yeah, I think that's important to note about rico.
- [51:52]
James
So you mentioned this like FBI designation earlier. It had been for a while I think under, I thought it, this came up under Obama, but maybe it came up under, under Biden for the prosecution of January 6. But anti government extremists, which included militia movements and also anarchists, it's been shifted to far left extremist in the verbiage of, of the DOJ and who they're pursuing. Anti law enforcement and anti conservative attacks have been framed as, you know, of concerted effort by far, far left extremists in the media and also like by these institutions as they're, you know, moving forward before they actually make any arrests or whatever and through their prosecution, sometimes using terms like, you know, antifa or trantifa or whatever sort of motivations they're giving. I also wonder if you could say a thing specifically about this sort of framing that is being given. Again that is like, like I was thinking about this before more recent mass shooting events that have happened or before the hullabaloo around Charlie Kirk's assassination and, and the shooter, the alleged shooter's relationships to other people. That there seems to be this concerted effort around clinically framing and politically flaming framing transness as a mental health issue, but also as a political extension of woke gender ideology that's coming for your children. And it's like, it's, it's interesting because like in order for people in a lot of cases in the US to be able to gain access to medical care that they desire or need around maybe gender dysphoria or some other, some other experience, they often have to use these like clinical terms for what they are experiencing and why they need medication for it and not faulting people for making that approach because you need the medicine that you need. But now this is being turned around and reframed as therefore if people need this stuff and they're making this argument, therefore they have some sort of mental deficiency or some sort of issue which is being used in order to challenge people's right to keep and bear arms under the second Amendment or saying that people are like, because of their transness, being motivated towards this attacks. Like I don't know if you have anything to. Again, not exactly like, not exactly a legal issue, but I don't know if you have any observations.
- [54:21]
Mo Meltzer Cohen
Well, I mean, I guess when it comes down to it, just to be very clear, the DSM makes very clear that or that being trans is not a mental illness, that gender dysphoria is distress caused by discrepancy between the assigned gender and your actual gender, which would exist if any CIS person were being treated as a gender that they didn't identify with. Right. That would be a distress that would arise for any person. I think that there are real problems with the sort of clinicization or medicalization of gender affirming care, but I do want to be very clear that that does not have to and does not formally or officially include pathologizing trans identity. That's something that's being imputed and being imposed, but it has no basis in clinical practice. Not that that necessarily matters to the government, but I do think it's important to point that out. I think given that previous efforts to restrict gun ownership on the basis of previously diagnosed mental illness have not been super successful. I, I don't know that this one will be either. But again, this is an issue of power and less an issue of law or logical coherent legal philosophy.
- [55:49]
James
So this term has been coming up A lot of, you know, with Trump or the administration talking about domestic terrorists, there's been a lot of pushback from the legal community or from civil libertarians saying, what the hell are you talking about? Can you talk about, like, what it means to be called a domestic terrorist? What. What changes that makes in, like, how the law approaches you or how you can be convicted?
- [56:13]
Mo Meltzer Cohen
Yeah, gladly. So at this point, what it means to be called a domestic terrorist is actually nothing. There is no legal procedure for designating a domestic terrorist group or for designating a domestic group a terrorist organization. And given the current law on the matter, even with this Supreme Court, I think it would be very, very difficult to change the law in the way it would have to be changed in order to make that designation. There are ways to freeze the assets of a domestic group. There are ways to posit or show a connection between a domestic group and a designated foreign terrorist organization, which is a real thing that has legal effect. There is a way to financially designate a group or an individual as, you know, having this kind of relationship to a foreign terrorist organization or an fto. So. But there's no legal mechanism for designating a domestic terrorist group. That's not a thing. So this is a place where the government could simply dispense with the law. But I do not think this is a place where the government can use the law to create a category of domestic terrorist organizations. And just to, like, explain FTOs a little bit, there is a category of organization that are designated by the State Department as, quote, foreign terrorist organizations. FTOs are designated by the State Department, and they are listed on the State Department website. Right. It's not a secret who they are. You're not going to suddenly find out that, you know, you gave money that to, I don't know, the Greek equivalent of the aclu, and now it's, you know, it turns out it's an fto. There are certainly cases where the government has successfully claimed that a connection between a domestic group and an FTO exists, even in the face of overwhelming evidence to the contrary. And if you have a connection to an fto, you can prosecuted for what's called material support for terrorism. And it's a very serious charge. It's a very frightening charge. And it does criminalize a lot of things that most people understand to be protected by the First Amendment. Right. It criminalizes providing things like medical care to certain groups. It criminalizes providing education or legal support to certain groups that are designated foreign terrorist organizations. And frankly, this is the idea that underpins material Support for terrorism charges is offensive to many people because it does feel very much incompatible with constitutional norms under the First Amendment. It's an important thing to be aware of, but it would be very surprising to me if the government were able to successfully make broad claims connecting antifa to foreign terrorist organizations.
- [59:24]
James
I was. When you were saying that, that had me thinking a little bit about the Holy Land five case. I was trying to remember that example. I guess, like to belabor this, can we talk about the distinction between domestic terrorist organization, which is a classification that doesn't exist, versus the charge of committing terrorism? Because people who get terrorism enhancements, at least like the. Like Marius Mason, the one example that comes to my mind. Right. Who is a member of CELL that was associated with the Earth Liberation Front, like, so that that person got over two decades in prison based on, like being convicted of crimes that existed and then getting enhancements.
- [60:07]
Mo Meltzer Cohen
Yes.
- [60:07]
James
Based on the definition that those were terrorists. Amplifying the amount of time. Right.
- [60:12]
Mo Meltzer Cohen
The difference is the difference between criminalizing conduct or defining conduct as being terroristic and criminalizing a group. The First Amendment protects freedom of belief, association and expression. And that means that however much we might be targeted for our beliefs, associations and expression, we cannot be prosecuted criminally for anything besides our conduct, our actions. And so there can be terrorist offenses and enhancements for sentencing on the basis of conduct that you are convicted of. If you engage in certain illegal acts and a judge determines that those acts were motivated by desire to do terrorism, then the penalty for engaging in those acts can be enhanced. But you cannot designate a group, a belief, or an expression as being a crime in itself unless there is conduct associated with it. Because we don't criminalize people's identities. I mean, we do criminalize people's identities, but it's.
- [61:32]
James
But we don't say it out.
- [61:34]
Mo Meltzer Cohen
Impermissible to prosecute people for having those identities.
- [61:39]
James
I guess. Of note, as I understand the terrorism enhancements that the prosecutors are pursuing in the Luigi Mangioni case have been dropped. Is a thing that I heard.
- [61:49]
Mo Meltzer Cohen
Yes.
- [61:50]
James
Which, I mean, at the same time, this is referenced in one of those documents that came out from the White House as being a terroristic act. So.
- [61:58]
Mo Meltzer Cohen
Yes.
- [61:59]
James
What do the courts know?
- [62:00]
Mo Meltzer Cohen
Okay.
- [62:00]
James
Thank you for. For making that distinction more clear. All right, so how might those of us on the left or in justice movements, as you stated it, conceive of the state's view of us? How do we rally support for our identities and positions? What are some good practices? Understanding. Like, having had this conversation, the terrain on which we're operating.
- [62:24]
Mo Meltzer Cohen
Absolutely. So I guess what I would say about best practices is understand whether you are at risk, even if you're somebody who has not traditionally been at risk, even if you're someone who has lived your whole life believing that the system works and that this particular administration is like an aberration. I would say, look, this administration is preoccupied with the funding streams for very mainstream liberal causes. And the fact that it's sort of lumping everything under the banner of antifa, you know, is probably a big surprise for some of these groups, like, you know, Suburban White Moms Against Guns or whatever. But they are very focused on things like wire fraud and money laundering and stripping nonprofits of their tax status if there's even a whisper of the possibility that those nonprofits are pursuing goals that are in any way antagonistic to state interests. So if you are in a group that has a bank account or raises money, the best practices here haven't changed. Keep very precise track of your funds. If you raise money, use it for the thing you said you were going to use it for. Have an accountant, you know, be very, very careful about your money. And again, the best practices for the rest of us also haven't changed. This is political discourse that reaffirms what we already know about targeted surveillance. And we have for a long time known how to deal with this. If you are approached by law enforcement, remember that the Fifth Amendment protects your right not to speak to them. You have no obligation to speak to law enforcement. It is a crime to lie to federal agents, and that means that it is safest not to say anything. Besides, I'm represented by counsel. Please leave your name and number and my lawyer will call you. There is truly never a compelling reason to speak to federal agents before consulting with an attorney. The NLG Anti Repression Hotline can be reached at 212-679-2811. You can call to have a free privileged conversation about your rights, risks and responsibilities and to be connected with appropriate legal resources in your area. And at the end of the day, we keep ourselves safe by refusing to submit to this fear, refusing to comply in advance, refusing to to second guess whether we actually have rights. And more importantly, we persist by being confident in the fact that no matter what, our communities are going to rally around and care for each other.
- [65:00]
James
I think that would be a great place to tie up. Thank you so much for having this conversation and for the insights that you shared and for the work that you do.
- [65:08]
Mo Meltzer Cohen
Mo, you're very welcome. It's always A pleasure. It Could Happen Here is a production of Cool Zone Media. For more podcasts from Cool Zone Media, Visit our website coolzonemedia.com or check us out on the iHeartRadio app, Apple Podcasts or wherever you listen to podcasts. You can now find sources for It Could Happen here, listed directly in episode descriptions. Thanks for listening. There's a viral sickness in Abbas Town. You must excise it, dig into the deep earth and cut it out.
- [65:44]
James
From iheart Podcasts and Grim and Mild from Aaron Manke. This is Havoc Town, a new fiction podcast set in the Bridgewater audio universe starring Jewel State and Ray Wise. Listen to Havoc town on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.
- [66:02]
Mo Meltzer Cohen
I'm Bridget Armstrong, host of the new podcast the Curse of America's Next Top Model. I've been investigating the real story behind that iconic show. I ended up having anorexia issues, bulimia issues, by talking to the models, the producers, and the people who profited from it all. We basically sold our souls and they got rich. If you were so rooting for her and saw her drowning, why don't you help her? Listen to the Curse of America's Next Top model on the iHeartRadio app, Apple Podcast, or wherever you get your podcasts. In early 1988, federal agents raced to.
- [66:38]
James
Track down the gang they suspect of.
- [66:39]
Mo Meltzer Cohen
Importing millions of dollars worth of heroin into New York from Asia. Had 30 agents ready to go with.
- [66:46]
James
Shotguns and rifles and you name it.
- [66:49]
Mo Meltzer Cohen
Five, six white people pushed me in the car. I'm going, what the hell? Basically, your stay at home moms were picking up these large amounts of heroin.
- [66:57]
James
All you gotta do is receive the package. Don't have to open it, just accept it.
- [67:01]
Mo Meltzer Cohen
She was very upset, crying.
- [67:02]
James
Once I saw the gun, I tried to take his hand and I saw the flash of light.
- [67:06]
Mo Meltzer Cohen
Listen to the Chinatown sting on the iHeartRadio app, Apple Podcasts, or anywhere you get your podcasts. Do you want to hear the secrets of psychopaths, murderers, sex offenders? In this episode, I offer tips from them. I'm Dr. Leslie, friends and psychologist. This is a podcast where I cut through the noise with real talk.
- [67:27]
James
When you were described to me as.
- [67:28]
Mo Meltzer Cohen
A forensic psychologist, I was like, snooze. We ended up talking for hours and I was like, this girl is my best friend. Let's talk about safety and strategies to protect yourself and your loved ones. Listen to Intentionally disturbing on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. This is an iHeart podcast.