Advisory Opinions - 50 Ways of No

Episode Date: August 23, 2022

David and Sarah discuss two Florida free speech cases and a very strange North Carolina one too about whether a court can strike down legislation if some of the legislators were elected from gerrymandered districts. And there's a very special guest at the end with a song to share. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Hey, you paid for it, so keep it. Try the other side. Get started at PHYS.ca. If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at PHYS.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger.

And we're going, this is going to be a legal podcast, and we're going to make it maybe a little shorter. Sarah is on vacation right now, so generously donating her podcast time while on vacation. And there are not a huge number of interesting legal developments, but there are three, and two of them involve the state of Florida and Governor Ron DeSantis. So we're going to talk about the injunction against portions of the Stop WOKE Act that Florida passed, which is the most sweeping of the quote-unquote anti-CRT laws that have been passed yet in the United States, and a portion of it was challenged and blocked by a federal district court. We're going to talk about an interesting lawsuit in Florida based on the governor firing a prosecutor

who said he wasn't going to enforce certain Florida laws. And then the last one is a wild case out of North Carolina Supreme Court, which invalidated constitutional amendments because they were initiated by a legislature elected through an illegal racial gerrymander. Wow. Okay. Lots going on, Sarah. So shall we start with the Stop Woke Act? Absolutely. Although I just think people should know behind the scenes, you know, David and I meet up in what we call the green room, meaning we just like chit chat before we tape the show. And I always know it's time to hit record when David says, you know, the thing is, and that's exactly what happened today.

That's right. David's revved up. He's ready to go. I was revved up. I was sharing some thoughts. Okay. So let's start with the Stop Woke Act. And this is an act that is different from quite a few other anti-CRT laws. Now, what's different about it is it's not necessarily the text of the law. In other words, what's prohibited by the law, but where it is prohibited, all the places where it is prohibited. So we've talked about these anti-CRT laws before, and most of them that have passed through state legislatures and have been signed by governors, involve instruction at the K-12 level. And they have very, very similar language. So, for example, they'll prohibit promoting,

advancing, inculcating, compelling an individual to believe certain prohibited concepts. And these concepts range from prohibiting instruction that members of one race, color, sex, or national origin are morally superior to members of another race, sex. An individual by virtue of his race, color, sex, or national origin is inherently racist, sexist, or oppressive, whether consciously or unconsciously. An individual's moral character or status is privileged or oppressed, is necessarily determined by race, color, sex, or national origin, and it goes on. So essentially, these are concepts that of varying degrees of complexity sort of are aimed at some of the aspects of critical race theory. It doesn't

ban critical race theory. A critical race theorist would look at some of this list and say, where are you getting this from critical race theory? But that's the intent behind this. And what makes this different is that this law is aimed not just at K-12 education, where, as we've talked at length, the constitutional rights of teachers and the academic freedom of teachers is hazy at best and probably non-existent at worst. And so there's a lot more ability of a legislature to regulate public K-12 teacher speech or public K-12 school speech. But this goes beyond that. It takes this into the realm of corporate diversity training. So whether or not a corporate entity, private corporate entity can hire, say, a consulting firm. It goes into higher education. And so in higher education, where it's been held that professors in the court after court around the country, that professors do have academic freedom rights.

They do have First Amendment rights in a way that extends beyond that of K-12 teachers. teachers. And so this injunction was aimed at, and this was a lawsuit brought by diversity consultants, and the lawsuit was aimed at the provisions prohibiting instruction in these concepts in the corporate world. And the court, an Obama appointee judge, granted the injunction. And he began with a vivid paragraph, Sarah, and I want to start by asking you about this paragraph before we kind of dive into the weeds. Because on the one hand, he's kind of onto something. On the other hand, as we've discussed, I have really mixed feelings about when judges get all pop culture-y. So here's how it started. In the popular television series Stranger Things, the upside down describes a parallel dimension containing a distorted version of our world.

See Stranger Things, Netflix 2022, close paren. I'm not sure that was a necessary citation. But anyway, recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. Now, like the heroine in Stranger Things, there's more than one,

this court is once again asked to pull Florida back from the upside down. And the judge cites to the social media case where the state of Florida had passed a social media law regulating the way social media companies could moderate content. Apparently, this was the judge on that case as well. And so he, but he does make an interesting point here that what Florida is doing is using its power to burden the speech of private actors, and to prohibit private actors from engaging in speech or moderation activities that Florida doesn't like, when the reality is the First Amendment has long protected private actors

that do burden speech, that use their free speech, say, to moderate a social media company or to engage in one kind of diversity training and not another. Very interested in the framing and what you thought of that opening. You know, I actually think that when judicial opinions try to incorporate things that regular people know about as a way of explaining, it is good. I think it's a fine line between that and being snarky or diminishing the seriousness of a claim.

This is pretty close to the line, but I think by and large, it's a helpful metaphor. Yeah, I was very curious because I was on the same line that you are, but I didn't know if I was blinded by the fact that I agree with the decision that I found the sort of the pop culture reference more palatable. But yeah, I thought the upside down framing was helpful in the case. But let's just let's move on to the merits and the merits of the case. But let's just, let's move on to the merits. And the merits of the case, and we'll just, we'll just give you a broad brush on harassment law, and then we'll dive in a little bit more,

with a little bit more detail. So the broad brush is this. Federal civil rights law, Title VII, which prohibits employment discrimination on the basis of, for example, race, sex, national origin, religion. Federal non-discrimination law prohibits discrimination, the kind of discrimination that you might call, for example, in a sexual harassment or a sexual discrimination context, like quid pro quo, like sleep with me or you're fired, or discriminatory hiring. We're not hiring black workers. We're not hiring Latino workers. But it also prohibits something called hostile environment harassment. And this is an interesting area of law

that does and can implicate speech. So essentially what the law is saying, well, there's a couple of ways you can discriminate. One way you discriminate is the obvious way that we just talked about. But you can also harass individuals in such a way that you're essentially effectively firing them, that you're effectively rendering their work environment intolerable. And if you do that on the basis of race or sex or religion, then you're engaging in hostile environment harassment. But to sort of protect the free speech interests of employment, that they've got a harassment claim, that there's a specific test that has to apply.

And that test is essentially saying that the speech in question or the harassing conduct in question has to be so severe or pervasive that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. In other words, another way of framing it is it's severe or pervasive enough that it also creates it's sort of like a term or condition of employment it's it's just part of your life at this work at this workplace is people harassing you on the basis of race and florida tried to defend its stop woke act on the basis of saying well all we're doing is we're trying to actually buttress Title VII by prohibiting harassment and particular forms of harassment. The particular forms of harassment are represented by these

prohibited concepts. And so this was the big fight. The big fight was, was Florida just enacting Title VII? Was Florida going beyond Title VII to actually prohibit viewpoints as opposed to harassment? That was the fight. That was the fight online after the case was decided. And Sarah, I'd love to get your thoughts on the opinion. So some of the problem with the Stop Woke Act and what we've seen on the tech company front in both the Florida cases and the Texas case, and again, full disclosure, my husband, husband of the pod, works on the Texas tech lawsuit on the side of the Tech Trade Association. So when I talk about these things, be aware of that. Though I'll say I don't think it really affects my opinion, or there's a

bit of a chicken and egg problem at least. Perhaps husband of the pod took the case. Anyway. Yeah, right. There's atmospherics around all of this, David. And so to try to talk about it solely based on the text of a law or the text of an opinion, you miss, I think, what the aliens coming down 50 years from now will look back on and be like, wait, what? I don't understand. And it's what was going on in these schools, in these conversations. And so I think the line between harassment and viewpoint discrimination is a lot harder than people on Twitter want to discuss. So I don't know. What did you think? Yeah. So I've been litigated in this exact area for 20 years. And the line between harassment and protected speech, it blurs when they intersect.

And so let me give you a little bit of background and give the listeners a little bit of background into university speech codes. Okay, so you've talked now about university speech codes. And, you know, by and large, with very few exceptions, people across the political spectrum go, oh, man, that was bad. That was a bad idea. And the phrase speech codes, you know, really cast these suckers in a negative light as well. And people get really mad when I call these stop woke act laws, especially when they sweep out of K through 12 speech codes. But they're exactly that. And they're, interestingly enough, motivated by the exact same kind of motivation that you saw with university speech codes.

And it went like this. Okay, we know that we are by law prohibited or by law, we are required to prohibit hostile environment harassment. Well, what is hostile environment harassment? And you have the legal test, you know, severe or pervasive, et cetera, et cetera. And then you say, okay, well, we can put that up on a website that says, this is what hostile environment harassment is.

And then you say, a student or a teacher says, hmm, that doesn't make a lot of sense to me. That's kind of vague in general. Can you give me more specific examples of what hostile environment harassment is? So a school says, okay, we can do that. Here are examples A, B, C, and D that we've pulled exactly from the case law. Here's an example from a case. Here's an example from a case. And then people say, well, wait a minute. That's under-inclusive. I can think of all kinds of ways in which minority students or

people are oppressed or harassed on the basis of race or sex. What about if this happens? What about if this? What about if this? And so then the list starts to get longer and the wording starts to get more vague. And so pretty soon what you have isn't a list and isn't a set of regulations that prohibit harassment. What they turn into is a set of a list and a set of regulations that prohibit speech that's offensive to some people. Okay. That's such a good walkthrough of how these things happen, by the way. Like they don't happen on, you know, a Monday at 10 a.m. They happen over time.

Yes, exactly. So then what ends up happening is you have a list of concepts that are offensive and usually pretty darn offensive to the large majority of the population of the college. So the college isn't even necessarily aware that they've prohibited anything that any decent human being would want to say.

And so in their mind, they're sitting there saying, job mission accomplished. We've just protected all of our students, all students of color, women, et cetera, people who've been historically marginalized in the academic environment. We've protected them from harassment. But at the end of the day, that's not what you've done. What you've done is you've swept so broadly that you've protected them from offensive speech. And by the way, David, you could imagine a situation where some of what they're sweeping too broadly, you know, that it's just offensive.

If pursued in a specific way or manner, could very easily cross into that harassment context, but the way that they've written it is just, you can't even say the thing. Exactly. Exactly. So I'll give you a perfect example that fits this. So one of the things that ended up began happening is that school, and this is going back a few years, one of the things that you saw happen was that schools were all in on affirmative action. They were all in on affirmative action as a means of addressing historical discrimination and present-day disparities, etc. And so, conservative students began to hold things

called affirmative action bake sales. Some people will remember this. I remember it well, David. Yes. They would have affirmative action bake sales. And an affirmative action bake sale is they were trying to make an argument that what affirmative action does is it's actually racially discriminatory. And so in the affirmative action bake sale, they would sell a cookie to a black student for 25 cents, for 50 cents to a Latino student,

for a dollar for a white student, like $1.25 for an Asian student. Try to be a rough approximation of what they thought the affirmative action break or affirmative action benefit that people of different races received. And they got hauled up on charges again and again and again. Because what they were saying is, we're opposed to this action that the university was taking that it believed was necessary, not just to meet its obligations under Title VI, for example, but also necessary to prevent psychological distress, anger on the basis of race on the part of its students. This flips it around. a person that any individual by virtue of his or her race, color, sex, or national origin should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion. This, by its terms, would prohibit a company from advocating for

affirmative action, whereas the university speech code, practically applied would be prohibiting people from advocating against affirmative action. Now, this is a hot button issue. People get emotional about it. People don't like each other for their opinion. But it is not harassment to advocate for or against affirmative action. or against affirmative action. And so- But now, can you give me an example where advocating against affirmative action

would cross the line into harassment in a college context? Ah, we talked about one a few weeks ago. Remember, this was the Amy Wax situation where this is, now again, this was based on some allegations. We don't know all of the full facts, but I can, the Amy Wax situation where she individually directed to a specific African American student, allegedly arguments that their position or their place in the school was by virtue of affirmative action. And so what you're doing is you're singling out an individual and rather than arguing about the issue as an issue, that you're attacking a person as a person

and depending on the severity or pervasiveness of the comment. So again, even if you single out the person as a person, it's not necessarily harassment. It has to be severe or pervasive, okay? So depending on the severity or the pervasiveness, I'll give you an example. Imagine you're working in a law firm and you have a new black employee and you're opposed to affirmative action. And you just assume that he got his position because of affirmative action. And every morning, every morning, you walk by his or her office and you say, hi, Mr. Affirmative Action, that would be harassment. That would be harassment. It would be pervasive. It would be targeted on the basis of race. So that would be an example of harassment. But if you're working for the same firm and you write an email to the hiring committee where you say, I don't think we should engage in affirmative action, that's not harassment.

So the individual targeting, the severity, the pervasiveness of it. So you can see why these things can get blurred, right? It's not crazy to say that these lines can get blurred, but over 20 plus years, we've done a better job at pulling out what is harassment versus what is protected speech. And so the problem that the court had here was, for example, what Florida did was it pulls all of these concepts out, divorces them from the severe pervasive standard, and just bans them outright. And that's what university speech codes did, and that's why this got struck down. But what about the other direction, David, where not based on speech codes at the school, but based on teachers at the front of the school sort of enforcing their own classroom speech code

where students are expected to adhere to certain liberal beliefs that the teacher may have, which was sort of at least the stated genesis of the Stop Woke Act to begin with. Like, okay, the Stop Woke Act doesn't work. It's a speech code. But it was a response to arguably the shutting down of speech from the other side. Yeah. So here's where this gets really interesting. Okay. This is all like peeling an onion. So K-12 speech, let's separate

out K-12 and college. So K- 12, the law, and I don't agree with the way the courts have interpreted Garcetti versus Sabalis as a general matter, but it is what it is as of right now. We'll be talking more about that later. Yes, we will. So as of now, as a general rule, if you're a teacher teaching in your capacity as a teacher, K through 12, you generally just don't have free speech rights. That's why, remember our Coach Kennedy case, the big issue wasn't what was his speech religious. The big issue was, was his speech his own private speech or part of his job duties? Because if it was part of his job duties, he was going to lose under current case law.

But if it's his own private speech, he had a chance to win and could win and did win. So if you're K through 12, you're going to be in a position where the state is going to have maximum control over everything that comes out of your mouth. Now, that doesn't mean that the state can force you to say things that would violate other laws, like civil rights laws, for example. But the state's going to have a big, a huge amount of control over the things that you

say. So if you get reports, for example, that a teacher is teaching third graders to be ashamed of their whiteness, you can come in and you can tell that teacher, nope, sorry, you cannot say that, period. Not necessarily the same for colleges. So in college, a teacher is going to have a lot of academic freedom. Now, that doesn't mean that they have the academic freedom to grade Christians one way and Muslims another way. That's not the same thing.

They do have a big, a high degree of academic freedom to try to teach or inculcate values. And if the government, the state government comes in and says you cannot teach about white privilege, a college professor as a general matter is going to have some real ability to push back against that. They're going to have a much greater degree of academic freedom. Now, experts in higher education and the First Amendment are going to be waving, jumping up and down and waving, David, make clear that departments can have academic priorities and you can make sure that people aren't flat earthers and like a geology department. There are still academic standards that are, the institution has its own freedom and it can set certain kinds of academic standards, but it is just not the case that you have all the freedom in the world as the state legislature to regulate what comes out of even a public university professor's mouth. Now, they can't discriminate

against their own students. I had a case, for example, where a student was asked to give, this was the assignment, Sarah, give a speech on the topic of your choice. That was the whole assignment, the speech and debate class. So he gives a speech on his Christianity. And rather than grading him, the teacher just writes on his paper, ask God what your grade is. Not great, Bob.

Nope, can't do that. You cannot do that. That was actual discrimination. Can't do that. But you have the. That was actual discrimination. Can't do that. But you have the academic freedom. He would have the academic freedom to get up and describe why he was an atheist, for example. So at the college level, it's different. And then at the private corporate level, you're going to have even more free speech. Then it's even less complicated than it is in higher education. Because in the

private corporate level, you're not even a public employee. You're a private employee, and you're a private employer. These are private individuals engaging in instruction on matters of public controversy. They're going to have a lot of liberty there. They're going to have a lot of liberty. Now, the next shoe to drop is there is a case challenging the same Stop Oak Act on the basis of its higher education restrictions, and that's going to be interesting to see what happens. This one was dealing with the restrictions of private corporations. Well, lovely. All right. Well, we'll keep following that case and cases like it. I feel like this will not be the last we hear of it.

No, and not the last we talk about it. Sarah, you're following a fascinating case. A different Florida case. A different Florida case, yeah. Okay, so in short, a Florida prosecutor named Andrew Warren signed a letter about what he thought about some of the latest DeSantis-led legislation on transgender-affirming treatments and things like this. I'll read parts of the letter in a second. But the short version is he signs this letter, DeSantis removes him from office, and the question is, who had the right of way, if you will?

Let me read you a little bit of what this letter said. So Warren is the state attorney for the 13th Judicial District in Florida. He's been elected to that position twice, David. And in June 2021, he co-signed a joint statement with other elected prosecutors. And here's his own quotations from that letter. It called on policymakers to leave healthcare decisions to patients, families, and medical providers and pledged to use their discretion not to promote the criminalization of gender-affirming health care or transgender people.

There was also a part that said that, among other things, criminalizing and prosecuting individuals who provide abortion care makes a mockery of justice. Prosecutors should not be a part of that, and said that these signatories would exercise their well-settled discretion to refrain from prosecuting those who seek, provide, or support abortions, and stated legislatures may decide to criminalize personal health care decisions, but we remain obligated to prosecute only those cases that serve the interests of justice and the people. So if you saw headlines about this, by the way,

the headlines would have said, local prosecutor says he won't prosecute cases under Florida law criminalizing abortion or parents who seek transgender surgeries, et cetera, for their minor children. And that then DeSantis removed him from office, which is, it's a weird office, David. You get elected to it,

but then the governor actually does have authority to remove people from that office for basically neglect of duty. And then DeSantis removes him from office for not doing his job, for stating that he's not going to do his job. So he brings a lawsuit, fascinating, where he says his joint statement

was protected under the First Amendment. And look, he makes kind of two arguments here, but one of the arguments is certainly a version of, I signed this statement. That's what you removed me for. I didn't actually not prosecute anything. I just said I wasn't going to. So that's going to be topic one

that I think is actually pretty interesting. Topic two, of course, he says that he has discretion. That's what prosecutors do every day. And he talks about other areas where they have used discretion in non-prosecution policies for the office, wherein, sure, it's the policy of the office not to prosecute people for minor traffic violations. But if you, as a lower level prosecutor in the office, really believe that this person needs to be prosecuted, you

simply go to your supervisor and get permission, and then you can prosecute them. And he says that would be the same here, that sure, it's a policy of non-prosecution, but the whole point is what's in the interest of justice. That's my job to do. And so if you, prosecutor, think it's in the interest of justice to pursue this abortion provider, you know, they're a Gosnell-type character or something, you just go to your supervisor and say, no, I want to prosecute this one. They'll say yes, and all is well. And he says those policies are quite common in prosecutor's offices. He's not particularly wrong about that. The difference here is that most prosecutors, the governor can't remove them. And then lastly, he notes that he is a political

rival of DeSantis and that DeSantis replaces him with a DeSantis crony, according to him. So David, there's a couple interesting things in this complaint. As I said, I actually find the most interesting part of this to be, I didn't do anything yet. You removed me for signing a statement, which I find fascinating. But in going through the actual case citations, do you know what case is not cited anywhere in this complaint? Garcetti? That's right. Not mentioned once. What is mentioned oddly is Marbury versus Madison. Well. You know, you can always throw in a nice Marbury quote. But actually, he talks about two cases that I just wanted to mention here. One is called Bond versus Floyd. And he uses this for

the point that elected officials have wide discretion to state their views. In Bond versus Floyd, it's Julian Bond, by the way. He's elected to the Georgia House of Representatives in June 1965. And he was a member of SNCC. They opposed the Vietnam War, as you remember. This is the Student Nonviolent Coordinating Committee. David's old enough to remember this, but several of our listeners may not be. Right.

Right. And Bond does an interview where he says he doesn't support the war. He's a pacifist, and he endorses SNCC's views, and the Georgia House of Representatives refuses to seat him. And the Supreme Court, in a unanimous decision, orders the Georgia House of Representatives to permit him to take his seat. Okay, maybe applicable here, but only if you're citing Garcetti, which again, we're going to get to in a second. The other case that they talk about, David, far more recent, the Houston Community College system versus Wilson case that we talked about when the Supreme Court decided it,

they decided it in March of this year. So March 24th, you could find our full discussion of it somewhere around there. That was where the member of the Board of Trustees for the Houston Community College System has lost his mind and is hiring private investigators, saying crazy stuff, doing things to really undermine the entire purpose of the Board of Trustees of the Houston Community College System. They then censure him. Actually, they do some other stuff,

but he forgets to bring viable lawsuit on those other things and only brings the lawsuit on the verbal censure. And the Supreme Court 9-0 holds that that is not an actionable First Amendment claim. I just want to be clear. The prosecutor here cites a case where the guy loses on the First Amendment, 9-0 at the Supreme Court. And at no point does the complaint mention Garcetti, which of course isn't just on point in terms of a government official and the relationship with

the First Amendment. But if you remember, David Garcetti is actually a prosecutor. It's about a prosecution of a case and about a state employee objecting to a prosecution in the manner of a prosecution and saying that was politically, I mean, that was constitutionally protected in the Supreme Court going, nope, nope, not constitutionally protected. Yeah. So to me, honestly, when I first read this complaint, I just did the find feature for Garcetti to see what their argument under Garcetti was going to be. When Garcetti didn't appear anywhere in this 28-page complaint, I immediately assumed that this was not a real lawsuit, certainly not a viable one, and simply chasing

headlines because this person presumably would like to run for office on the basis of this. If you're not citing Garcetti, I don't see how we can even take you seriously in this. The whole question is, when are you exercising your First Amendment right, and when are you exercising your First Amendment right and when are you bound by the specific government job that you hold? And if you're not willing to grapple with that in your complaint about being fired for saying something, very arguably in the course of your job as a government employee, what are we doing here? Well, what are we doing here, Sarah? Because you found the case interesting. And what made it interesting to you besides the non-garcetti? And there's a part that's interesting to me as well.

But you raised my eyebrows because I had kind of... You had already dismissed it. I had already dismissed it. I mean, look, I should have dismissed it. But I guess I thought it was interesting before I read it because I think there actually is some Garcettiness here. If you are the state attorney and you don't like the laws being passed by the state legislature, you certainly have some ability to go out and say, I don't like these laws. And I think you

even have the ability to sign something that says, I don't want these laws. And I think you even have the ability to sign something that says, I don't want to prosecute people who violate these laws. And the question is, do you have the ability then that next step further to say, I'm going to use my discretion to say that people who violate these laws do not warrant the specific attention of my office

with the limited resources we have, I can only prosecute 700 cases a year and we have 900 violent crime cases brought to my office every year. And so unfortunately, to do only 700 cases a year, feel free to give me more money, state legislature, but if you're only giving me enough money to do 700 cases a year, and there's 900 violent crime cases and 20 abortion or transgender cases, I'm going to do all 700 on violent crime. That's an interesting Garcetti-related question. But this is not an interesting Garcetti related complaint, not a serious one,

at least. Right. I mean, that was my feeling as well. Like I was thinking if this was a case decided before Garcetti, I mean, if this was a case brought before Garcetti under the Pickering framework, well, which first asks if this is a matter of public concern, and this is absolutely a matter of public concern, the prosecution priorities of the county prosecutor or the district prosecutor, then he's got some hope. Doesn't mean he wins. It's not just because he doesn't just win if he's talking about a matter of public concern and pickering. There's a balancing test that comes in. about, well, wait a minute, what if he actually then makes prosecutorial decisions as opposed

to announcing a prosecutorial policy that is contrary to the intent of the governing statutes? It gets messy, but he's at least got something. Oh, I probably should have mentioned Pickering is not cited anywhere either. There's very few cases cited in this complaint. I've mentioned the two major ones. Which is not terribly unusual. People often don't cite too many cases and complaints. But the part about this is, it's how does he make the argument that he's only stating something here in his private capacity, that this is not job-related speech. This is not speech as part of his

official functions because he's announcing a policy, right? Yep. Even if the policy isn't as sharply drawn as some of the media reports indicated, he's announcing a policy. And it's hard for me to see how announcing a policy as an elected official And it's hard for me to see how announcing a policy as an elected official isn't part of your job here. And so, you know, listeners know I'm not the biggest fan of DeSantis' actions on speech, but I'm not necessarily seeing how he loses this one. It's worth mentioning he also brings some claims under Florida law. I am not a Florida expert and certainly not on the intricacies of these removal powers. So perhaps there is more merit in the Florida law specific part of this, but I don't, I mean, malpractice alert, right?

Like we're not going to get into that. No, we're not going to. Yeah. Flashing red. But let me just shove through the flashing red malpractice alert for just a moment. And say there is one thing, and this relates to one of our earlier podcasts. There is one thing that has a, there's a aspect of Florida law that's called quo warranto. That's exactly what he sues under.

Yep. Quo warranto, and it goes back to a medieval origin term that essentially means by what warrant. In other words, where are you getting your power? Where do you get off? Yes, exactly. I think that it's Latin for where do you get off. Right. Quo wararranto. And I was reading a piece by a professor in Forbes named Charles Teefer,

who's talking about how the Quo Warranto concept even figured in the glorious revolution of 1689 and that there is a Florida statute, Title VI, Chapter 80, entitled Quo Warranto. We should break out into that Cromwell song. Yeah. And it says, the rules about pleading and procedure in mandamus apply to actions for quo warranto as near as may be. And I don't even want to get into that mess there. But mandamus, writs of mandamus, in other words, writs of mandamus are an extremely unusual kind of relief that you can seek if a public official, sometimes a judge, for example, is behaving badly. You can seek a writ of mandamus. And if,

let me just put it this way, Sarah, if you're seeking a writ of mandamus and that's your primary claim, you're probably losing. That's a gnaw dog. That's a gnaw dog 99 times out of 100. But that one out of 100. Has it ever worked before? No, but maybe it'll work for us. It reminds me of the Jim Carrey line in Dumb and Dumber. So you're saying there's a chance. Shall we abandon the land of Florida malpractice

and move to the land of North Carolina malpractice? Which you gotta hand it to North Carolina in this case. You know, there's a long and storied tradition of Florida man and Florida really owning the mantle of the craziest news you're gonna hear on any given day. And we had two Florida cases here, both of which, you know, really, I think, did their darndest to take the crown.

But unquestionably, the North Carolina Supreme Court. Wow, guys. Yeah. Oh, by the way, before we leave Florida, man, can I tell you a little fascinating tidbit that I learned? Oh, yes, please. So why is it that Florida Man became a thing? And my friend and former editor at National Review,

no, he's my former editor, not a former editor, but Charles Cook said, it's a product of Florida's very unique sunshine laws. Florida is one of the most transparent states in America as far as immediately producing public records. And so if you're a board reporter, you can find arrest records in Florida almost instantaneously.

So what ends up happening is you're able to kind of peruse through arrest records in Florida easier than almost any other state. So it's not that people are crazier in Florida. It's just that Florida publishes their craziness in a more accessible manner. I mean, look, there's obviously some truth to that. But what Florida man is often doing involves gators and the like. I just don't see Indiana man pulling it off. That's true. If you take the same man and he's the same human being and he's in Indiana versus Florida, I presume it's much more inhospitable

and forbidding environment in Florida. And you've got more ways to be crazy and dumb. And don't forget, you know, there's a reason, for instance, that violent crime spikes in the summer. There's something about humans and heat and violence. Florida's very warm. Yes, true. Although it does remind me of the best gator case of all. It's very tragic, by the way,

but it takes place in Texas, close to the Louisiana border. And there's a guy and his girl go to a bar. They get very, very drunk. The bar's on the water. And there's a sign that says, don't swim, beware of gator. And his last words were, well, I won't say the, F that gator.

And he went swimming and he did not come back. Oh man. Yeah. Now, of course, you know, what upsets me about this story is that then they went out and shot the gator. And I'm like, well, what? He put up a sign. The gator said, don't come in my home, castle doctrine. And yet the gator pays the price. If you knew the gator was a problem, you should have shot him before he ate the guy. But once he's eaten the guy, you knew he was there. I don't know, man. Gator gonna gator. Gator is gonna gator. And killing gator for being a gator, I mean... Seems unfair. Seems unfair. Seems unfair. But people still greater than gators, even dumb people.

But then shoot the gator first. You see my point? You only shot the gator after he ate the guy. Yeah, true, true. I mean, the gator had no mens rea here. None. And you wouldn't have put up the sign if you didn't know the gator was there and was very capable of eating dudes.

Yeah. So, hmm. Yeah. Hmm. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-ames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com.

Use code ADVISORY at checkout to save. Terms and conditions apply. All right. From Gators to Carolina? Yes, yes. So this case is something else. Okay. Let me just read a paragraph.

Maybe a little more than a paragraph, because I thought I think the majority does a good job of sort of laying out some facts, but with some interesting omissions. completely unprecedented circumstances that give rise to a novel legal issue directly implicating two fundamental principles upon which North Carolina's constitutional system of government is predicated. Can I just say right off the bat, anytime you say something's completely unprecedented, I call bullshit. Fair enough. Fair enough. But please continue. So here the two principles are the principles of popular sovereignty and democratic self-rule. The issue is whether legislators elected from unconstitutionally racially gerrymandered districts possess unreviewable authority to initiate the process of changing the North Carolina Constitution, including in ways that would allow those same legislators to entrench their own power, insulate themselves from political accountability, or discriminate

against the same racial group who were excluded from the democratic process by the unconstitutional racially gerrymandered districts. What does that mean? What that means is that there was legislative redistricting that was struck down as a racial gerrymander. redistricting that was struck down as a racial gerrymander. The decision striking down the gerrymander as a racial gerrymander was affirmed by the Supreme Court in 2017. In the final week of the legislative session that preceded the 2018 general election, so the final week of the legislative session held by the legislature that was voted under the racial gerrymander, it voted through a series of constitutional amendments. These constitutional amendments passed the General Assembly by very narrow margins. As the court

says, by this time it had already been established that 28 legislative districts were drawn in a manner that violated the Equal Protection Clause. Two amendments at issue in this case were they cleared the three-fifths supermajority, and then they were ratified by a majority of North Carolina voters. So the question was, was this constitutional under the North Carolina Constitution? So we're dealing with North Carolina law. So malpractice alert, malpractice alert all over the place. But it's a fascinating decision that essentially was saying that, wait a minute, because of the racial gerrymander, this General Assembly could not act fully as a General Assembly.

And so therefore, the court was going to, and it didn't go as far as the plaintiffs asked, but the court was casting into doubt these constitutional amendments because they were born out of a legislature that was racially gerrymandered. Now, there's one thing they leave out in this opening portion of the case that I want to circle back to. But Sarah, we barely talked about this in our Advisory Opinion Slack channel. I'm so eager to hear what you think. Oh, I think it's entirely insane.

And tell the people why. The remedy for what the North Carolina Supreme Court seems to want here was to remove those people from office if you thought that they had somehow by fraud gotten into office. But otherwise, the remedy was that the district lines would be redrawn for the next election, and we would elect different people under those lines. We're the same people, by the way. They don't know how many of those people returned under the new lines. But no, the remedy can't be, well, we said you could stay in office,

and then we just simply are going to invalidate anything you did in office that we don't like. Now, mind you, they didn't just invalidate the entire legislative session. That also would have been insane, but at least that would have had a certain consistency to it. Instead, they went through and picked out the things that they didn't like, regardless of the vote, how big the vote was. Again, I actually, again, still think it would have been insane if you had said, well, this only

won by five votes and all five of the bad people or whatever were part of that vote. But no, instead it was the substance of the laws that is why they invalidated them. I mean, that's so many levels of no for me. It's no, that's not the remedy. No, you can't pick and choose which laws to invalidate under the remedy. Wow. Wow. No, no, no. And bear in mind, this is the same North Carolina Supreme Court whose decision is going up under review for that independent state legislative doctrine because they redrew the lines themselves after they didn't like the legislature's lines. It went back and forth with the legislature continuing to draw lines. And then finally, the Supreme Court itself was like, no, we'll do it.

I mean, at some point, they're making the independent state legislative doctrine look more attractive as they start acting more and more like the state legislature. Sarah, so I did something. I did a little homework here. I followed some citations. And what I found was, it wasn't even hard. I just followed the citations to the Supreme Court cases. So in 2017, the Supreme Court summarily affirmed the district court ruling granting judgment to the plaintiffs who challenged the racial gerrymander. So that was just a summary affirmation of the case. But in 2018, there was a per curiam decision by the Supreme Court that was very, very interesting. So it says, at the same time that the district court granted judgment to the plaintiffs and they

summarily affirmed the judgment, this is the Supreme Court writing per curiam, we vacated the district court's remedial order, which directed the General Assembly to adopt new districting maps, shortened by one year the terms of the legislators currently serving in gerrymandered districts and called for special elections in those districts and suspended two provisions of the North Carolina Constitution.

You see where I'm going with this. You see where I'm going with this. The district court's order was limiting the power of that general assembly that was racially gerrymandered, and the Supreme Court vacated that portion of the order. No, it just waited for them to pass laws and decided which ones it liked.

So the Supreme Court of the United States here in this circumstance said, the Supreme Court of the United States rejected the district court, now this was a federal district court, that had limited the power, the terms of the state legislature were limited, you know, limited other aspects of their power. And so the Supreme Court of the United States left the General Assembly in place, but then ordered it to draw, on remand, the district court ordered the General Assembly to draw remedial maps. So in other words, they didn't, the Supreme Court didn't make the General Assembly not the General Assembly. It just ordered it to do and permitted it to draw new maps. So I thought that was interesting.

But again, we're talking about the North Carolina Constitution. the North Carolina Constitution, but the Supreme Court here had vacated an order that would have dramatically limited the racially gerrymandered General Assembly. So it's a little complicated, but the Supreme Court left that General Assembly in place, but not the North Carolina Supreme Court effectively on these amendments.

I don't say this lightly, David, but I think this is one of the more insane opinions of the year, maybe more. It's something. It's something. Because the question then becomes, you know, where are these lines? And then remember again,

the voters ratified these amendments. This is just 50 ways of no. We have our podcast title. I mean, I could call it 50 Shades of No, but that sort of has connotations now. So I'm going to issue a challenge, Sarah. I'm going to challenge our listeners. We have some of the most brilliant listeners. I mean, honestly, one of the more fun things you can do is read the comments section on our dispatch website. There's some fascinating stuff in there, but I'm going to issue a challenge to listeners.

Sarah has says 50 ways of no. Give us one credible way of yes. Yeah. Yeah. I mean, I'll tell you, and it's so funny you say that, David, because I really was thinking that the whole time we were talking about this. We try very hard to steel man the other side. If you and I both feel the same way, we'll say, yeah, but on the other hand, this is what they'll argue, and maybe there's some credibility to that. I'm having trouble on this one, so I would like help from our listeners. Yeah, absolutely. I'm having trouble as well.

Would love help from listeners. And I understand the prudential argument that if you believe that this was racially gerrymandered, that they shouldn't be able to put in, let's take the most extreme example. They didn't let any Black people vote in that election. And then with the limited time they had in office, they tried to put in laws that would limit the rights of black people, make it harder for them to vote in the next election, something like that.

I actually still think this would not fly as a remedy. Carolina Constitution. Or again, you could potentially invalidate the entire legislative session for violating the North Carolina Constitution, meaning it wasn't validly assembled or something like that. But you can't pick and choose which laws, not that they violate the U.S. Constitution or the North Carolina Constitution, but because of the way that the people were brought into office, even though you then allowed them to stay in office. Right. Either you have a legislature or you don't have a legislature. That's right. That's exactly right. Or the laws are constitutional or they're not. But they have like created a new a new metric for themselves. Yeah, it's it's really something else. And it's really, you know,

and I saw some kind of fair critiques where people are saying, wait a minute, you know, if a lot of folks on the left are saying what's happening to our democracy and then applauding this, hmm, you might need to think through that in just a bit. You might need to think through that. You do not want state Supreme Courts going through otherwise duly enacted legislative laws and saying, yeah, but don't love that one. Yeah. And look, I get it. There was a racial gerrymander for which there was a judicial remedy ordered and a judicial remedy carried out. The judicial remedy did not include invalidating selective acts of that previous legislature. You either had a legislature or you didn't have a legislature. So anyway, so Steel Man at Forest listeners, Steel Man at Forest listeners, we want to know why we're wrong.

All right. Well, David, as you mentioned, I'm on vacation this week and someone just got back from the park. Nate, will you say hi? Oh. Oh, he wants to hear you say row, row, row your boat. Row, row, boat down a stream. Row, row, boat down a stream. Row, row, boat down a stream. Row, row, down a stream.

Very good. That's amazing. That is fantastic. Well, listeners, that's your special treat for today. Some row, row, row your boat straight from a boater here. Just went canoeing. Very exciting. Well, we need to get Nate and my granddaughter Lila in for a duet.

Yes. Yes, does she know Itsy Bitsy Spider? Because he's very good at that. She's not quite as good at saying it. She's wonderful at hearing it. Oh, okay. Well, he would like to be heard. Her strength is more the ABC song

in which she caps out at D right now. Oh, he just skips ahead to X. Good, good. X is a highlight letter. We don't miss X. That's fantastic. Well, that is bonus content, listeners. And I tell you, that bonus content deserves us

a fresh wave of five-star ratings wherever you receive podcasts. So go run, don't walk to do that. And also, please subscribe while you're there. And please check out thedispatch.com. And we'll be back on Thursday with a fascinating nerd podcast that I have to admit,

I was skeptical of when we started, but I was all in by the end. So you will not want to miss that. So we will be back on Thursday.