Advisory Opinions - Advisory Opinions Live at GWU

Episode Date: January 14, 2025

Sarah Isgur and David French record live at George Washington University covering the Alito-Trump phone call and new challenges to explicit content age-verification laws. The Agenda: —Justice Alito's phone call with Trump —False statements case —Challenges to Texas' age-verification law —Constitutionality of ID laws —Title IX and Chevron —Questions from GWU students Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

This winter, take a trip to Tampa on Porter Airlines. Enjoy the warm Tampa Bay temperatures and warm Porter hospitality on your way there. All Porter Fairs include beer, wine and snacks and free fast-streaming Wi-Fi on planes with no middle seats. And your Tampa Bay vacation includes good times, relaxation and great Gulf Coast weather. Visit flyporter.com and actually enjoy economy. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French,

and we are here at George Washington University School of Law. But we're going to do a pretty normal episode and then some Q&A at the end, David, because we have a lot to get through this week. We are back in session at the Supreme have a lot to get through this week. We are back in session at the Supreme Court, lots of oral arguments this week. But first, let's start with how the whole Trump sentencing thing ended up. Where we left off, Trump had filed an emergency

petition at the Supreme Court to delay sentencing, to postpone sentencing indefinitely, basically. And Judge Marchand had said, like, I'm not giving him jail time, I'm not really doing anything, we just need to get this off the docket. We went through the three reasons that the Trump team had given. One, overall immunity. Two, there was evidence that should have not been introduced. And three, it impedes on the duties of the president-elect, the same as it would impede on a president who's immune from criminal process.

Okay, so we got a 5-4 decision. It was Jackson, Kagan, Sotomayor, Chief Justice Roberts, and Barrett in the majority. And they basically just said, look, those evidentiary issues seem pretty normal and can be resolved on appeal some other time. And we think any intrusion on the president elect is minimal. They didn't really address number one. And the four dissenters, Kavanaugh, Gorsuch, Alito, and Thomas didn't write anything. Totally silent. Judge Marchand then did go ahead with the sentencing

and it basically ended with, the only lawful sentence permitted for the president-elect is an unconditional discharge, which is a sentence in the sense that the case is ended. Over. Yeah. So he's still a convicted felon. Yes. He has no penalty for it.

Correct. Yes. So there's some a convicted felon. Yes. He has no penalty for it. Correct. Yes. So there's some interesting discussion about this. Did Marshawn sort of use a little bit of nine-dimensional chess to essentially say, I'm going to do this in such a way that you will remain a convicted felon so that now and for all time you are a convicted felon. But without in any way interfering with his presidential duties, it was a nothing ending, in my view, to what should have been a nothing case to begin with. But doesn't this feel like we just spent 18 months of everyone's lives and all this money and all these prosecutorial resources that could have gone somewhere else on something that ended in an unconditional discharge?

Look, I mean, you know, I think we both, this is one of those areas where we've had a hive mind from the beginning. This was not a felony prosecution that should have been brought. And a lot of people after the jury convicted him were saying to us, well, you know, look, he was convicted. And if it's upheld on appeal, then absolutely shouldn't have been brought. Well, this is kind of what I'm talking about. This was here at the end of all of this, we have an unconditional discharge. There is no real consequence for his actions at all other than the embarrassment of the trial, which proved to be not very consequ actions at all, other than the embarrassment of the trial,

which proved to be not very consequential at all, or maybe it was consequential enough to help him be president. This case bothered me in every aspect from day one, and the ending is exactly fitting for that. Okay, what about the five five four split at the court? very intriguing because I I Wanted the four to write. Yeah, I'm one because I'm just you're just left trying to read their mind

I And I also think it's very different if they think for instance that if he was immune and remember that It's interesting because some of this occurred before he was president in 2016, but a lot of the payments that we're actually talking about were in 2017 while he was president. So that immunity part could be quite relevant, although it seems like unofficial conduct to me. I don't see how any of that was done as president, but okay. Um, so there's one version where the four thought, well, this is implicated by the immunity decision.

And if he was immune, then he was immune from this whole thing, including sentencing. So you can't go through a sentencing. But there's another version where they actually do think the president-elect should be immune from criminal process. That's a totally different decision. Two different things. I willcision. Two different things.

You will never know. No. No. I mean, this is the... I think from now... I make a motion that from now on, when you look up the term ending not with a bang but with a whimper, that this is the example from this point forward. Okay.

One footnote to this whole thing. Right before Trump filed his emergency petition to the Supreme Court about this, he made a phone call to Justice Alito that made some news. It turns out that President-elect Trump was considering hiring one of Justice Alito's former clerks, Will Levy. Full disclosure. I worked with Will Levy on the Romney 2012 campaign. I consider him a very close friend. He was Bill Barr's chief of staff at the Department of Justice after I left. But Will is this just this all around wonderful human being

who happened to have clerked for Justice Alito. And I guess President Trump said something to the effect of like, well, would Justice Alito recommend you for this? And I was like, yeah, I was like, can I give them a call? So Will contacted Justice Alito. I was like, would you take a call from the president? And Justice Alito said, yes. The president called Justice Alito.

I guess they really did exclusively talk about Will. At least that's what both parties seemed to say. But the appearance looked particularly bad. It looked like perhaps President Trump was trying to, you know, get Justice Alito to owe him a shit. Like, well, how much do you want your former clerk to get this job type thing? And of course, Justice Alito has had his hands full

with other sort of nonsensy flag related stuff. I say nonsense and I know you take it a little more seriously than I do, but I mean more, he's already in the headlines for this type of Trump related stuff. And yet it did feel, it certainly got fewer headlines than the flag stuff did. Yeah, I mean, a lot of things about Trump

are getting fewer headlines. I mean, that's an overall trend. People are just covering him in a slightly different way, I would say. I don't have a problem in principle with a president calling a Supreme Court justice and asking about a potential hire. I don't have a problem with that in principle. I do think in the circumstance, it would have been entirely appropriate for Justice Alito to say,

can we table the conversation until after we rule on it? Justice Alito didn't know, right? It hadn't been filed yet. Oh, hadn't been filed yet. Right. He had no way to know that an hour later he was going to get a filing. So Justice Alito can't do anything. Will doesn't know either, so he can't prevent anything. So the only person who knew was President Trump, who's certainly not going to say, I'm not going to do this. Yeah. Yeah. I mean, I think it's an interesting dynamic between justices and their clerks. But yes, they serve as references to their clerks. Of course, it's a full-time boss you spent the year with.

Sometimes we talk about this all the time. So AO listeners don't forget this, but judges are human beings, and that means they're bosses. And what do bosses do? Bosses provide references for their employees. And in fact, talking to law students right now, that's a big reason why you want to perform well as a clerk. Because that's a key reference for the foreseeable future after you leave your judge. And so to me, all of that is fine. The fault to where any

fault lies under the scenario where Alito learns of the filing about an hour later is with Trump. I will also say for those saying that, well, I just think that's wildly inappropriate of the justice to provide a reference to the president of the United States. I'll tell you what happens every single day. By and large, clerks for Supreme Court justices are going to be far more likely than others to go into government service in political appointee positions. I promise you that every clerk who's about to go into government service

talks to their justice first and their justice encourages them to go into that public appointee position because of course that's how all the justices got to their jobs. Chief Justice Roberts, Kavanaugh, obviously, Gorsuch, Alito, Kagan, all of them served at one point or another in the Department of Justice or the White House. So would you think it was inappropriate if you found out that Justice X encouraged their clerk to go work for President so-and-so and then that person's a lawyer and president so-and-so's administration. But that happens every single day across every administration. So some of the people I think

who were particularly critical of this just aren't in this world to understand what the universe looks like around it. Because if you're gonna criticize this, I think you have to kind of criticize the whole thing. But it goes to the point that they're humans and they're bosses and these are mentors. Yeah. This is one of those things that we've actually spent more time already on the podcast talking about it than I've spent thinking about

it. Okay, well in that case, the Supreme Court also granted cert in three cases, two of which we'll end up talking about. One, the difference between superior and inferior officers. So for instance, in this case, at the Department of Health and Human Services, there's basically a board that decides what things insurance companies must cover free. And I mean, nothing's free, but like free to you. So for instance, PrEP medications, cancer screenings, there's a lawsuit related to that. And the question in the lawsuit is,

those members of the board are not Senate confirmed. Do they need to be? And there's really not a whole lot in the Constitution that tells us, the Constitution contemplates these Senate confirmed positions and inferior officers who are not Senate confirmed, but then it never defines them. And as Justice Willett, who wrote the Fifth Circuit opinion in this case, sort of walked through the history, there is no history. They were busy debating basically how the Senate confirmation process would work if the Senate should be involved

or maybe it should only be Congress and the president shouldn't be involved. It's like they're very busy on that side and nobody seemed to be debating superior versus inferior officers. So that will be really fun. That will be interesting. That reminds me of when you hear Justice Gorsuch talking about, he likes to say, that is an issue that requires judgment. So we will get a judgment, but not with that lot of textual assistance.

There was also one of the student loan forgiveness rule questions, sort of how blanket can something be when it's supposed to be an individual assessment. And the third one, which I'm sure we actually won't end up talking about when it's argued, but this was on a really messy divorce and the mootness question around the taxes that they owed. So David, when you overpay your taxes, they basically just create a little credit in the system so that if you do owe taxes later,

they just draw down from that credit. Well, these two people filed together, there was a $50,000 credit, then they get divorced. He underpays taxes first and gets the benefit of the $50,000 credit. She's like divorced. He underpays taxes first and gets the benefit of the $50,000 credit. She's like, wait, some of that should have been mine because then she underpays taxes next.

But then she overpays the next year so then they just draw down from that. Is her case moot now? Who knows? That's the last you're ever gonna hear. I can't remember if I've ever heard of a divorce case at the Supreme Court. Can you think of a divorce case? But it's not a divorce case.

No, I know. This is a divorce case. Yeah. Well, remember the divorce case where she's with the really bad dude in the criming, but he's the crimer. And so it's like, I don't remember all the details, but they weren't married, I don't think. Maybe they were.

Anyway, it was definitely a timing one. Well, when I was in, my very first law firm that I worked for was a commercial firm, but it had just hired two very high-powered divorce attorneys. And they hired, the firm hired the divorce attorneys because they were finding out that a lot of their wealthy clients were asking their corporate counsel for divorce attorney recommendations. Why give that work away? We're leaving money on the table. Brought in these two attorneys to do divorce work.

And so one of my favorite things my first year out of law school to do was go to lunch with the divorce attorneys. And we didn't know it was called tea at the time. It was not tea, it was just gossip. But they spilled the tea on their clients and oh, Sarah, how much I lament attorney-client confidentiality on some of these stories. My goodness. Oh, don't forget the Supreme Court case about the Texas billionaire and Anna Nicole Smith. That got to the Supreme Court in the 90s or the early aughts. That's right. Totally forgotten. Yeah.

Totally forgotten. Okay. So on Tuesday, when you are hearing this podcast, no doubt, we've got the oral argument on that false statements case. This is the scion of the Daley family, of the Chicago Dailies, of which I guess they all go to jail. I don't know. I'm very confused on how the Dailies keep running into the law this way. You think as the grandson and nephew maybe of a Daley, you would really want to walk the straight and narrow, you know? But we talked about this case when it got granted, David, that in short, he takes all of these

loans about $200,000 from Friendly Bank. Friendly Bank goes under, new owners come in, and he gets this phone call. He says, I borrowed $110,000. But he knows he actually borrowed $250,000 or whatever the real number is. But it's not false to say he borrowed $110,000 or whatever the real number is. But it's not false to say he borrowed 110,000, he did. He just borrowed more than that also. He did not say he owed $110,000, that would have been false. Although again, I think you would use the same logic,

well, he owed 110, he just also owed more. Anyway, so the question is, he was convicted of providing false statement about financial records, etc. Was it a false statement? Or was it just misleading? And are you going to see Justice Gorsuch quasi rule of lenity this ambiguous, you get the benefit of the doubt. I think that the whole like, Chicago Daily part of this is not inconsequential to not feeling very lenity-ish. Yeah, I don't know that this is gonna fall in that lenity world.

I mean, I get the argument from this most hyper-technical that if you owe 200,000, you do owe 110,000 as a subset of the 200,000. It'd be like at the end of a basketball game, if you scored 30 points and you said, no, I scored 20. Well, you did score 20 on the way to 30, right? That is not the way normal people communicate. I don't understand how that is in any way,

anything other than direct deception, just direct. Also, if you remember, again, when we covered this at the cert level, I actually did not, like, when you actually look at the statements, some of them just looked false to me. So I'm kind of confused on why this is at the Supreme Court, but we'll find out at the oral argument on Tuesday.

And then Wednesday is the big game for this week. This is the Texas porn law. Right. Texas passed a law that requires websites to verify the age of their users if at least one third of their content is harmful to minors, such as pornography, but not limited to pornography. I would also like to note that we have five children in the audience right now and this is going to be weird for me. But they all look young enough except maybe one over there to not know the words that I'm using. Okay. When mommy and daddy love each other very much.

All right. So part of the problem with this is a few things. One, our overall question is going to be what's the level of scrutiny? The Fifth Circuit held that it was rational basis because limiting access to minors is just not a very big deal. But the group that's suing, represented by the way, again, disclosure by Derek Schaefer, who actually I was a summer associate for way back in the day. He's now a big deal at Quinn Emmanuel. I'm sure that my contribution to his bottom line

really helped get him where he is today. So I'm sure it's a pretty big disclaimer. Yeah, I'm sure. Their argument is that in order to have that age gate, you are actually blocking adults from accessing content that they have a right to access, and therefore it should be strict scrutiny and There's little subparts of this right? Yeah is pornography protected by the First Amendment Does this only cover pornography because it's sure like content that's harmful to minors at least again

The other side is arguing covers our rated movie stuff at least again, the other side is arguing covers R-rated movie stuff. Just explicit sexual content could be deemed harmful or violent or maybe suicidal ideation. I'm not entirely sure. And then there's how the age gating works. It's up to the website, for instance, but if they're asking for your license number or your birth date, they now have that information about adults who may not want that information to be handed out. Okay, so we have, I think, unlike the TikTok case where I said there was no real good precedent

that we were really gonna fight about, this to me is sure there's two precedents. Which one do you think wins the day? On the one hand, you have the Ginsburg precedent. This is the girly magazine case. We've actually talked about this case before. I'm going to read from the Oye website, because I really like the way they wrote it.

But Sam Ginsburg and his wife operated Sam's Stationery and Luncheonette in Belmore on Long Island in New York. They had a lunch counter that sold magazines, including some so-called girly magazines. On October 18, 1965, a 16-year-old boy entered the store and purchased copies of Sir and Mr. Annual. The purchase was instigated by the boy's parents to lay the grounds for Ginsburg's prosecution. On October 26, so literally the next week, Ginsburg sold the same minor copies of Man to Man and Escapade at the instigation of a police officer. All of the magazines in question contain pictures of nudes and Escapade and Mr. Annual contain

verbal descriptions and narrative accounts of sexual excitement and sexual conduct. I just want to emphasize that there are children in the audience right now. Okay, so in short, the Supreme Court in a 6-3 decision says this is not a problem. He was in fact convicted of this because they largely said that minors don't have a First Amendment right to access pornography and that when you walked into the store, yeah, the guy should have asked the age. There was a law against providing them that material and it's just not that hard. And it reminds me so much of when you see the Supreme Court deal with something the first time, and they can't think through all of the implications of what could be happening next. Like, that's the Ginsburg

decision because it makes a lot of sense. You have to walk into a store to access this stuff. How hard is it to look at someone and be like, yeah, that kid looks under 18. And the kids are bailing from the podcast. Okay, one of them is only six months old. I feel confident that I didn't deprive the six-month-old here of her morality, but maybe the older ones. Okay. Okay, so the Supreme Court in the Ginsburg case, 6-3, no First Amendment problem with the New York law on forcing store owners basically to gate that content to minors.

Fast forward to the Ashcroft decision in 2004, and by the way, this one goes up and down a couple of times, it's going to end up being a 5-4 decision about the Child Online Protection Act, which in short is just to prevent minors from accessing pornography online, but instead of walking into a store, now you can get it on the internet. So the Supreme Court 5-4, really weird lineup. You've got Kennedy, Stevens, Souter, Thomas, and Ginsburg on one side, Rehnquist, Scalia, Breyer, and O'Connor on the other side. And they do hold strict scrutiny and basically say Congress has not met its burden to show that the requirements of this law were more effective in other methods of preventing minors.

For instance, what do you call the parental controls? The blocking or filtering technology. Yeah. Yeah. Mm-hmm. Like this is back in 2004. We now all kind of know that blocking and filtering technology. Yeah. Mm-hmm. Like, this is back in 2004. We now all kind of know that blocking and filtering doesn't do much. Not if your kids are... It's not least restrictive means.

It's not restrictive means. Yeah. Okay. So fast forward to 2025, and this is the argument that they're hearing on Wednesday, David. Yeah. So this case is really interesting because, on the one hand, it's just absolutely clear that minors do not have a right to access pornography.

I mean, in all 50 states, there are age restrictions on minors' access to pornography. But real quick, is that because the minors don't have rights because they're minors, or is that because pornography is not protected? Because minors don't have that right because they're minors or is that because pornography is not protected? Because minors don't have that right because they're minors. So there is material that would be not protected as to minors. So it gets a little bit tricky. Do minors not have the right to access it or is it that the material as applied to minors is not protected. And it's actually kind of a little bit of a both-and.

There is some stuff that is obscene as to minors that is just flat out not protected, but there's no real precedent that is saying that minors have any sort of right of access to pornographic material. So the bottom line is all 50 states, if you're gonna try to access it live and in person, there's going to be an ID requirement. And even beyond that, and almost everywhere, if you want to access it live and in person, you also have to go to very narrowly drawn zoning

districts. Like adult establishments are, because of what's called the secondary effects doctrine, are now allowed to be reserved for very specific, limited areas of the city. That's how, for example, they cleaned up Times Square or Lower Broadway in Nashville. When I went to Lipscomb in 1997, you did not go to Lower, the only reason you went to Lower Broadway was because of the porn establishment.

You were not going and hanging out. Now they cleaned it all out and Lower Broadway is the bachelorette capital of the porn establishment. You were not going and hanging out. Now they cleaned it all out, and Lower Broadway is the bachelorette capital of the world. I mean, it's insane. But Times Square was nasty. It got cleaned out through zoning. Same with a lot of, like, quote, red-light districts in a lot of cities.

And so in the offline world, adults already have to show ID and often get into a car and drive for miles away from schools and neighborhoods to access pornography. Online, there is zero, zero, zero, zero barrier to entry. And so essentially, there's a third case. This is if you're going to look at the online child protection, 1997 Communications Decency Act, in the Reno case, Supreme Court says, no, you cannot age limit under the Communications Decency Act for two reasons. One, the definition of pornography was overbought. And the other reason was that the

technology just didn't exist to do it. That if you were going to age gate it in 1997, you were going to, it's just done. Like, it's just not really feasible. So they try again with the Child Online Protection Act. And the Reno case, the Reno case, I believe, yeah, was nine for the majority. It was a seven for the majority with two concurring in the results. So all nine justices said no. You roll forward to Child Online Protection Act and it's 5-4.

So it's narrowing. And why was it 5-4? Because the thought at that time was blocking and filtering was a less restrictive means of achieving the same result. So what's changed in 20 years? Two things, technology and experience. Age gating technology is far better than it was, far more easier to use.

And then we also know that blocking and filtering is almost defines the word ineffective. And I've got some numbers for you, Sarah. I've got some numbers because I wrote about this over the weekend. So in a 2022 Pew study, 54% of children, 13 and younger had viewed pornography. So 13 and younger, 54%.

11 and younger, there was still a substantial number. It wasn't a majority, but 11 and under had viewed it. Or they attended a recording of this podcast. Or they attended a recording of this podcast. By age 17, the percentage of young people who had viewed pornography was 73%. And what was also interesting, if you drill down into that study, you found that 58% of people had viewed pornography inadvertently. 29% of them had viewed it only inadvertently. In other words, 29% had viewed it on purpose some and accidentally, but 29% had only viewed it accidentally and inadvertently. And so,

not only do you have huge amounts of porn consumption, you also have a large percentage of those people being exposed to it without wanting to be exposed to it, without actively trying to be exposed to it. And so, the idea that blocking and filtering is any kind of answer right now, I think it's just completely wrong unless you want to change the law to sort of say, or change the doctrine to say, wait, no, kids actually do have a right of access to that. And I don't see that happen. Okay, so let's go back though to the first overall question here, which is, is it strict scrutiny, though? Right? Or is it rational basis? Because the Fifth Circuit said, basically, you can do whatever you want with these porn sites. It doesn't need to be compelling or narrowly tailored or anything else. What I hear you at least saying is, you think it's in strict scrutiny world,

but you think it could overcome strict scrutiny. Yes. Because I think if you go back and you read the Ashcroft case, the 2004 case that you talked about, you know, here's a five-four case where really much of the argument is over the other means of protecting. And that the idea was that this age verification or age gating was not going, there are other more effective ways to do that, or other ways that were less restrictive. And so it was a less restrictive

means analysis. Now, I'm not saying it necessarily has to be strict scrutiny, but it's hard to escape that because it is a content-based restriction. Which justices will you be most keen listening for on Wednesday? Oh, well, I mean, 333, I'm listening to Kavanaugh, Roberts, and Barrett. Because this is a First Amendment case, Gorsuch and Thomas are pretty interesting voices on this stuff. Yeah. And on opposite ends of that spectrum, I could see Justice Thomas fighting for rational basis review on something like this.

I'll be curious what Justice Gorsuch is saying, right? This is a guy who has generally been, you know, anti-social media companies, but pretty big on First Amendment stuff. Yeah. So where's that coming down? Very curious if we get some Barrett and Kavanaugh, mom and dad type hypotheticals. These are people with teenage age children like they're in the heartland of why this law was

passed in a lot of respects. We'll see I think I mean the lineup on Ashcroft as I said it was five four but it's a weird line. It's a weird lineup. I could see this next lineup. I don't know where the three Democratic nominees are gonna land on this. Correct, neither do I. Yeah, I'm very, this is one of the few cases where I'm walking into it and I

just don't know. I just don't have any idea. Right, I mean in the 5-4 you had Ginsburg in the majority and Breyer in the descent and you had Thomas in the majority and Scalia in the descentent. So it was just not ideological for Ashcroft, and I'm not sure it will be here either. Yeah, yeah. You know, it's interesting. I feel the same way about the TikTok case. I think we've got a number of interesting cases

that don't have a clear ideological valence. And traditionally, porn cases were left right. But there's a lot, awful lot of center left parents who are like, no, no, no, no, this is should not be on my son's phone, get it away from them. I do think that the, that the ideological valence is just not quite what it was. The one thing you said that I disagree with though, is that age gating works. I don't know that that's true. And I don't know that there is even a particular way of age gating at this point that is effective.

And if the law is sort of a strict scrutiny, if you let a minor in to view this material, you are held responsible. I do not think we have age gating of any kind that will be that effective. And so in short, you could be shutting down websites or preventing anyone from viewing R rated movies on Netflix. But it's not a the burden on the companies is to impose a requirement in a certain way. So in other words, once you create, say, a third party verification service and rely on that, or you go through certain steps, you're in the safe harbor. If a kid accesses it through a VPN and you've done everything that the law requires you

to do, you would be in a safe harbor. And so- That's this law. Fair enough. Right. But also though, in theory, I don't know why the outcome of this case would necessarily prevent a law that was a strict scrutiny law.

I think that if there was a strict liability regime. Sorry, I meant strict liability. So if there's a strict liability regime that if there's a 15 year old found on your service, you face a criminal penalty, I don't think that's going to fly because- But doesn't that speak to the fact that age gating is not particularly effective?

You can ask for someone's birthday. We know that's not going to work. We all can count. Yeah. And the requirements are for much more than just asking a birthday. Yeah. Then you're asking what? For credit card information, licenses, what actually has been proven effective?

Because kids have credit cards. They have access to their parents' credit cards. There's a difference. I think we know we need to, there's a difference between effective and foolproof. So in other words, if you're wanting to diminish the easy access to porn by raising roadblocks, that I think that this is effective at increasing roadblocks.

Is it foolproof? Of course not. I'm not sure it will do anything. Look at it this way. And the problem is, I think, because kids are... It will not do anything until you ratchet it up high enough that it in fact prevents adults from seeing it. And that's the whole tension here, is that you're not really...

In preventing kids from seeing it, you're actually preventing adults from seeing it. You're not preventing. You're not preventing at all. You're raising, you're making adults make a risk calculus. You're not preventing them from doing one thing. Sorry, I think you're misunderstanding a little bit my point, which is the harder you make it for kids to access pornography, by definition, the harder you've made it for adults to access. Look, forget pornography. Sexy R-rated movie.

As in, if you just, for instance, have the pudding your birthday. Well, that's not a high barrier for adults to then see the R-rated movie. But it's also not a barrier for kids to see the R-rated movie. And the more you ratchet that up to make it harder for kids to access it, you're also, by definition, going to make it much harder for kids to access it, you're also by definition going to make it much harder for adults to access it because if you really want to prevent kids from not accessing this, it's going to be really hard to do that. Okay. If you wanted to make it in a strict liability regime, yes, but not in this regime.

What do you think they're using? They're using third-party verification services, which are relatively easy to use. They're using what though? Like what's the... Personal identifying information. So license plate, I mean license plate, licenses, you know, government documents that indicate identity and age. And I'm sorry, I can't do Jack or Squad as an adult in the United States of America without providing identifying documents. And telling somebody, okay, you can't rent a car without a driver's license.

You can't go to, you've got to, if you're walking into an R-rated movie, you're gonna have to show an ID if you look close to that age. I mean, think of all of the things that require an ID for. But then here in porn, here's what happens. People go, but if I turn over my idea to those people, they're not Avis car rental, they're not Hertz, they're to those people, they're not Avis Carinol, they're not Hertz,

they're YouPorn, and they're some of the most evil human beings alive on the planet, they might do something bad with my stuff. Or there might be a hack and someone gets my information and now they can blackmail me because they know I've subscribed to YouPorn. So this... Is YouPorn a real site? Did I just... It does exist, yeah.

Oh, sorry. Okay. So do you... I thought we were using a hypothetical. But here's the thing, though. First person, maybe? Here's what I don't get. Here's where this argument just collapses for me. And maybe this is just like parent me and rising up is, okay, so you're telling me that you're doing something that is so condemned in a big chunk of society that it will harm

me as a person if it's known that I'm doing this. So kids should be able to access it so that I don't engage that in that risk. No, you've lost me. You have lost me. I mean, I don't understand, I literally, that reasoning to me breaks my brain that of all of these things that we require ID for, this one thing, which kids, by the way, have no right to at all,

it's never been held to have a right to it, because this is deeply embarrassing and potentially harmful to my career. If people found out I was looking at some of the vile stuff that's online, that, you know, I really should be able to see that without any fear or concern. And if that means 10-year-olds see it too, so be it. I don't, I just don't get that. Like, I just don't get that reasoning.

All right, we'll report back after the argument. Our next episode will actually delay recording, so we can listen to the argument and tell you our thoughts on both of those oral arguments this week. OK, last few housekeeping things before we turn to questions. One, that report from special counsel Jack Smith. Remember, he was going to do two volumes, one on the January 6 case, one on the classified documents case.

Judge Eileen Cannon enjoined him from releasing either report even though there's just no argument for that January 6th report. The 11th Circuit cleared the way for the report to be released, but basically said that was a separate motion, if you will. They did not have before them the Eileen Cannon preliminary injunction, and so it was just this once in its order that was like, that was a separate motion, if you will. They did not have before them the Eileen Cannon preliminary injunction. And so it was just this like once in its order

that was like, come back to us on that one. So here's what's happened. She has released the injunction, if you will, on the January 6th report. Which there was never the most remote basis for it. All right, so that one is out of her world. However, she has kept the injunction on the classified documents case and is fact-holding a hearing on Friday to discuss it. Well, David, Friday is an interesting day

because as of Monday at noon, there will be a different president and a different attorney general and a different Department of Justice who may have different thoughts on releasing that report. So there's a bit of a race against time here for the Department of Justice and frankly Congress, because the Department of Justice is talking about releasing this to Congress. I'm still confused about standing issues here. I'm confused on a case that's been dismissed, how any of this is properly in her court to begin with, et cetera, et cetera, et cetera. But it's almost not, how any of this is properly in her court to begin with, etc. etc. etc. But it's almost not going to matter. She's running out the clock. Yeah. Yeah. Or the 11th Circuit is going to have to step in again. Yeah. Yeah. File an emergency motion before the 11th Circuit, before the

Friday hearing would be one way to do it. I don't know how much stomach there is in the Biden remaining days of the Biden Department of Justice. Jack Smith has left the Department of Justice, so he's no longer an employee. Yeah, he's gone. So I don't know how much stomach they have to really push this. But it is, you know, we spend a lot of time giving Judge Cannon the benefit of the doubt. I think the time is over. As she is running out the clock, so am I. Yes. Last one.

Do you want to talk about this injunction on Biden's Title IX? Yeah. Yeah. So this is an interesting... Now this is something that is going to be... This issue will be moot with the new Trump administration because they're not going to continue to adopt that. They're not going to accept the Biden Title IX changes. But so this

last week, a federal judge in Kentucky and joined the enforcement of the new Biden Title IX regulations. I was super interested when I saw it was a federal judge in Kentucky because I thought, do I know him? Do I know him? He's my former boss of my old law firm, Danny Reeves. Great guy, love Judge Reeves. So he enjoined the Biden Title IX regulations, I think as he should have, but this raises a really, this gets us back to the administrative law,

Chevron conversations we've been having for a while. Why is it? Why is it? And this is something I'm asking my super smart listeners and asking y'all if you've got an explanation for it. How is it better to have the chevron legal environment where the same statute can mean radically different things, depending on the president, without amending the statute versus the present regime, which is to say, in essence, hey, you can write regulations based on the

statute, but you can't be changing the meaning of the law radically without the law changing. And this is what we've seen now in three cycles, four cycles of Title IX. So you had Title IX under Bush, big changes to Title IX under Obama, reversal of those changes under Trump, and then a re-reversal of those changes under Biden, to where they mean fundamentally different things without the statute changing at all. That's what gets me about this sort of this remaining sort of longing for Chevron. There are real issues with creating a legal regime where you can change the meaning of statutes without changing statutes.

And, you know, so to me in the Biden Title IX regulations, the radical departure itself from previous iterations of Title IX interpretations is a warning flag, regardless of the direction in which those radical changes are made. And I know there's plenty of people who just disagree with me on this, but I really believe that once regulatory agencies are held to a single definition of where their regulations can be, what the statute means and what their regulations mean, Congress will have to do more. Yes. Because you can't keep satisfying your constituencies in every administration.

It was a great line from the opinion in that case that you're talking about, David. This case concerns the United States Department of Education's attempt to bypass the legislative process and completely transform Title IX of the Education Amendments of 1972 through sweeping new regulations. Fill in the blank. EPA, Title IX, immigration. It's the same story over and over again. Net neutrality, FCC, like all of it. And you're you're right to me it's just not an ideological fight It's so clearly a fight over Are we going to do this through our political process?

Or are we just going to have each side sort of do constituency? Fan service every four years and flip back and forth and no one's gonna complain Yeah, this is something that is one of the, there are a lot of things that are very big and obvious that are polarizing our country. And there are some things that are super nerdy and wonky, but when you learn about them are really polarizing our country.

And this is one of those, this idea that with every new president comes in a whole new set of laws on day one without Congress doing one thing. Criminal laws. Criminal laws. Criminal laws. Yeah.

I mean, so this is because, you know, I'm teaching this fun class in my ellipsis called foundation, legal foundations of the American Foundings, plural. And I talk about one of the foremost goals of the founders, if you're looking at the 1787 Constitution, why would they, why were they so keen on the separation of powers? This isn't just something that they caught up, thought of like cool idea, separation of powers. They were trying to very deliberately move from the

monarchical, from the monarchy model, which put war making, law making, the judiciary, sometimes even ecclesiastical disputes, all under the hands of the sovereign. And we very deliberately pulled these things out of the hands of the head of state. And now, you know, Chevron was moving some of that lawmaking power back into the president, and which makes it, which makes him more like a monarch. And this is just goes completely against the founding design. And this just goes completely against the founding design. All right. With that, let's take a few questions. We have a microphone here.

If you don't want your name to appear on a podcast, I wouldn't use your name. You can use a fake name. You can use no name at all. Those are some of the things I would suggest. Or we could agegate it. That's easier in person. are some of the things I would suggest. Or we could agegate it. That's easier in person. Anybody have a question? I'll bring the mic over. Not so much a question as thoughts on the Chevron thing. So

economists not lawyer here. Great. And if your side generally wants more regulation, and there's a cost to changing your compliance with regulation. Under Chevron, where regulation is changed every four years, if the cost of compliance with regulation is high enough, you always get the strictest regulation. Under Chevron, even when your side's not in power. So that might explain some of the ideological valence to the Chevron decision as well as... What's interesting about that though is in practice, for instance, take the environmental regulations, they just don't build the thing because you don't know what the law is going

to be, what the regulation is going to be in 8, 10, 20 years, the investment horizon for some of these. So nothing gets built at all. And that's not helpful, to your point about if they just abided by the strictest regulations, but it's not quite an on or off in that way. It ends up being weirder. The Clean Power Plan, for instance, that Biden used was not the same as Obama's. So you have a different one under Obama, Trump, and Biden. So there was no way to invest in any sort of future for coal power plants, for instance. Well, and it wasn't actually a swinging from Trump. I mean, Obama, Trump, Biden,

they didn't swing back and forth on Title IX regs either. There were differences between the three. So you had some relatively broad swinging, predictably broad swinging back and forth between Republicans and Democrats on a macro level. In the details, none of the three matched. None of the three matched. And so, and sometimes it's even hard to say what's the strictest. Strict in which direction? Protective of speech, protective against harassment. There's all different ways to measure strict. And then to make this even worse, you come into office and you're

doing the regulatory change. Well, that comes through a notice and comment period. It can sometimes take a year, two years. So then you come into office and year three you announce the change. Year 3.01 the lawsuits challenging the change come in. Year four you're out of office and then in comes the new change and it's in comes a new change but not right away. You're litigating over old stuff until the new notice and comment period and the new announce change. And it's just absolutely no way to run a railroad. It's almost like it's just baking chaos into the system.

And who wins are the largest and the most complex companies who can not only have the legal teams to manage through that, but it actually helps them because they can smother out the little guys who can't live in a every four years regulatory world. And I don't think that's the case in a Title IX world where universities by and large all have huge legal departments. It's probably not a big issue with coal-powered, coal-fired power plants either. Those are going to always tend to be large-scale operations. But for every major regulation we're talking about,

there's like a zillion of these little ones, like about how big the fish need to be. And so you just don't know the economic cost, not of the regulations, because oddly, there's a lot of people who spend time calculating the economic cost of regulations. But the economic cost of the delta of changing the regulations every four years and how many new businesses don't start, how many large businesses are able to wait out slash drive out little ones as well. So I don't know. I have high post-chevron dreams. For democracy.

Yes. Yes, absolutely. No, but it really is a... And also the Chevron debate is often a little bit behind the times ideologically because if you rewind the clock a decade, the way this worked out on the left-right valence was the left wants more regulation,

the rights wants more limited government. So therefore removing discretion from administrative agency is a right wing objective to curtail left wing use of the administrative strait for left wing objectives. That is not as so neat and clean about government power anymore. A lot on the right really like government power now, like really like it a lot. And so Chevron is ironically and interestingly enough, going to hamper the Trump administration. I mean, the repeal of Chevron or reversal of Chevron

is gonna hamper the Trump administration. And they will find that out. In past episodes, I've heard environmental law cases described as dense and boring. Are you anticipating any environmental law issues arising from the upcoming administration that could pique your interest more than these issues normally do? So yes is the answer.

Because basically when an environmental case is actually about environmental law, I find it pretty dense and boring. But when an environmental case is about something totally different, like administrative law, I'm pretty into it. Like you want to get into some superior and inferior officers and I'm pretty into it. Like you want to get into, you know, some superior inferior officers and I'm there for it. But I think that's probably skirting around what you actually mean, which is actually environmental law qua environmental law. Look, in truth, I find things dense and

boring when I don't understand them. Environmental law is hard. It is hard stuff. These things that I did care a ton about at the Department of Justice and you can ask all of the lovely folks in the Environment and Natural Resources Division, they would have, you know, huge super fun cleanups and all that. I'd be like blah blah blah, don't care. But if you have any animal smuggling, I am here for it. That press release will go out to every major DC reporter that I have on my list. So if one of those cases ever makes it to the Supreme Court, we will have wall to wall coverage here at Advisory Opinions.

If you smuggle endangered turtle eggs or there was a lot of eels, we had a lot of smuggling eel cases, David. So glass eels. And I am a friend of the glass eel. So for those of you environmental lawyers listening, and especially the prosecutors, you're an environmental prosecutor, you're doing the Lord's work, and I support you. Can I put a pin in an environmental law issue that's going to be interesting going forward? So you're beginning to see both on left and right, right for a long time, but now on the

left, you're beginning to see a lot of alarm being raised about our inability to build things in the United States, especially housing. And so what you're beginning to see is a movement, again, a lot of issues are popping up now that don't have strict left, right valence. You're beginning to see people saying, wait a minute, I love the environment, love critters,

but we're in a position right now where we're not able to build housing for our people. People are being priced out of housing. We just had a large increase in homelessness in the United States. There is deep frustration with the inability to build large new projects. I don't know how many billions of dollars

have been spent in California for high-speed rail. And I don't know that there's a single mile of working high-speed rail in California after spending billions. And so there is a lot of emerging bipartisan frustration with NIMBYism. And when you drill down to what is it that NIMBY, the NIMBY tribe uses to block development

again and again, it's environmental regulations. And so my colleague Ezra Klein is writing a book with Derek Thompson about sort of what it looks like from a more liberal perspective to have an abundance agenda, to have an agenda. You know, Matt Iglesias has written about 1 billion Americans, we need to be big, we need to be dynamic, we need to be growing. That doesn't mean you throw the environment overboard, but also maybe we have tilted the playing field a little bit too far in favor of delay,

blocking development, blocking expansion of housing, blocking expansion of industry, and it's starting to hurt regular Americans a lot. And so I think that that, watch for that. Watch for what is the, 10 years from now, where are we when it comes to environmental law and urban development? All right, we can make this the last one. All right. My name is Grady and it would be an honor to have my name on the podcast. Awesome. Yay, Grady. Okay, so you have mentioned on the cast a few times that the TikTok case is the first case in the new Cold War.

And I find that fascinating to think about. Are there any things, jurisprudential themes in the first Cold War that are worth highlighting? And are there any themes that we should be on the lookout for as conflict and tension continues across the Pacific? Oh, great question. That's a great question.

Yeah. I was actually just digging into First Amendment related cases through various conflicts in US history. The Civil War obviously had some, you go back to the Sedition Acts for the Adams administration, but thinking specifically about the Cold War, I mean, what you end up finding, maybe World War I is in some ways a better example of they start out very speech unfriendly, and then things get speech friendlier as the threats become sort of more understood, more known, less scary. And I'm saying that out loud and I really

hope that's not what we're about to do here. And it doesn't feel like what we're doing here, but it's almost a trend through all of those. Yeah, you know, we national, the collision between national security and individual liberty has been something we've dealt with from the beginning of this country. You had the same generation that ratified the First Amendment, passes the Alien and Sedition Acts. We have had this tension throughout. Gosh.

Thankfully, in the Cold War, we went through the Cold War without anything like Korematsu, which was the decision ratifying the internment of Japanese Americans. I feel like if you look at Cold War jurisprudence from 30,000 feet, we actually navigated that pretty well, pretty well. And I do think some of the Cold War precedents will turn out to be helpful. So for example, during Vietnam, the Supreme Court was actually quite good at protecting free expression,

even though we were in a shooting war far more deadly than either the Iraq War or the war in Afghanistan. But were any of those really national security implicating, right? So you have Tinker with the black armband and high school students. Okay, nobody thinks that maybe reaches a national security threat level. And by the time Texas V. Johnson comes around in 1986, because that's

where he burns the American flag at the 1984 Republican Convention, the whole thing's kind of scary. Well, you had, was it Coen v. California F the draft? Yeah. kind of... Well, you had, was it Coen v. California, F the draft. You had, oh gosh, what was the name of the case where the guy says, if I'm drafted, first thing I'm going to do when I get my rifles, I'm going to shoot President Johnson. And that was held to be protected speech. So we have had in the speech arena, and look, all of that seems very common sense to us

now. But a lot of countries and cultures, that would not be common sense at all. And I even see- Well, you go back to World War I, you're just handing out leaflets and you're going to jail. Yeah, World War I, we imprisoned people at large scale for opposing the war.

World War II- Thanks, President Wilson. Oh yeah, this isn't the remnant, so you can't have the Eurekae theme play when it's Wilson. And Justice Holmes. But we're feeling it in our hearts. We're hearing the Eurekae theme. But yeah, these are, and going to West Virginia v. Barnett, which was World War II, so the

Supreme Court got the internment of Japanese Americans very wrong, but it got free speech in West Virginia v. Barnett very right. Although Barnett's, what, three years after Gobitis where they got it really wrong first. They got it wrong first. And then a thousand, what religion were they again? What are they called? Jehovah's Witnesses. Jehovah's Witnesses, yeah.

A thousand Jehovah's Witnesses are assaulted between Gobitis and Barnett. Yeah. And Frankfurter's clinging on saying, nope, Gobitis and Burnett. Yeah. And Frankfurter's clinging on saying, nope, Gobitis was correctly decided, and he is yet a judicial hero to so many. Yeah. So we've had a history in World War I, tempted that way in World War II, tempted that way again during the Cold War

to use a national security justification to shut down free speech debate in the United States. I am very hopeful. Are we falling prey to that with TikTok? No, no. TikTok is an IQ test. Like, could you imagine? I'm walking in.

That's the sort of intellectual humility we like here at Advisory Opinions, and if you disagree with us, you're stupid. I mean, OK, no, maybe that's a little strong, although I did write that too. But, OK, I'm walking in to court. It's 1942 and I am there is a newspaper published by the Reich Chancellery and it is being distributed into the United States of America and we say you know we're not going to have

Adolf Hitler's newspaper. Adolf Hitler's newspaper does not have a right to publish and distribute in the United States. Now people, if they get, if they learn about, they can certainly learn about Hitler's ideology, they can certainly learn about what Hitler thinks, they have rights of access to all kinds of information about Nazis. But does the, does the, does a newspaper in Berlin published by the Nazi Party of Germany have a First Amendment right to publish in the United States?

Much less does it have a First Amendment right to sort of go in and let's say you have a subsidiary of the German newspaper that it can go in and edit the newspaper for pro-German talking points without the knowledge of the American people. I don't see that. Just don't see that. So Congress can ban BBC, BBC America. Congress can ban BBC America. Well, that's a really good question. I don't see the difference between the right newspaper and BBC America in terms of structure. Maybe you can say that Congress wouldn't have a compelling interest because there is no national security interest in banning BBC America.

But you know, imagine head of cabbage Liz Truss. We're just like, nah. Head of cabbage Liz Truss. Yeah, I think where I'm stumbling over is the compelling governmental interest in banning BBC America. That's what I'm stumbling over. But if they had one, no problem. If Britain was hostile to us, you would have to come because remember the act that is an

issue. They fought two wars. They burned our capital. That was a, you know, bygone, Sarah. Not here. But not on this podcast. And not in this district of Columbia. George Washington University?

That's right. In the district of Columbia that was scorched by the red coats. That's right. No, the problem is, I mean, this was the foreign adversary controlled, you know, the act depends on foreign adversary controlled messaging. And so right there with BBC America, you're, you're not a foreign adversary, but by no

means does BBC have a first amendment right in the United States. All right. And with that, oh, one more. Absolutely. David, I'm just wondering how our friendly neighborhood SEC supremacist is feeling after the playoffs. Oh my goodness. So why would you do this to me?

The pain, it is so... I paid him to be here. And here's what makes it even worse. So not only did the SEC fall flat on its face, I mean it wasn't even that close. Tennessee was manhandled by Ohio State. Georgia just was demolished. The only remaining SEC team is a fake SEC team and that was Texas. Like that's not real SEC. I agree. I mean they're not even the real UT. the real UT. Strong disagree slash that is sedition. But no, it's an NIL is a new era and it remains to be seen whether the SEC schools, which remember are very big schools that are located in not our richest states, except for Texas. It's one of those strange

phenomena where the colony becomes wealthier than the mother country. So you're a colony of Tennessee. I hate you so much. You're now wealthier, just like America's wealthier than Great Britain. But under the NIL regime, it's really difficult to see how some of the smaller states that have much less resources, because we're talking multi million dollar contracts are being handed out now. How they're going to compete over the long term in the SEC.

Really that's the model of the SEC in many ways Alabama Mississippi Tennessee Kentucky South Carolina. These are not our wealthiest states even Georgia Georgia, even though Atlanta is a financial center and wealthy, you know, wealthy urban area, I don't know how they compete with Texas, Texas A&M, Michigan. Good Lord. The alumni base of either Texas or Texas A&M is bigger than the GDP of some countries.

And you better believe they love themselves some football. So. The eyes of Texas are upon you. I'm nervous. Yeah, horns down, horns down. Oh my God, he was an OU guy. All right, thank you so much, George Washington University for having us.

We really appreciate it. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.

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