Advisory Opinions - Angry Cheerleader Gets a Supreme Court Win

Episode Date: June 24, 2021

There was a big win for student free speech at the Supreme Court on Wednesday. In today’s pod, David and Sarah talk all about the long-awaited decision in Mahanoy Area School District v. BL, where the court ruled in favor of a high school cheerleader who was suspended from her team after posting a profanity-laden Snapchat. Our hosts discuss what Justice Stephen Breyer’s ruling means for free speech for students going forward and how much of an impact on schools it will actually have. They then analyze Samuel Alito’s concurrence and Clarence Thomas’ lone “curmudgeonly” dissent. Plus, a quick dive into Lange v. California, the “hot pursuit” Supreme Court case that limits when and how police officers can enter a home without a warrant. Show Notes -Mahanoy Area School District v. B.L. -Lange v. California Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. We have Angry Cheerleader. The Angry Cheerleader case is in. As everybody already knows by now, Sarah, we were just a little bit of inside dispatch baseball. We were recording the Dispatch Podcast. Check it out. It's not quite as good as Advisory Opinions,

but it's still sterling podcast material. Check out the Dispatch podcast. But we were recording this Dispatch podcast yesterday and we were going a little bit long because we had a lot to cover. And I'm sitting there with sort of one ear and one eye on the Dispatch pod and then the other ear and eye on the Supreme Court.

And it was just shock and awe it was shocked after another hot pursuit takings from a union and then angry cheerleader i think that's the actual sound this room court website made um and i i remember i put it in the Zoom chat, all caps. We have angry cheerleader. I don't think Steve and Jonah were quite as excited. Did you see my face though? I didn't verbally react. My face though lit up.

I did. That was so funny. All right. We've got a lot. We have the angry cheerleader case to talk about. We have Lange, the hot pursuit case out of California, which I just love it being called the hot pursuit case because it was, wait, lukewarm pursuit? Tepid? Tepid.

Tepid pursuit? Bathwater pursuit. Yes. Bathwater, room temperature bathwater pursuit. Yes. Bath water, room temperature, bath water pursuit. Uh, we have a union case, which Sarah is just ready to talk about. Oh my gosh. And we're, we're going to tease that. And that's going to be more towards the end because she has stuff to say. And you don't want to miss it. The poultry. Think about the poultry. Yes. Think of the poultry. That's the, and the interesting thing about that case is it's a six, three or according to the ideological slash, you know, political lines that everyone told us we'd be seeing all the time. And it's the only one of those. So it's six, three along the GOP appointed and democratic appointed lines. appointed and democratic appointed lines and then we also have another case we're going to kind of sneak in the middle of the discussions um of mild interest at least to me appointments clause

but let's start let's start with the case that i've been looking forward to for so long and it's angry cheerleader um and i gotta say and i i gotta say to say, this is actually one of my favorite Breyer opinions that I've ever read. Because I thought he just... I wanted the court to uphold the Third Circuit and just basically say, once somebody's off school grounds and not doing a school activity, that there's nothing for the school to say about their speech, and there's everything for a parent or guardian to say about their speech. And the court didn't quite do that, and there didn't seem to be basically anyone on the court

who wanted to do that. But Breyer's opinion, I thought, was really good and very interesting. So for those of you, we got some new listeners. We have thousands of new listeners since I think the last time we talked about it. So I think we should walk through the facts a little bit. I would love to have you walk through the facts and then I want to like, I just want to talk about the Cocoa Hut.

Oh, you want to talk about, but that's part of the facts. That's right. So you walk through the facts and then I want to like, I just want to talk about the Cocoa Hut. Oh, you want to talk, but that's part of the facts. That's right. So you walk through the facts. I just want to make sure we emphasize the role that the Cocoa Hut played in this. Okay. All right. Okay. So here we go. So the cheerleader, the cheerleader, AC angry cheerleader goes by the initials BL in the opinion. So when I say BL, just know I'm referring to AC. So BL was a student at the Mahoney Area High School, which is in Pennsylvania. At the end of her freshman year, she tried out for a position on the varsity cheerleading team. She was also trying to be right fielder on a private softball team. And she didn't get what she wanted in either case. So she did get JV varsity.

And I love, I love the way Breyer phrases this. So she, it says, but she did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad's junior varsity team. BL did not accept the coach's decision with good grace. True enough. True enough. So on the weekend, so this is important, on the weekend, BL goes to the Cocoa Hut, and I'm not going to say anything more about the Cocoa Hut, but she goes to the Cocoa Hut, and she gets on her smartphone, and she posts two photos on Snapchats. And the

court describes what Snapchat is, and I'm going to just assume you know what Snapchat is, but she put the images on her story. But honestly, having Justice Breyer describe what Snapchat is did bring me also joy. Yes. Well, you know, the funny thing is I like the way when it's just put into sort of a flat statement of facts. It just seems so benign. Yes. A social media application that allows users to post photos and videos that disappear after a set period of time.

True enough. Yep. So here I'll just read from the description. The first image BL posted showed BL and a friend with middle fingers raised. It bore the caption, and now I will censor it a little bit so we don't get the explicit rating. F school, F softball, F cheer, F everything. The second image was blank, but for a caption which read, love how me and this other student get told we need a year of JV before we make varsity.

But that, that, I think she said the, doesn't matter to anyone else. The caption also contained the dreaded upside down smiley face emoji, which I think is that similar to a distress symbol like an upside down flag, Sarah? It's more like you're smiling sarcasm. Like, isn't that ridiculous? But you're laughing, but you're not really laughing. Yeah. Like funny, not funny're not really laughing. Yeah. Like funny, not funny. Okay.

Okay. Gotcha. All right. Thank you for interpreting. I appreciate that. So, of course, you know, even though it's Snapchat and even though this stuff is supposed to disappear, the image spread. I like this. One of the students who received these photos showed them to her mother, who was a cheerleading squad coach. You know what we call those people?

Narcs. Sarah? Narcs. Snitches. Snitches. So one of the students snitched to her mama, and then several cheerleaders and other students approached the coaches, quote unquote, visibly upset about the posts. Visibly upset. There was a very short discussion in an algebra class taught by the coaches. And the next thing you know, the coaches suspended BL from a JV cheerleading squad for the upcoming year. BL did not take it lying down, as she should not have taken it lying down. And she filed suit.

She won. She specifically and dramatically won in the third circuit. And one of my favorite circuit court opinions that I've read in a long time, which basically said in so many words to the school, you're not this cheerleaders parents. And when this cheerleader is not at school or on a school activity, it's hands off. And it was a pretty striking ruling. Court accepted cert.

And then we have the resolution. But I'm getting way ahead of the Cocoa Hut. Okay. Here's my thing about the Cocoa Hut. There is absolutely no need for the Cocoa Hut to be mentioned in this opinion at all. You could easily say that she went to a convenience store with her friend, but also it doesn't actually matter where they were. The whole point is that they just weren't at school. We don't need to know that they were

at a convenience store. We definitely don't need to know they were at the Cocoa Hut. And so the only reason to include that they were at the Coco Hut, which, by the way, is included twice in Breyer's opinion, is because it is hilarious and charming for no particular reason. So that weekend, BL and a friend visited the Coco Hut, a local convenience store. bl spoke under circumstances where the school did not stand in loco parentis and there is no reason to believe bl's parents had delegated to school officials their own control of bl's behavior at the coco hut i am endlessly pleased with this um you missed another alternative this opinion is sponsored by coco hut right i mean it's free advertising i want to go to the coco hut and do some snaps middle fingers up um another thing to

notice about the fact section is um obviously his description of snapchat is pretty sterile and yet one has to think through how this went down in chambers. He has four clerks. How many of the four already had Snapchat on their phone? Which one got to show Justice Breyer Snapchat? Did they use filters? Basically, I believe that Justice Breyer has done all of the Snapchat filters with his clerks. and I think we need those photos. Somebody has a screen record of Justice Breyer with like a chipmunk filter talking about this opinion. It exists. I'm convinced it exists somewhere. Last thing on the facts section.

Interesting little split here among the justices. Interesting little split here among the justices. Justice Breyer spells out F-U-C-K in each of its usages. Justice Thomas does F asterisk, asterisk, asterisk. Uh, and Justice Alito doesn't do it at all. He never actually cites what she said in his concurring opinion. So real split over when and how the court uses profanity in a fact section. Yeah, that's interesting. I didn't even notice that. That's what I'm here for. That's a sharp eye. Thank you. I didn't even notice that.

Huh. That's what I'm here for. That's a sharp eye. Thank you. So Breyer's opinion. So Breyer does not do and the court does not do. And the actual, the vote was 8-1 in the outcome with Alito and Gorsuch filing a separate concurring opinion. And Thomas with one of his students' speech curmudgeonly, you kids get off my lawn dissents that we can talk about. But I like the Bre off school grounds. And it kind of feels like the reason why they didn't is they just thought, you know,

I don't want to try to foresee all the fact patterns and that we could foresee, you know, especially in the context of some really aggressive bullying or harassment that the school would have some interest there. Or, for example, if they're using school technology. So they didn't want to try to walk down the road of dealing with all of the possible facts. But if you read this opinion, it's pretty clear that the school is going to have pretty narrow ability to regulate students off campus.

But before we walk through that, Sarah, can I just tell you a pet peeve? Please. So Justice Breyer walks through the basics of school speech, of student speech in the K-12 arena. And so it talks about the tinker, which says that you don't shed your free speech rights at the schoolhouse gate, but you can't create a material disruption of classwork or substantial disorder or the invasion of the rights of others. Okay, got it. It talks about how you can't utter indecent, lewd, or vulgar speech during a school assembly on school grounds. Got it.

That's the you know the bethel case um that the school has greater ability to regulate speech that has um that bears the impromptu of the school such as that which appears in a school-sponsored newspaper that's the hazelwood school district case got it but then then sarah he says that the school, this specific category that student speech that schools may regulate, speech uttered during a class trip that promotes, quote, illegal drug use. Yes. I also noticed that in discussing the categories of speech, the other ones were categories and one was just really bong hits for Jesus. Yes. Yes. And it's a speech uttered during a class trip that promotes illegal drug use. See Morse v. Frederick. That is the famous bong hits for Jesus case. is the famous bong hits for Jesus case. Nobody knows what bong hits for Jesus means. It was a joke. It was a joke. It was supposed to be funny. And so really what the things, oh gosh, that's my,

there are a few in this sort of golden era of free speech that we're in right now in Supreme Court jurisprudence, there are a couple of outlier cases that just drive me batty. And bong hits for Jesus is one of them. How bong hits for Jesus, which was a banner, by the way, unfolded off school grounds while watching the Olympic torch pass by, how that can be regulated and F cheer, F everything can't. Don't just, okay. Anyway, I don't want to go down that rabbit hole, but here's what I really liked. So if I wasn't going to get all of a victory in this case, that the way that Breyer walked through this, I thought was really helpful, Sarah. And it's Breyer, so we get multiple factors, right? But these were clear factors. So he says, first, the school will

rarely stand in relation to off-campus speech, will rarely stand in loco parentis, which is this doctrine that says that the school is standing in the place of parents. And that's what gives the school broad ability to adopt a certain curriculum, require your attendance. I mean, in loco parentis, it's almost like your kid is a football

and you're handing the football off to the school when the kid goes onto school grounds, not entirely, but there's a lot of transfer of authority there. So he says, first, the school will rarely stand in loco parentis. Second,

he says from the student speakers perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech include all the speeches student utters during the full 24 hour day. So he's reminding us of how sweeping in scope it would be to grant the school normal, sort of normal speech policing powers on that 24-hour day. And he says that by default makes us more skeptical. And then I liked number three the most. The school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus. America's public schools are the

nurseries of democracy. Our representative democracy only works if we protect the marketplace of ideas. Sarah, if I was sitting in a Pentecostal church when those words were said out loud, I would have gotten out my hanky and waved it in the air because that sings. And I love the formulation that the state actor here has an interest in protecting the First Amendment. Loved it. Anything stand out to you in this initial

phase of the opinion? I was disappointed. Oh, well, you wanted the categorical. I was disappointed because I actually maybe I disagree with you because of the effect that I think Breyer's opinion will have, not because of any particular beef with the opinion itself. I don't even have a beef with the not categorical. I wanted the categorical. I did.

As did I. But even short of the categorical, I did not feel like this was strong enough in the effect that it will have on schools. Should schools want to promote free speech with their students and discourse? Yes. Do they? No, of. So should be in their interest. Okay. But like, welcome to the real world. And it's not. Um, and I don't think this provides nearly enough guidance to schools to lay off. And I wish, um, I wish that even if you're going to say it's not categorical, they had broken it out into categories nonetheless in sort of a Justice Jackson tripartite framework. Justice Jackson in the Steele seizure case was talking about presidential power. And he says the president's power is at its zenith when he acts in concert with the legislative

branch. And then, of course, that without that, it's not. And then when the legislature has been silent, it's like this in-between area. I think we needed something like that here, even if it's not categorical. And I think that the tripartite framework in this case is a quadratite framework, whatever. Making up words. Yes, the quadratite framework. Yes, the quadratite framework. You have on school time or property speech. And I'm going to include Zoom classes here.

I think it's interesting that this came right after COVID because I would consider that, regardless of the fact that you're off campus, on-school time, which is in a school classroom via Zoom. So on-school time property, speech concerning the school. On school time property, speech not concerning the school. So in this case, that would be F cheerleading would fall into part one, F the draft would fall into part two. would fall into part two. Part three, off school time property concerning school. That is this case, F cheerleading at the Cocoa Hut. And then part four, off school property, not dealing with

school at all, wearing an F the draft t-shirt to the Cocoa Hut on a Saturday. I think if Breyer had broken it out into those four and said, look, the school is at its most powerful in curtailing speech in that category one. That doesn't mean they can even do that all the time. There still has to be a disruption, but they have the most leeway in that bucket, if you will. They have some leeway in the second bucket, again, under that disruption framework. In the third bucket, they have very, very little. Is it possible? Sure. Is this the case? No. And then in bucket four, I think you should have said, we cannot think of an example where a school could have any interest in curtailing a student's speech that is not on school time, not on school property, and not concerning a matter related to the school's administration or function. least provided schools some framework and students and parents, frankly, some framework by which to approach their free speech rights.

I am very disappointed that this was high on rhetoric and low on accountability and on guidance. See, I took it as having more accountability and guidance than that. I basically interpreted the opinion, and time will tell on this, as we got spooked by the bullying harassment scenario more than anything else. That we didn't want to create a rule, because bullying and harassment is harder to fit in some of those buckets, because it's not directed at the school. It might be directed at another student, but for reasons that have nothing to do with the school at all. And they're just, they just live close to each other. This was part of my beef though, is that they basically

disowned the buckets. They in fact said that there were things in between the buckets and the buckets were hard to define. And like, I don't think I agree with that. I took this, so I read this as through my older eyes of my old religious liberty, free speech litigation eyes. And I kind of put it in buckets like this, which are critiquing the school. You better really show that this is melted down the place before we're going to get you we're going to we're going to do anything because critiquing the school is constitutionally protected activity in absence of just really extraordinary evidence you can critique the school um a political statement hands off you know general sort of even if someone's really controversial and contentious hands off um so if i'm if i'm a free speech litigator and the school takes action because

my off-campus speech um you know i engaged in some sort of provocative political speech on instagram off campus and not on school hours then I'm taking that case every time. I'm taking that case. And then there's this category of, what if I'm using school technology? Or what if what I'm doing is really trying to harass and intimidate a specific individual? Then you're going to see these First Amendment litigators

slowly backing away from those kinds of cases. But they will jump on the other categories, critiquing the school, including teachers, administrators, etc., or engaging in even provocative speech about politics, culture, religion, etc., which, again, I'm with you. I wanted them to say, this is the parents' domain. This is where parents rule. This is not where the school rules. I'm with you. But if I can't have that, and I couldn't, nobody agreed with me on the court, then this is, I don't know, maybe Breyer snowed me. Maybe he sang the song so well that I didn't realize that the lyrics were more tepid

than I thought. So let me read you some sections of Breyer's opinions that I liked. As we said in Tinker, for the state in the person of school officials to justify prohibition of a particular expression of opinion,

it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. It might be tempting to dismiss BL's words as unworthy of the robust First Amendment protections discussed herein, but sometimes it is necessary to protect the superfluous in order to preserve the necessary,

citing, by the way, a Justice Holmes dissent. We cannot lose sight of the fact that in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of privilege, these fundamental societal values are truly implicated. Again, a lot of high-flying rhetoric. That's nice. I agree with all of that. I do not think it provides schools anything moving forward. I think that you can read into that whatever you want, actually, on both sides. And so this brings me, by the way, to your friend on Twitter, Popat. When he gave his Twitter version of each opinion, and I want to move after this into the Alito concurrence and the Thomas dissent. Majority opinion. We rule for student speech, but not in a way that effectively stops

censorship. Alito, I hate free speech and therefore will only concur resentfully. Thomas, beat all children with sticks. So true. And I stared at that tweet. It was wondering like why I found it so both funny and infuriating. And I realized it's because there's a concurrence missing from this. I wanted a Gorsuch, probably Gorsuch, maybe Kavanaugh concurrence that was on the other side.

You know, if Breyer's sort of in the middle on free speech and then Alito's next to him on the right and Thomas is next to Alito on the right, I wanted someone on the left of Breyer saying, let's give some specific examples of things that schools think they can ban and should not. They did this during the oral argument and I I thought it was very effective. And I wish that every school principal would have to read some of that oral argument transcript to see examples that even their own lawyers said they could not prohibit, but which I believe schools are punishing or prohibiting all the time. So I wanted that strong pro-free speech concurrence. Again, not saying necessarily, here's the categorical rule,

but more to the extent that schools don't feel like the court's opinion gives them guidance. Let's walk through exactly what this will mean in practice. That didn't happen. That's why I'm disappointed. And that brings me to Justice Alito's concurrence that I found bonkers town i i'm so i'm so glad you said that i i'm i was dying to hear what you thought of the alito concurrence

bonkers town i say so justice alito starts his concurrence by saying like how did we get here why should enrollment in a public school result in the diminution of a student's free speech rights? The only plausible answer that comes readily to mind is consent, either express or implied. The theory must be that by enrolling a child in a public school, parents consent on behalf of the child to the relinquishment of some of the child's free speech rights.

What? No, no, no, no, no, say I. So first of all, public schools are mandatory. There are criminal penalties if you do not send your child to school. And if you cannot afford a public school or to homeschool your child, and yes, I do mean afford because you can't work if you're homeschooling your child, then you must send them to a public school. But not only that, David, because I think I might feel differently if we as a country had a charter school model as our public schools where you could pick which school to go to and the schools were funded by the government, but there was some tangentialness to that. Not only are you required to go to public school, you don't get to pick which school you go to.

It is based on where your house is. I find it offensive, the idea that you can waive your First Amendment rights on something you have no choice to do in the first place, or worse, that your parents are doing it for you? Absolutely not. So he continues, the question the courts must ask is whether parents who enroll their children in a public school can reasonably be understood to have delegated to the school the authority to regulate the speech in question. Now, okay, that's fair because at the Cocoa Hut, I think it's very clear. And Alito says they clearly did not delegate to the school to regulate their child's speech at the cocoa hut. I think that that framework is different than what he says right above about this waiver argument almost. I think that yes, when you attend school, it's not a waiver of your

First Amendment rights or that the parents somehow consented to that it's the delegation issue of the parental rights that's different than the state being able to curtail your first amendment rights as the state because they're the state because your parents consented to having no first amendment rights right right sort of this idea that because i've theoretically chosen to send my sin to send my kids to public school that i have voluntarily given the state part of my authority over my you know over the the care and upbringing of my children, when they're not in school, when they're at the Cocoa Hut, I was mystified by that. I mean, there's a thing called unconstitutional conditions. The government can't require you to give up X constitutional right in exchange for Y. What I think is so funny here

is that there's no Y. You must send your kid to public school and we're taking your First Amendment rights. That's not an unconstitutional condition. That's just unconstitutional. Yeah. And the interesting thing is, so he walks through all of this and you're thinking, okay, we're going to get to a part where Alito is clear, where the lines are clear. Because why are you concurring? Why are you differentiating yourself from Breyer here? Because normally you don't differentiate yourself to just sort of wax eloquent philosophically. And yet, when they took so few cases, 68 cases this term, there's a lot of waxing that's gone on this term.

True. But listen to this closing paragraph. There are more than 90,000 public school principals in this country and more than 13,000 separate school districts. That's a lot, by the way. The overwhelming majority of school administrators, teachers, and coaches are men and women who are deeply dedicated to the best interests of their students, but it is predictable that there will be occasions when some will get carried serious First Amendment concerns and school officials should proceed cautiously before venturing into this territory. That's more tepid than Breyer. I find it bizarre that they believe

that the school is, quote, getting carried away. That is not how we treat other government officials. That is not how we talk about police officers, for instance, in excessive force cases or no-knock warrant cases who violate someone's Fourth Amendment rights. This is your right to free speech. And for some reason, because they're teenagers,

everyone thinks this is like a romp in the park. It's not. You know, back in the day, BL would be married, having kids, running, back in the day, BL would be married, having kids, running her own household, and her husband would be off at war. Right. Says I. We can't expect...

Back in the day, her husband is freezing at Valley Forge. That's right. We can't... We can't infantilize teenagers and then complain when they are infantilized and act entitled and that they don't understand what's going on when we don't hold them to any type of adulthood standard whatsoever, including even the exercise of their own rights. And the idea that it's just

the school getting carried away. It's not, it's the school wanting to have the path of least resistance to run their school more like a prison where these students have given up all of their rights and the school is simply trying to maintain order, which is not actually the purpose of an to be quite disordered at times and to benefit from disagreement, even vehement disagreement, even disagreement that involves some F-bombs. But Alito has this line, the school may suppress the disruption, but it may not punish the off campus speech that prompted other students to engage in the misconduct. If listeners riot because they find speech offensive, school should punish the rioters, not the speaker. In other words, the hecklers don't get the veto. So he was quoting from the transcript of the oral argument there in a way that I found very helpful. Again, they use specific examples in the oral argument that I wish they had used here because I think the school administrators would benefit from very specific examples.

Yeah, there is, you know, a couple of things. And then we've given BL a lot of attention. We could do an hour on BL. I know. And we still have to talk about Thomas. But there's a couple of things that connect with sort of the larger controversies right now. And one of them, and let me just go back to the got carried away point. There's a lot of energy in some of these Supreme Court cases that are like, well, you know, bless her heart.

Miss Betty Lou Smith is just doing her best with these kids. And, you know, we don't want to put too much on, you know, poor old Miss Betty Lou Smith is just doing her best with these kids. And we don't want to put too much on poor old Miss Betty Lou Smith. And sort of this vision of the hardworking, the overworked, understrained public school teacher who's just doing their best. And look, fair enough. There's lots of hardworking, overworked, strained public school teachers doing their best. And look, fair enough. There's lots of hardworking, overworked,

strained public school teachers doing their best. There's also a serious public school bureaucracy. There's also a, this is compulsory for, especially if you have no ability to choose alternative education. And as you said, there's a giant desire for just order, for peace and quiet, for order. And so we need to stop- Unlike what Justice Breyer said, there is actually no incentive for the school to encourage disordered speech. We need to stop idealizing the state actors involved and evaluate their actions on the, on based on the facts. Um,

and the other thing is this is kind of connecting with a lot of what we're, you know, what you were saying about some of this education can be messy. This connects a lot with a lot of the roiling arguments about curriculum right now, where it's not just that, um, teacher that,

that parents don't want students be taught things that are distressing, that are outright, or it's not just that they don't want students to be facing outright racial discrimination. It's that they don't want to be exposed to distressing ideas. And it's devolving to the point now where there's contentious school board meetings in my own county about when can you expose kids to pictures from this desegregation era? parents in the South shouting angry things at Black students who are desegregating schools, under-armed military protection, that that is deemed too upsetting for children to see. Somehow, I don't think that paintings of the Battle of Bunker Hill are deemed too upsetting for children to see, or pictures from D-Day are deemed too upsetting for children to see. But we're in this mode now that's spreading around the country that says anything that

is upsetting to people, if it's upsetting to people, it has to be regulated and it's in school. And that's a very dangerous road to go down. And dare I say, it's more than a little snowflakey, more than a little. More than a little snowflakey? More than a little? So that takes us to Justice Thomas' dissent, which, again, as Popat so correctly summarized,

beat all children with sticks. You think, by the way, that he just means that Justice Thomas was like, yeah, this speech can be punished. But no, actually, it's more like beat all children with sticks. So Justice Thomas says the majority is entirely ignoring the relevant history. I would begin the assessment of the scope of free speech rights incorporated against the states by looking to what ordinary citizens at the time of the 14th Amendment's ratification would have understood the right to encompass. That's odd to me for a few reasons, David. One, the First Amendment is incorporated against the

states in 1925. What does that mean, by the way? So the idea that the First Amendment says Congress shall make no law. Through the 14th Amendment, a post-Civil War where the whole agreement between the states and the federal government is really reshuffled. In 1925, the court held for the first time that the state actors are also bound by the First Amendment through the 14th Amendment. So I don't even understand what it means to look at the scope of free speech rights in schools that are state schools at the time of the 14th Amendment's ratification. Because the whole point is that the First Amendment wasn't incorporated against the states so that these students didn't have First Amendment rights against the school. I'm missing some argument here, but anyway, he's using an example that is delightful in its own way. Perhaps the most familiar example applying this rule is a case where a student, after returning home from school, used disrespectful language against a teacher. He called the teacher old, in the presence of the teacher and some of his fellow

pupils. The Vermont Supreme Court held that the teacher could discipline a student for this speech. Remember, it was not at the school because the speech had a direct and immediate tendency to injure the school, to subvert the master's authority and to beget disorder and insubordination. and to beget disorder and insubordination. Nope, nope, nope, nope, nope, nope. Many nopes. I have all the nopes. This case, by the way, is from 1859. So before the 14th Amendment, the First Amendment isn't incorporated. There's no First Amendment right here. So I'm guessing this was like a civil lawsuit, maybe a tort lawsuit. I'm not quite sure. I didn't go look it up. So this has nothing to do with what we're talking about here as far as I'm concerned.

Also, the idea that the U.S. Supreme Court was particularly protective of free speech rights in 1859, let alone the Vermont Supreme Court, and that that's what we're going to base our current free speech rights on, I find to be concerning? Yep. You know what is my least favorite form of originalism, Sarah? We'll call it the doctrine of 19th century infallibility. Yes, yes. This is different than what a word meant at the time.

This is what a right encompassed. These are the people who like, what, 40 years earlier had passed the Alien and Sedition Acts? What? This is my paradigmatic example that the early American leaders were not infallible interpreters of the Constitution that they ratified.

Because then you're going to have to say that, well, the Alien and Sedition Acts were totally fine. They were totally fine. Why were they fine? Because they were passed so close to the First Amendment. No, I mean, you know, one of the salient realities about the Bill of Rights, it was enacted in large part because the early generation didn't trust each other to uphold the ideals of the

republic. And so they knew well enough that we'd get to squabbling and we'd already gotten to squabbling really, really fast, and we need to secure some liberties against the majority. And then to then say, well, you know, in the 19th century, they did this. Well, maybe they violated the First Amendment in the 19th century. You know, maybe these decisions were wrong. And so that the originalism should not be construed as the doctrine of 19th century infallibility i mean this is something that i remember when i had some somebody shouting at me about blasphemy laws in the early 19th century in a in a clubhouse discussion that's a doctrine of 19th century infallibility um no just because something was accepted by courts in the 19th century does not therefore mean

ipso facto it is fine under the first amendment that it's yeah that's my least favorite kind this is why by the way i'm a textualist not as much an originalist i think it is informative so this is the rule that justice th Justice Thomas would have adopted all by himself. She's standing alone. A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty, or students, or its programs. If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it. Beal's speech occurred off campus, although, by the way, he says, I don't know that it should count as off campus because someone could have seen it on campus at the time, and therefore it's more like she made a flyer and made lots of copies of it and distributed it on campus.

So as much as I'm curious about Breyer's clerks having him use Snapchat for a little while, I am very curious about Justice Thomas's clerks showing him how to use Snapchat. That analogy is strained to me. The lesson here, practitioners, if you're going to walk into the Supreme Court with a student speech case, you have eight justices that you're arguing to and one very angry principal with a paddle in his hand. It's true. So I think that's an odd rule. I do, I mean, at least even for Justice Thomas, I think the word proximate is doing some work there. We haven't done a whole pod on causation, but there's but for causation and proximate causation. Proximate causation here is a higher standard. Snapchat, nobody would have complained at the school. It's that like her Snapchat actually was the cause of the whole thing. That's at least better than but for.

So yeah, Justice Thomas wants to go back to beating the children with sticks. He doesn't understand why we're not beating the children with sticks and thinks that social media should count as on-campus speech, it appears at times. Yeah, yeah. Justice Thomas, students, students, Justice Thomas is not your friend. That's right. Oh, also that because it was an extracurricular activity, I actually found this to be the most persuasive part of his dissent that she had consented to the curtailment of some of her speech rights by wanting to join the cheerleading squad in the first place. As he says, uh, for example, a profanity lace screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student

than when done by the captain of the football team. Um is the one part where I'm like, well, yeah, I do think it's a little different that both the speech was about and the punishment was limited to the extracurricular activity, not she wasn't suspended from school for the year. That did come up at oral argument, but nobody really, except Justice Thomas, clearly, was particularly moved by it. Yeah, yeah. So, do we have time for the other three? Wait, wait, can I just read one more thing? Oh, please, please, yeah.

This is also Justice Thomas. The majority fails to consider whether school officials will have more authority, not less to discipline students who transmit speech through social media. I don't even need to read the rest of that. You know where it's going. More authority. More authority. Yeah. Yeah. Okay. So yeah, David, I'm coming around to your idea here that the idea that we were going to do for opinions today was folly, folly, pure folly, folly, like justice Breyer thinking that he has given schools guidance on free speech, folly, but we can. But we can do our California misdemeanor case. Okay. That one, we got to do this one.

So first of all, we could spend an hour talking about how you pronounce L-A-N-G-E. Is it range with an L? Or you've been pronouncing it like Lange, like Katie Lange. Yeah. I've always pronounced it Lange until I heard you say Lange. And then I thought, you must know something I don't know. So I switched. Yeah. I don't. I don't know anything. Okay. Well, let's cover our bases. You call him Lange and I'll call him Lange. Great.

Yeah. All right. So let's do a little bit of facts here and we've talked about this one um fun little you know one thing i like about both the cheerleader case and this case is how just sort of silly frivolous facts have ended up at the supreme court of the united states deciding major or kind of kind of sort of deciding major constitutional issues. And this is Justice Kagan writing, so you already know it's going to be so well written and incredibly delightful. Oh, yes. It is so good. It starts, The case began when petitioner Arthur Lang drove past a California Highway Patrol officer in Sonoma.

Lang, it is fair to say, was asking for attention. He was listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail Lang and soon afterwards turn on his overhead lights to signal that Lang should pull over. By that time, however, Lang was only about 100 feet, some four seconds drive from his home. Rather than stopping, Lange continued to his driveway and entered his attached garage. The officer followed Lange in and began questioning him, observing signs of intoxication. The officer put Lange through a field sobriety test.

Lange did not do well, and a later blood test showed that his blood alcohol content was more than three times the legal limit. So essentially what we had was evidence of a misdemeanor followed by a flight. And flight is a little bit of a generous term here. It was evidence of a misdemeanor followed by a 100-foot drive. And the question was... Flight is flight, David. Quit siding with the criminals. I'm sorry. I'm sorry. Law and order, Sarah. Law and order. Anyway, so he drives this 100 feet,

and he's, you know, and so, you know, he goes 100 feet. He didn't turn over. It's unquestioned, he did not pull over immediately. So he did not comply with the lawful order, signal, or direction of a peace officer. So that was also a separate misdemeanor. So he had the misdemeanor that he had the probable cause that he was committing some sort of misdemeanor with the way he was driving. Then he had probable cause to arrest him for a misdemeanor, failing to comply with the police signal. So their question was, when you're suspecting someone of committing a

misdemeanor, can you just go ahead and enter their home in sort of this hot pursuit exigent circumstances formulation? And to make a long story short, because I'm very eager to hear what you have to say about this, and then I have a mini rant on a side topic. To make a long story short, because I'm very eager to hear what you have to say about this, and then I have a mini rant on a side topic. To make a long story short, basically what Kagan says is, look, misdemeanors are lots of different things. Some of them can be actually somewhat serious, such as there's such a thing as many, as she says, many perpetrators of domestic violence are charged with misdemeanors, despite theness of their conduct and that a felon is not always more dangerous than a misdemeanant and so to draw a bright line that says that you're not going you cannot uh enter a home under hot pursuit of a misdemeanant is wrong but at the same time saying just because the misdemeanor is his fleeing means you have

carte blanche to enter is also wrong because some of these misdemeanors are ludicrous i like her cat i like her examples in california it is a misdemeanor to litter on a public beach and to negligently cut a plant growing upon public land but my favorite to artificially color any live chicks or rabbits you know you know that's easter right like chicks and rabbits the only thing that can apply to is that people were dipping baby chicks and rabbits into vats of like the the easter egg coloring that i mean honestly that should be a misdemeanor i don't think that's anything to laugh about that's cruel but the way it's written is pretty funny the way

it's written is very funny but leave the chicks alone please yeah um and so what we end up with to make a very long story short is a non-categorical rule that is heavily weighted towards permitting police to enter a home if someone has fled. The fact that they're fleeing doesn't mean automatically that you can follow them into the home. Doesn't automatically mean it. follow them into the home doesn't automatically mean it. But as I read it, Sarah, it seems to kind of mostly mean it unless you're following somebody who's done something silly and the circumstances indicate that there's no reason

you just can't sort of hang around outside the house and get a warrant, which is not the brightest line of rules here, quite frankly. But I'm very eager to hear what you think about it. I have so many things about this case. I have questions, I have feelings, I have thoughts, I have observations. So let's start with just some vocab lesson. We talk about amici on this pod from time to time. And when we talk about amicus briefs, we're talking about non-parties to the case that write these nice little like, yeah, you go girl briefs, or I have

another theory of this case briefs, or just like, here's a history of 14th century feudal property laws, fun facts. Those are amicus curiae to the court, friend of the court. In this case, you will see amicus throughout it because amicus curiae is actually still meeting friend of the court and it is still a non-party to the case. But in this case, the non-party was actually the attorney arguing the case. So what happened is California declined, refused to argue that they should have the authority to pursue Mr. Lange into his garage after they lost at the lower courts. Lange files his cert petition.

California was like, never mind. And the court actually appointed a lawyer named Amanda Rice to brief and argue the case. It is traditional when that happens. That includes a nice little sentence here, and it follows this format. We appointed Amanda Rice as amicus curiae to defend the court of appeals judgment. She has ably discharged her responsibilities. They almost always lose. There's a reason that the state declines to pursue their argument here but it's fun because they generally appoint former supreme court clerks who are young and would never have a chance to argue before the court their associates at a law

firm they've maybe like not even taken a deposition and now now like it's their time in the NFL big leagues. Remember that guy, by the way, they found off LinkedIn who was like a financial planner. And then he was the quarterback during COVID. Like that's kind of what this is. And sometimes like that guy was, they're awesome and they do a wonderful job and it shows that associates should get more responsibility. So that's number one, just fun facts. And by the way, this happens in another case, one of the two cases that we will not get to today. And we will talk about that amicus later

because David, I know this will shock you, but I know that amicus, the other one for the Yellen case. What? I know. No. I know. It's crazy. What are the odds?

So we have also, I think it is worth revisiting. We talked about another warrantless entry case this term. This is our second warrantless entry case, which is unusual. It's not like we just have, it's not like immigration or EDPA, like sentencing standards or whatever. It is weird to have two warrantless entry cases. That last one, remember, was the wife who calls about her husband having the gun, and they go to the house under a, quote, community caretaking exception. And what the court found there was there is no community caretaking exception, but there's still exigent circumstances. And the exigent circumstances can be that you thought someone was going to hurt themselves or someone else in the house, et cetera. So we actually have sort of the same thing going on

here. The lower court held that you could go into Lange's garage under a hot pursuit theory. Right. Regardless of how- That was the exigent circumstance. That was the exigent circumstance. And no matter how hot it was. Interestingly, the QP before the court though is really different. It's whether there is the misdemeanor versus felon distinction. And that gets to a weird thing that happens in this case. So this case was technically unanimous, but I want to get to Robert's

concurrence in the judgment later because it's a dissent. It's a dissent. And I don't I actually don't even even under the technical concurring in the judgment. It's odd. So, OK, so what? Like now let's get to the meat, some potatoes. The question is whether there is a categorical warrant exception when a suspect misdemeanor flees from police into his home. Under the usual case-specific view, an officer can follow the misdemeanor when, but only when, an exigency, for example, the need to prevent destruction of evidence, allows insufficient time to get a warrant. The appointed amicus asks us to replace that case-by-case assessment with a flat and sweeping rule, finding exigency

in every case of a misdemeanor pursuit. In her view, those entries are categorically reasonable regardless of whether any risk of harm materializes in any particular case. The fact of flight from the officer is itself enough to justify a warrantless entry. is itself enough to justify a warrantless entry. That, by the way, is exactly what Roberts adopts in his concurrence, which is actually a dissent. He says the fact of flight is the exigency, and therefore you can have the warrantless entry if you are in pursuit. Now, you can't say they fled and now I need to go find them later, at least how I read Roberts. But if you're pursuing them, that is the exigency and you can go in and find them.

However, the majority says our Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanor misdemeanors flight. That approach will in many, if not most cases, allow warrantless home entry. When the totality of circumstances shows an emergency, eminent harm to others, threat to the officer himself, destruction of evidence. By the way, that's a big sweeping one. Oh, that's my rant. Let. OK.

Escape. Put a pin in that. The police may act without waiting. And those circumstances include the flight itself. So the majority's holding here is that you need flight plus exigency. Roberts just wants to do flight. And then you have the delightful Thomas concurrence, which is like, yeah, yeah. But let's talk about what you get, even if you win this. So we haven't talked a whole lot about the

exclusionary rule and how it's totally made up, but so a police officer goes into your home. He has no warrant. He has no business there. There's no exigent circumstances. goes into your home. He has no warrant. He has no business there. There's no exigent circumstances. You see this on Law & Order all the time, right? He gets something he shouldn't get. It's the bloody knife. And your lawyer says, move to exclude. He didn't have a warrant. He couldn't go in there. And that's what the remedy is for a warrantless search. They shouldn't have gotten it. And so you can't use it against the defendant at trial. Well, here's the problem.

There's nothing in the Constitution about that remedy. It is entirely a creation of sort of that 1960s Warren Court, criminal defendants need rights in our judicial system. And everyone has sort of adopted it because what is the alternative? A civil lawsuit? Like, okay, you go to jail for evidence they never should have been able to get in the first place, but they got it illegally.

You go to jail and then you sue the officer for violating your Fourth Amendment rights. Now, on the one hand, you can argue, well, we don't like justice was done. You were guilty. There was the bloody knife. So why are we excluding the evidence of your guilt? Maybe the civil lawsuit is more appropriate. And in fact, it makes for a fascinating debate in your 1L crim law class, because at first

you're, you know, you're like, well, I mean, but law and order, right? You have to have the exclusionary rule. There's a real argument that it undermines justice. In fact, there isn't an argument. It does undermine justice to have the exclusionary rule. The question is whether protecting fourth amendment rights is more important than always getting justice in every case. And so it's an incentive to respect Fourth Amendment rights, because otherwise the police officer won't get that in. But the argument against that is, yeah, the police officer doesn't care, though, that much if he convicts you. So it's not really affecting his incentives. Anyway, we could do a whole other podcast on the exclusionary rule. But Justice Thomas says

that he believes there should be a categorical rule in a fleeing, any sense, felon or misdemeanor, that if it is found not to have the exigency, that second piece of exigency needed to go in warrantlessly, that the exclusionary rule doesn't apply. And what's fascinating about that is that if anyone had joined that, if that's the direction the court is interested in going in, you're going to end up with interesting, very confusing carve-outs from the exclusionary rule where judges are going to say, okay, the Fourth Amendment was violated, but there are these times when you don't get it excluded, where you just have to bring that civil case but see qualified immunity against the

officer um it would make for i think a very messy criminal justice system unless you just say no more exclusionary rule at all i think the worst outcome is exclusionary rule sometimes and not other times and we don't know when and also qualified immunity and let's just see what happens. Well, you know, okay. So are you ready for my rant? I'm ready. Okay, so this, what we're talking about here and we're getting close to, when you have a rule that says, I can go into a home without a warrant

to preserve evidence, to preserve evidence. And I can do that to preserve evidence, even in absence of any evidence of danger to that this fleeing misdemeanor is a danger to himself, is a danger to others, or that I really need to go in to seize him. That, for example, I have enough situational awareness that I can see if he's going to go out the back door. I've got the situation secure that I can go in to seize evidence. drug war and the war on drugs has become a wide open gate straight through the protections of the Fourth Amendment. For example, in the no-knock raid scenario, you can do a no-knock to preserve life. You also can do a no-knock to preserve evidence. You also can do a no-knock to preserve evidence.

And then in the no-knock scenario, you know, this exclusionary rule issue that Justice Thomas talks about, well, in the no-knock rule in Hudson v. Michigan in 06, said that if you seize evidence in violation of knock and announce, it's not subject to the exclusionary rule. So if you violated the knock and announce rule with's not subject to the exclusionary rule. So if you violated the knock

and announce rule with an improper no knock, you get to use the evidence. And then by the way, this idea that there's still accountability through lawsuit, eh, no, not really. There's qualified immunity hovering around out there. So in the atmosphere of qualified immunity, So in the atmosphere of qualified immunity, the ability to enter to preserve evidence, and then if you add the Thomas provision here that Kavanaugh joined in, by the way, if you add that, then you're creating the situation that is not quite the same where you have a SWAT team bursting down your door, but the idea that I can preserve, just to preserve evidence, even if the scene is otherwise secure, that I can come barging into your house, that is opening up individuals' homes to the armed officers of the state under incredibly broad, incredibly broad criteria. I don't have an issue or have much less of an issue in saying, well, if I feel like given the totality of the circumstances that this person who is fleeing may escape entirely, in other words, I can't secure the site and secure a warrant. I have more sympathy for that than I have with whatever this person might be carrying and I don't know what it is. They

might throw it away or flush it or do whatever, and therefore I'm going to barge into their home. I've got a lot less sympathy for that concept. And I think the Supreme Court at some point is going to have to deal with this sort of blanket exemption from reasonable and essentially pulling into reasonableness violations of the sanctity of the home to preserve evidence. And you just keep getting the sense that these guys have seen too many movies where people are flushing cocaine down the toilet. And there's this race from the cop, you know, to the bathroom to catch somebody in the act of flushing something down the toilet. But look, you know, that creates an exception to the Fourth Amendment. You can just drive a truck

through. And that's one of my big issues here in this case. And then especially if you add on to it an elimination of the exclusionary rule and retain qualified immunity, holy smokes, there's no real remedy if your civil rights have been violated. Interestingly, to some extent, then you agree with Chief Justice Roberts' concurrence just for totally different reasons. I mean, he's talking about how sort of I mean, he's talking about how sort of incentives matter in this. And you're incentivizing some weird behavior on the part of the officer, frankly, if you don't have this bright line. Look, if they're avoiding arrest, that is the exigent circumstance. Otherwise, the officer has to sit there and ask, did they have evidence on them? Could they be destroying it? Are they getting a gun? Is that their house? Et cetera, et cetera. So let me just read some of the chiefs.

The Constitution does not demand this absurd and dangerous result. We should not impose it. As our precedent makes clear, hot pursuit is not merely a setting in which other exigent circumstances justifying warrantless entry might emerge. It is itself an exigent circumstance. So how, you say, is this a concurrence? That is a great question. Answer it for us, please, Sarah.

So the California court upheld this as a hot pursuit case. The opinion of the court, the judgment of the court, rather, sorry, that Roberts is joining here, he doesn't have to join any of their opinion. Just the outcome is to vacate that and remand it for, to like redo it with different, um, legal standards basically. So as best I read this, he is disagreeing with the California court's reasoning, but not their outcome, but still believes that it should be vacated and remanded.

I find it bizarre that that's not spelled out anywhere. And in fact, you have this delightful mommy and daddy, please get along concurrence from Justice Kavanaugh. I add this brief concurrence simply to underscore that in my view, there's almost no daylight in practice between the court's opinion and the chief justice's opinion concurring in the judgment.

In his thoughtful opinion, the chief justice concludes the pursuit of a fleeing misdemeanor should itself constitute an exigent circumstance. The court disagrees. As I see it, however, the difference between the Chief Justice's approach and the court's approach will be academic in most cases. That is because cases of fleeing misdemeanors will almost always also involve a recognized exigent circumstance, such as a risk of escape, destruction of evidence, or harm to others that will still justify warrantless entry into a home. So this is a little hard to follow, but the difference here is that both the majority and the chief justice believe that this falls under exigent circumstances. The majority believes it's fleeing plus another exigent circumstance.

The chief believes that it is the exigent circumstance. The California court was on this hot pursuit side of the line. That's why it's a concurrence, but we should definitely read it as a dissent. And from this point forward, I will be referring to it as a dissent. Right. It's so weird because it's a concurrence that's a dissent that concurs in the judgment, which is because the California Court of Appeal applied the categorical rule we reject today, we vacate its judgment and remand the case for further proceedings not inconsistent with this opinion, Kagan's opinion. Kagan's opinion, not Robert's opinion. And so Robert says something different from Kagan,

but then concurs that it should go back to the California Court of Appeal for consideration in light of Kagan. Yep. And he has this great, he begins with this hypo and ends with the hypo. And so shall we, David, in today's blockbuster first advisory opinions. Suppose a police officer on patrol responds to a report of a man assaulting a teenager. Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts

to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home's front yard. He claims it's his home and tells the officer to stay away. What is the officer to do? The Fourth Amendment and our precedent, not to mention common sense, provide a clear answer. The officer can enter the property to complete the arrest he lawfully initiated. But the court today has a different take, holding that flight on its own can never justify a warrantless entry into a home, including its curtilage. That's the property, you know, the yard, the driveway. The court requires

that the officer stop and consider whether the suspect, if apprehended, would be charged with a misdemeanor or felony. Two, tally up other exigencies that might be present or arise. Three, decide whether he can complete the arrest or must instead seek a warrant, one that in all likelihood will not arrive for hours. Meanwhile, the suspect may stroll into the home and then dash out the back door. Or, for all the officer knows, get a gun and take aim from inside. And so this is how the opinion ends. Recall the assault we started with. The officer was closing in on the suspect when he hopped the fence and stopped in a yard.

The officer stands to climb over the fence to arrest him, but wait, was the assault a misdemeanor or a felony? In Lang's state of California, it could have been either, depending on the identity of the victim, the amount of force used, and whether there was a weapon involved. How much force was the man using against the teenager? Is this really the assailant's home in the first place? Pretty suspicious that he jumped the fence just as the officer was about to grab him. If it is his home, are there people inside? And if so, how many? And why would the man run from a mere fight? Does he have something more serious to hide? By this time, of course, the assailant has probably gone out the back door or down the fire escape and is blocks away, with the officer unable to give a useful description, except for how he looks from behind.

That's literally how it ends. You know, and the thing is, like, okay, I don't want to say he's strawmanning this a little bit, but he's strawmanning this a little bit. Because as Kagan discusses, there are a lot of really benign misdemeanors. I mean, what if instead of a man is attacking a kid, it is... A police officer is patrolling down the Pacific Coast Highway and saw a man using a chainsaw instead of pruning shears on shrubbery in public land. When he saw me, he was slightly startled and he ran over to his house, you know, 15 feet away

and stood there and said, I was just trying to improve my view of the ocean. Now, under the Roberts formulation, you go after that dude because he left he left the scene of the pruning he left the scene and that flight gives him all the reason he needs even though all the guy wanted to do was take you know use the full value of his property that he no doubt paid a lot of money for and was trying to cut away at a public plant. I mean, so yeah, a little straw manning. And on the flip side, the example that the chief justice is giving here, I totally agree with Kavanaugh. The majority thinks that's an exigent circumstance. You absolutely can pursue that guy because the question is what a reasonable officer would

think. Would a reasonable officer think that he might have committed a felony instead of a misdemeanor? I think so. Could. Would a reasonable officer think that maybe that wasn't his home? Sure, could. Would a reasonable officer think

that there could be other people inside and since he had just assaulted someone, people inside could be in danger? Sure, maybe. So many, so many things a reasonable officer could say he thought that necessitated going in to arrest him that was the exigency on top of the fleeing misdemeanor. Justice Roberts, you need to adopt

the dispatch ethos, which is to steal man, not straw man, your opponent's position. Deal with the shrubbery hypo, not the assault hypo. And I think it will clarify matters. That being said, I think the exclusionary rule conversation here is the one to watch moving forward because that is an interesting area of law that I have not seen

really coming up at all recently. And now my eyes are focused. I am on this exclusionary rule exception beat and will look for cases that could come down the pike in the future to narrow the exclusionary rule. And maybe, David, down the line, we can do a little more on the exclusionary rule,

its history, how it came about. Yeah. All I'm saying is narrow the exclusionary rule and maintain qualified immunity and hoo boy, that is a bad situation. Yep. Yeah. So, all right.

Yeah, we were so ambitious, Sarah. There's two other cases that we left on the table. We have decisions coming out tomorrow on Friday morning. The one I'm most looking forward to or most interested in and the last one remaining that I'm really focused on is the AFP case. This is the case involving mandatory donor disclosure rules, which has some real First Amendment implications. And you and I both think that

one's coming. That one's not even going to be close. I think it could be unanimous. So I'm not particularly interested. I think it'll be prettyous. So I'm not particularly interested. I think it'll be pretty boring, actually. I think what's interesting about it is you're going to see one or more of the three Democratic appointee justices ruling against the disclosure rules. mimicked in some of the text of HR1, which is this giant sweeping election reform statute that has just sort of died a death in the Senate and was sort of, you know, people were absolutely crushing Joe Manchin for not wanting to forsake the filibuster for this case,

for that statute, when some of it was actually unconstitutional, as we will soon see. I am most looking forward to Brnovich. That is the hit parade case that is left at this point. This is the Voting Rights Act case out of Arizona. They passed a law that said you could not vote out of precinct and ballot collection, which permits only family and household members, caregivers, mail carriers, etc. to handle another person's ballot. The lawsuit is under Section 2 of the Voting Rights Act that it discriminates on the basis of race. And this is all about

disparate impact and how much of a disparate impact there has to be. There's so much wrapped up in us that will affect voting laws across the country. You know, we've talked about how the politics of the court, politics of the small p, has been scrambled since Justice Barrett came in. To the extent there's going to be a case where tempers are going to run high, it's this one. I think you're right about that. This is one we might, in addition to the 6-3 union case we have yet to discuss, this is one that might be 6-3 as well. I think it very well could be. And in a pretty biting 6-3, interestingly, that union case, which I want to get into a lot, was the most polite 6-3. The dissent's like, oh, I totally see where the majority's coming from.

And the majority's like, oh my gosh, you guys, the dissent was so thoughtful about this. I mean, we disagree, but like, he's the best. That's not going to be what happens in Brnovich, I predict. Right. I think you're probably right about that.

So if Brnovich comes out tomorrow, we will do an emergency pod, but I think Brnovich will actually come out Monday and we will not do an emergency pod tomorrow because there are eight cases left. Six of them are really miserable. That's not true. One of them is that pipeline case. So five of them are pretty miserable. Three of them are AO worthy, but we'll see. You know what? Sometimes I'm surprised and sometimes there's footnotes or who knows, smiley faces.

So I'm still excited. But I mean, Wednesday was like the best. I sat out on my deck and I read Supreme Court opinions the whole day, David. I luxuriated in them. It was glorious. It was just fantastic. And when you're a close court watcher, I got to say that there's something kind of fun about the every 10-minute refresh. Because it used to be that you would sort of follow SCOTUSblog because they were doing this live in court,

which I bet they'll go back to. But they were doing it live in court, and you're just waiting for the SCOTUSblog live blog scroll to come to the next opinion. And then they would announce the opinion, but it would not be for a minute before you'd have the opinion. So they would be summarizing it and describing it. And I enjoyed that. It sort of had this suspense to it, but I just like this every 10 minutes.

It's about, here comes another one. Here comes another one here. Oh, it's just fantastic. All right. Okay. If you didn't like this podcast, then AO is not for you. It's true. But I know that AO is for you. So please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts. And please check out thedispatch.com. There's a small chance we might be back tomorrow with an emergency pod. Doubt it, but there's a small chance.

But if not, we will be back on Monday and there will be more Supreme Court goodness to talk about because we left two cases on the table. So even if we have all the boring cases, Friday and Monday, we still got a lot to cover y'all. So come back either tomorrow or Monday and we will talk to you then. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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