Advisory Opinions - Are Age Verification Laws Constitutional?

Episode Date: August 21, 2025

Sarah Isgur and David French analyze Justice Brett Kavanaugh’s concurrence in the NetChoice v. Mississippi case and whether or not states can enforce unconstitutional laws. The Agenda:—Battle of the irreparable harms—SCOTUS and political battles—Revisiting minors’ First Amendment rights—Dissential battle raging at the 6th Circuit—White House joins TikTok—Let the drag shows continue—Christian Legal Society vs. Martinez 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 access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we're going to do some balancing of the equities at the Supreme Court today, a little interim docket action, as well as a Sixth Circuit dissental battle of the dissentals. I mean, are dissentals good? What are those concurrals? And the Fifth Circuit decided that West Texas A&M drag showcase split panel, let's see what

case David French thinks is the worst modern Supreme Court case of all time. All coming up on advisory opinions. If you've run into me in the last couple months, this is all I'm talking about. I know it's very annoying, but we are obsessed with Quince in our household. I have lived in their summer cotton dresses. Husband of the pod is obsessed with the linen shorts and even the comforter on my son's bed. Has been Quince now for years. We're big, big fans.

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and filings in courts across the country, even SCOTUS. Learn more at typelaw.com and use referral code advisory to save 10% on your first order. That's typelaw.com. David, we have an interesting statement from Justice Kavanaugh at the Supreme Court. Now, this case is net choice versus Fitch. It's about age restriction for all sorts. social media. So if you remember back only so many weeks ago at the beginning of the summer, we had that Texas case come out of the Supreme Court about age restrictions for websites that have more than two-thirds of the content is obscene or pornographic, et cetera. And the Supreme Court upheld that. This is age restrictions for all social media websites in the state of Mississippi.

So the Fifth Circuit lifted the injunction on the law going into effect. And the Net Choice folks, the social media side, asked the Supreme Court to lift the stay on the injunction. Anyway, the point is, the Net Choice folks don't want the law going into effect. And Mississippi does want the law going into the fact. the Supreme Court denied their interim docket. They're just not touching it. But we got a statement from Justice Kavanaugh. And David, I happen to know intimately the Council of Record in this case.

So that's both my disclosure. And I thought perhaps you could talk about this in a little more detail without all the conflicts of interest. But I do want to talk about the history of what balance of equities means. Yes. So this is very interesting. And so for those who did not get the reference, husband of the pod is representing net choice in the case. So the judge, Justice Kavanaugh, wrote a very short concurrence in the denial of the application to vacate stay. And don't worry about all the language denial of application to vacate. This means that the law is allowed to go into effect for a time period. And he says this. I can,

concur in the court's denial of net choice's application for interim relief because net choice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. To be clear, he says, net choice has, in my view, demonstrated that it is likely to succeed on the merits, namely that enforcement of the Mississippi law would likely violate its members' First Amendment rights under this court's precedence. And then he goes on to say, given these precedents, it's no surprise. that the district court in the case enjoined enforcement of the law and that seven other federal district courts have likewise enjoined enforcement of similar state law, seven others. And he goes through Ohio, Texas, Utah, California, all of these sites, Arkansas. And then he concludes, in short,

under this court's case law, as it currently stands, the Mississippi law is likely unconstitutional. nonetheless, because net choice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the court's denial of the application for interim relief. This is interesting. Okay. In constitutional cases, typically, here's essentially the standard that is applied is when you're seeking a preliminary injunction and you want a preliminary injunction, you have to show that you're likely to succeed on the merits of the case. You have to to show that there's irreparable harm in the absence of an injunction, and you have to show that the balance of the equities, sort of the fundamental fairness of it all, weighs in your direction.

Now, normally, in constitutional cases, it has become, it has developed such that if you win on the, if you would prevail on the merits, if you can show that there's a likelihood of success on the merits, elements two and three just have sort of fallen into your lap. It's generally, it is deprivation of constitutional rights is by definition irreparable harm, especially in this First Amendment context. And then once you've demonstrated there's a likelihood to success and that there's irreparable harm, the balance of the equities analysis is often quite rote. It's just sort of, of course, the equities balance in my favor, because you're violating the Constitution and I get the enjoyment of constitutional rights and what's your what's the

fairness in your direction state if you're violating my constitutional rights so normally that one just kind of falls in your lap Sarah but not in this case in this case justice Kavanaugh says they've not sufficiently demonstrated the balance of harms and equities and it's intriguing he doesn't say why it doesn't. It just says it doesn't. And so it's a very, very, very interesting and really raises the question of, is this signaling the resurrection of harms balancing, harms and equities balancing as a prong in these constitutional cases that you really got to actually do the work to show the balance of the equities? Because I, and I'm, I had an eyebrow I'll raise, Sarah, because I'd always sort of had this view of, well, if it's a three-part test,

why am I consistently only having to pass one part of it to win? And so I'm very intrigued by this, very intrigued by this. And so I'm also very interested in your larger exploration. Let's start with just the interim docket issue. We are learning step by step, and I think maybe the justices are learning step by step, how they're going to create a body of interim docket law, if you will, because this is all pretty new, how many requests they're getting. And now we focus so much on the federal government and the executive branch interim docket cases. But these state cases are coming up through the interim docket too. And like we talked about in the last episode, for instance, a government that cannot put in place its law is per se irreparable

harm. The problem is that if your First Amendment rights are being violated, oh, that's per se irreparable harm. And the court has previously said that a government, state or federal, doesn't have an interest in enforcing an unconstitutional law. So even though you have this battle of the irreparable harms going on, that's to me why the balance of equities never really came up because, okay, so you both have a reparable harm, you say First Amendment, you say government law. But if I look at likelihood of success on the merits, if you are likely violating someone's First Amendment rights, then you don't have irreparable harm to enforce a likely unconstitutional law. So like when we look at balance of the equities, it solved

itself with the first two math problems, if you will. So interim docket world becomes really interesting because if we're now saying like, okay, if you both have the per se irreparable harm, we're now going to balance the irreparable harm. And as we noted before in the last episode, David, the court seems to say the tie is going to go to those representative branches. And that maybe this just the like the government doesn't have an interest in enforcing an unconstitutional law. Like, we're not doing that any more on likelihood of success in the merits. We're actually going to do the balance of the equities. And if the balance is on one side, there is a government that can't enforce its law passed by duly elected members and yada, yada, that the court wants to remove itself,

at least at the interim docket stage from that. And it'll deal with it in likelihood of success on the merits unless, again, that balance of the equities, there has to be something more than just corporations whose First Amendment rights are being violated. I can come up with some perhaps scenarios where like government law versus an individual who is being retributatively for their First Amendment rights prosecuted or something like we saw in some of those cases, David, dealing with local governments. Because there you don't have a law necessarily. You might have a policy and like so okay so maybe balance of equities would shake out a little differently in that but i don't i mean interim docket wise we are learning so much every day can i raise a prospect

or raise a thought okay so if you look at our the the supreme court's case on universal injunctions if you look at the universal injunction case everyone who looked at that said oh there's 19 ways around this. Well, not really 19, but you've got APA cases. You've got class actions. There's more than one way to secure complete relief. And even if complete relief could be nationwide relief. So a lot of people looked at it and said, not as big a deal. Not as big a deal as a lot of everyone's saying it is. This one, I mean, this isn't a court. This is one justice. This is one justice. But if you start to say, you know what, states are going to be able to enforce unconstitutional laws until they're finally adjudicated, that would be a blow against the

nationwide injunction 10, 15 times more than the birthright citizenship case. Because if the, if you really had to do the work to sort of show that there are a balance of equities, that favor blocking right now on a preliminary basis, sort of the will of the people as expressed through their Democratic representatives, then you really would be changing more than the birthright citizenship case injunction practice. It would make it more rare, make it more difficult. I don't think that you would have a sort of a blanket rule that a democratically elected law, couldn't be enjoined. But if you made it where you had to have a real showing, you know, I don't know, Sarah. What do you think? Is this something that's an additional way that the

Supreme Court is saying? Don't be coming to us with all these injunctions. Tracing the Supreme Court's relationship to the elected branches, like all the way back to Marbury v. Madison, the Supreme Court's constantly in this tug of war with what their role is vis-a-vis those representative branches, whether it's Congress or the presidency, or in this case, states, which aren't really distinguishable for our current purposes. We're at this moment where the court keeps getting pulled in and pulled into all these political fights. We sense that they don't want to be part of these political fights.

This is all, you know, the root showcase on part of the political fights. artisan gerrymandering, for instance, that like, no, no, there's some things that just don't involve us. And maybe at an interim level, they're like, yeah, you know, the people voted for this. They get the government they voted for good and hard. And like, yeah, maybe all those social media companies pull out of Mississippi. And maybe that's actually the way this needs to work. So, like, yes, we're here to tell you at the end of the day, whether this is constitutional or not. but like we're just not going to be there every step to referee the you know toddler soccer game where everyone's chasing the ball um i think that would be interesting but david can i give you a other

avenue to go down with this what if we're looking at a more wholesale revisiting of the first amendment rights of minors because you notice that he says in short under this court's case law as it currently stands. The Mississippi law is likely unconstitutional, and particularly looking at Brown v. Entertainment Merchants 2011. That was Violent Video Games case where the court held that minors have First Amendment rights. It was 5'4, I believe. I don't know. I'm a pretty First Amendment absolutist, but it's weird because obviously minors don't have complete First Amendment rights. And it's always been a weird part of our jurisprudence to like really break that down into its component parts, wouldn't it be easier to just say,

minors don't have First Amendment rights? Yeah, it would be easier. I don't know that that's the analysis we're going for here. You know, it's, you know, it is interesting that you say that because for some time, you know, Thomas has been doing sort of as you kids get off my lawn thing about minors, kids in public schools do not have First Amendment rights. Thomas would not decide tinker the way he decided tinker. You raise a very big. interesting point. I find it very hard to believe that this court would go so far as to sort of say that if you're below 18, you don't have First Amendment rights. But this case is just about you don't have a First Amendment right to access social media if the state law is that you

don't. Right. I could see the court taking steps to perhaps narrow some of the jurisprudence around First Amendment rights for minors. I could absolutely see that. I thought it was very sharp of you to catch the way Kavanaugh worded it, sort of remind you of the answer to questions about Roe in confirmation hearings. Yes, row is precedent, which is just a water is wet kind of statement. It has no, does not mean that Roe will remain precedent. It just says Ro is precedent until it wasn't. So very interesting that you spotted that. Let me put it this way. A dramatic restriction of minors, Amendment rights strikes me as a very bad idea on a number of fronts, not least of which is one of the ways that we train people to be adults in a pluralistic society is by helping

them behave in a pluralistic manner when they're minors. But what if instead of they get full adult strict scrutiny on their First Amendment rights, what if the age creates an intermediate scrutiny like we do with commercial speech. Commercial speech does not enjoy strict scrutiny level First Amendment protection. It enjoys intermediate scrutiny. And I could imagine a world in which we say minors also enjoy intermediate scrutiny. It lowers the interest needed to be shown by the government to implement a law. An important government interest instead of a compelling government interest. And while those two words don't have a huge distinction in my vocabulary, they do in the tiers of scrutiny vocabulary of the First Amendment?

I would find that very difficult to sustain as a practical matter in, say, the viewpoint discrimination context. So, for example, school officials allow a secular clubs, but not religious clubs. Intermediate scrutiny, judge decides, uh, or, you know, in the South, they allow religious clubs and they prohibit all LGBT clubs. Intermediate scrutiny, what you would begin to have is sort of this patchwork of viewpoint discriminatory standards popping up all over America, blessed by this sort of loosey-goosey. I could imagine a rollback to some degree. It would be very difficult for me to imagine a rollback that is going to permit sort of explicit viewpoint discrimination.

Very well, then. We shall move on. Oh, and since we brought up the last episode a few times, I have a correction from the last episode. we were talking about the tariffs case, and I was quoting one of the judges on the federal circuit in oral argument. And I mispronounced his name, and that was terribly rude of me. His name is Judge Dyke. And I should have known that because his mother is Ruth Dyke, who was featured in the Ken Burns documentary on suffragettes because she lived to 99 years old.

and in fact was in, like marched in Boston for women's suffrage as a young woman, like an incredible history that she has. So apologies to Judge Dyke and the entire Dyke family for messing that one up. David, when we get back, you're going to weigh in on the great dissental battle of 2025 raging at the Sixth Circuit. our aura frame just started over as you've heard me say before we set ours to switch photos one per day and they go in chronological order so when we get to the end of our photos and it starts over it goes way back it started over with our wedding and we just got to the birth of the brisket it is husband of the pod handing me this little eight pounds something newborn and that's the photo

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manager. David, there was a petition for en banc hearing so that all the judges at the Sixth Circuit would review a panel decision. I don't so much care about the case, but it was denied on Bonk hearing, and then we got so many, many pages of opinions from the Sixth Circuit, a little bit rare, especially from the Sixth Circuit. We see some of this from the Ninth Circuit, but I thought I could read you. a little bit on some of these decisions or opinions, and you could tell me what you think.

So, as you said, a concurrence in the denial of en banc rehearing is lovingly called a concurl, and a dissent from the denial of en banc hearing is called a dissental. So I'm going to read the concurl from Judge Karen Nelson Moore. There is a rising trend in our circuit of publishing separate statements when rehearing is denied after a poll of the en banc court. I have serious concerns about this practice. In this case, the opinions of the majority and the dissent have already been fully and carefully explained. Drafting Cliff Notes versions of our views is not only unnecessary, but it is also offensive to our system of panel adjudication. The trust implicit in delegating authority to three judge

panels to resolve cases as they see them would not mean much if the delegation lasted only as long as they resolve those cases correctly as others see them. By accumulating votes for or against the positions articulated in the panel opinions, we cast doubt on circuit precedent, erode our faith in the panel system, and give rise to our own shadow docket. But when, as here, the dissenting judge accuses the panel majority of brazenly defying Supreme Court precedent, I cannot allow that accusation to go unanswered, so I write in response to re-explain the panel majority's reasoning.

And she goes on with a full concurral. Now, then there's a dissental, the primary dissental, by Judge Joan Larson. But then we've got a separate dissental by, oh, it's Judge Radler. Okay, this is what the kids call having the receipts, David. Reading from Judge Radler's dissental. Our colleague has, quote, serious concerns, end quote, over what she sees, as the rising trend in our circuit of publishing separate statements when rehearing is denied by the en banc court. If past practice is any indicator, our colleagues distaste for separate

writings, descends from the denial of rehearing en banc in particular, appears to be a very recent phenomenon. And then he has a string site that is very long. I will just read the years for you. So, 2024, more J dissenting from denial of rehearing on Bonk. 2023, more J, dissenting from denial of rehearing on Bonk. 2023, more J, dissenting from denial of hearing on Bonk. 2021, more J, descending from the grant of initial hearing on Bonk. More, sorry, 2020, more J, descending from the denial of rehearing on Bonk. I am not even halfway through.

It's going to go through in great detail. Debate over weighty issues is the heart and soul of the legal professional. In nearly all respects, we encourage the exchange of ideas. For lawyers and litigants, their efforts benefit from legal analysis by peers and judges alike, all of which helps shape legal practice and strategy going forward. True, in some instances, an en banc stage writing may reiterate points in an underlying panel opinion. Yet even then, the writing serves an important function. It allows other judges, apart from those randomly assigned to the panel, to join in the effort which further informs issues in the current case, to say nothing of the next one.

Members of the Supreme Court understandably hugh to the same practice. At the certiorari stage, justices will sometimes craft separate opinions expressing their views on why a case should, or should not, have been accepted for a view, views that often inform related cases going forward. But there's one more reason these writings are valued. The Supreme Court relies on them in overseeing our legal system. The Supreme Court faces a daunting task. Among all of the cases in federal court, it must select the most deserving for a view. To do so, it relies on development of legal opinions across the inferior courts. Separate writings in the courts of appeals,

including at the en banc stage, are critical pieces to this puzzle. In case after case, the Supreme Court has cited those writings and explained how they informed the Supreme Court's review process. And we've got another long string site, very, very long, a full page of that.

He also notes that Supreme Court often highlights the number of judges who joined those dissentals, and then we've got a string site for that. Much more could be set on the topic. But the point seems easy enough to understand. Most of us welcome indeed encouraged the exchange of ideas, the Supreme Court included. Perhaps one who does not want a panel opinion placed in the spotlight might bristle at colleagues adding their dissenting voices

as a collection of judges led by Judge Larson have done here. Happily, the sentiment appears to be a minority one in our circuit. So, David, who got the better part of the dissental battle, especially since we just talked, we've been talking, about the, you know, all these concurrences coming around at the Supreme Court level, whether it muddies the waters, you have Justice Kagan and certainly the chief justice thinking like less is more when it comes to writings. Are dissentals like that? Are they muddying the waters? Or are they, as Judge Radler says, expounding on a grand legal tradition of lawyers arguing about things? Yeah, I mean, this is an extension of the conversation we've

been having for a while about this. A couple of points. Well, an observation. and a couple of points. One is, how much would you like to be the clerk tasked with, could you please find all the concurrals or dissentals from a petitioner for rehearing en banc from this judge? And you're just going three and you're like talking to your colleagues. I've got one from 20, 24. No, I've got two from 23, 21, 2019.

I mean, that is a classic case of if you, when you live in glass houses, or maybe if you're like, construct, glass houses for a living. Don't throw stones. Man, that was something else. But the couple of points. One, is this a less is more situation? I will say this. I think that I am more persuaded, because as you know, I've been skeptical of the idea that people are writing too much. I like to see reasoning. I like to see thinking. My default position is with Judge Radler on this. More is more, not less is more. But, you know, the aftermath of the Vulo case down to the Second Circuit where

one judge concurrence out of nine judges seemed to carry tremendous weight with the lower court did make me feel a little bit queasy about that. I'm still by default. I would like to have more rather than less reasoning. But it strikes me that some of the concerns about concurrences in SCOTUS don't necessarily apply to concurrals from denials of petitions for rehearing, because those are much more a plea going up than a sort of mandate going down. And there's a difference between the two. So I see less of a possibility for confusion if you have a concurrel that is something along the lines of, say, the dissent that we're going to talk about next, that is, hey, here's the precedent, but we think it's inconsistent with other precedent

or we think that this precedent should be revisited. That is going up. That is a signal up to the Supreme Court. And if there's any signal down, the signal down is precedent is still precedent. And so I feel like the argument against is a bit weaker in this context.

The argument against more writing is a bit weaker in this context. I totally agree with that. The hesitations that I have of Supreme Court justices, you know, there being more concurrences than there are justices it feels like sometimes is because the lower courts are left wondering like, well, how is this, does this seem closer to the fact pattern in the case that I have? Though I took Judge Bumete's point pretty seriously that like having justices flag problems, if you will, of like, hey, we didn't decide this

or moving forward, we're going to have to decide this, that those types of concurrences can be very helpful for lower court judges as they think about what needs to percolate below. so to speak. But dissentals are a totally different thing to me. They are cert petitions written by judges. Now, in this case, Judge Moore was saying that that was an inappropriate role for judges to play. And Judge Radler is saying, they've got all these cert petitions. We're flagging the ones that we, as their sort of employees, if you will, think need to be resolved. I think there's something to that. I think there's, there's, better and worse ways to frame dissentals, if you will. Like, hey, there's a circuit split on this.

I think our circuit precedent is, you know, the panel was bound by circuit precedent. I think we should have revisited that circuit precedent regardless there's a circuit split. This is ripe for the justices to tell us what they think. I actually think the cert petition style dissental is the best kind of dissental, weirdly. The sort of dissental where you just snipe at your colleagues, maybe less so, but then it also has like less damage. Like, what, I don't know, just really, y'all talking to yourselves. Well, you know, as with all things, execution matters. I mean, you can be in favor of dissentals broadly, but then see what they are and be like,

no, this is just a food fight as opposed to sort of a cert petition. I like that phrase. These are cert petitions by judges. I like that. But judges can also get in food fights. No question about it. But yeah, I think my default is still my default. I like to see more reasoning.

I think one of the outstanding attributes of the judicial branch is the way in which they write out their reasons for what they do. It would be a very interesting practice. And I'm sure some congressman or senator has done this is to write out an explanation for a vote. Write it out. Have staff put it together so, you know, and you approve it. But write out that justification for a vote. I think it would be valuable for constituents to see what you think and why you think it. I like that about the judicial branch. one thing that is very, very, very clear, you might want to explain why you've changed your mind on a practice

if you're going to condemn it when you've done it a lot. By the way, David, just a quick break brought to you by me where I note that it's been 212 days since the TikTok ban was supposed to go into effect. And what happened this week? There was big TikTok news from the White House. They launched a TikTok account. The hell is going on.

Yeah. This is unbelievable. You know, I was I was working on my newsletter this week and I was looking at going back and looking at a Jack Goldsmith piece that was done a few years, or not a few years. It feels like years a few months ago, Sarah. And he was talking about the Trump administration's theory of executive power. It had these four elements to it. So this is from Jack Goldsmith. A, the Constitution vests all the executive power and the president. And that means, B, all subordinate executive branch officials are removable at will by the president. C, the president's article to duty to take care that the laws be faithfully executed, entails an exclusive presidential power to decide which laws to enforce and not to enforce. And D, the president, can thus direct and control all subordinate elect executive officials. This seems to be squarely in their little theory C. the president's article two duty to take care entails an exclusive presidential power to decide which laws to enforce and not to enforce. And they have obviously chosen not to enforce the

TikTok ban. And a lot of people ask us, well, why hasn't the Supreme Court intervened? There isn't a right of action yet that's been or a plaintiff that has real standing to enforce this. The Supreme Court doesn't exist as a freestanding panel to render, as we've say in the name of this podcast, advisory opinions about executive acts. And it can't simply direct the president to do his job. There has to be a case or controversy that meets the Article three standing requirements. And if you don't have one, then the court is totally on the sidelines, totally on the sidelines while this plays out. When we get back, we're talking drag shows. and David's least favorite case that the Supreme Court's ever decided?

I don't know. We'll find out. This episode is brought to you by Square. You're not just running a restaurant. You're building something big. And Square's there for all of it. Giving your customers more ways to order, whether that's in-person with Square kiosk or online. Instant access to your sales,

plus the funding you need to go even bigger. and real-time insights so you know what's working, what's not, and what's next. Because when you're doing big things, your tools should to. Visit square.ca to get started. David, which one's worse? Christian Legal Society versus Martinez or Dred Scott? I mean, it's Dred Scott, but CLSV Martinez, I loathe it. I loat that case from the bottom of my being.

But it is no Dred Scott, it is no Korematsu, it is no Plessy. Well, I think I meant in the context of, you know, not the all-time evil decisions, you know, and just bad wrong decisions. So we have this Fifth Circuit panel decision about a case that we've talked about before. This was when West Texas A&M's president canceled a drag show that was supposed to be held as a fundraiser on campus saying that he believed that drag shows were demeaning to women, they caricatured them, et cetera, and just like he would not allow

a blackface performance, minstrel show, to go forward on his campus because it would create a hostile environment for students. He would not allow a drag show to go forward either. The district court sided with the president and was like, yeah, if he says no drag shows,

that does not offend the Constitution. This Fifth Circuit panel two to one reversed that district court, so said, in fact, the drag show can move forward that the president violated the student's First Amendment rights by banning the drag show because the place that they wanted to host the drag show was a public forum that the campus had allowed non-students to use in the past. And so it was not, you know, like a quasi-limited public forum where you have some government speech almost involved where the

government can say, yeah, we don't want that happening here. But, David, I guess, okay, let's assume for a second that it is a public forum. It's a building that others can sign up to use that happens to be on a public university's campus. Like, can I sign up to do a menstrual show at West Texas University now? And there's nothing that West Texas University can do about that? I would say probably yes and you always could have. Oh. But David, this is a university that is also bound by Title VI, meaning that if there is pervasive and severe harassment on account of race or gender, you're in big, big trouble with, you know, the federal government, Department of Education, you can be held liable to that. If you're hosting blackface shows on campus, that seems pretty pervasive and severe racial harassment. Well, it's the same analysis we've seen on campus after October 7th. You can chant globalize the Intifada.

You can say from the river to the sea, Palestine shall be free. You can call for the infliction of war crimes on Palestinians, say, carpet, bomb, Gaza, whatever. These are extremely offensive messages. Or let's take it out of the October 7th context and put it into another case that made headlines some time ago. Muslims consider it to be an absolute affront, or some sex, many Muslims consider it to be an absolute affront to show a image of Muhammad. Well, there was an art teacher and had an art class, and there are some classical images of Muhammad. And I don't know if you remember, she faced discipline, huge outcry, this was a private university, huge outcry for academic freedom.

If that had happened at a public university, she would, that would have been constitutionally protected expression. However, if you take the picture of Muhammad and you walk around and just jam it in the face of Muslim students against their consent against their will, you're going to have some title six problems in the same way that if you're following Jewish students from class to class chanting this, where you're obviously targeting chanting from the river of the sea or globalized the intifada, you're going to have some problems. If there's one thing that we know from many, many years of the case law surrounding the conflict between the First Amendment and anti-discrimination law is that context really matters. And one of the contexts that really matters is, is this a

situation where in essence, and I know there's some people who skin is going to crawl when I say this, that in many ways, one of the ways to think through your harassment context is to think in terms of time, place, and manner. Are you chanting something at a rally? That's going to be maximum maximum level of protection. Are you shouting it at somebody outside their office where they're trying to work? That's going to be different. Or outside their dorm room when they're trying to sleep, that's going to be different. Or the way Eugene Volick has put it, there's a difference in one-to-one speech versus one-to-mini speech. So in other words, when you're engaging in the kind of speech that is a public event where people can come or not come versus singling out somebody for

personal harassment. Those are different things. And so, yeah, as awful and as repugnant as that is, I do think that you could actually have a racist display and if not be banable by a college in depending on the context. So this brings us to Christian Legal Society v. Martinez and Judge Ho, who is the dissenting vote on this panel, I'll read the beginning of his dissent. The group on campus claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it

comes to regulating student activities to ensure an inclusive educational environment for all. I disagree with the Supreme Court's decision in Christian Legal Society v. Martinez, but I'm bound to follow it. And I will not. apply a different legal standard in this case just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in Christian legal society. So David, this is your opportunity to just go off on Christian legal society. I mean, I got to say I appreciate the troll a bit here because Christian legal society is a really ridiculous case. And for those who don't remember what Christian Legal Society was about. This was back throughout much of the early

2000s, universities began taking aim at Christian student organizations and derecognized them and removing them from having a right of access to campus. And the reason that they gave for it was the conflict that existed between many Christian organizations' statements of faith and the non-discrimination policies of the universities. Specifically, many of these Christian organization said, to lead the organization, and in some cases, to belong to the organization, you had to agree with the statement of faith. And the statement of faith, which this is super common in religious organizations. This is super common in sort of ideological organizations. So, for example, Republican organizations would be not really open to Democratic members and

vice versa. And so the statements of faith would require these, the leaders of these organizations, and in some cases, members also, to agree with, for example, a statement on sexual morality, that in this organization, it upholds the traditional Christian teaching, that marriage is between a man and a woman and sex should be reserved for marriage, and universities took the position that that was discrimination against LGBT individuals, and unless you agreed to open your organization to people who didn't agree with its statement of faith, you were not going to be recognized on campus. And this was, there were way of this. There was waves of this stuff. I dealt with organizations being thrown off of dozens and

dozens of campuses. And when you made the legal argument against it that Wade, hold on, how is this consistent with Hurley, with the Boy Scouts case, freedom of association that says that, look, a private organization or Trinity Lutheran, private religious organization can decide who's going to lead it without interference from the state, that conditioning public access are access to the campus on agreement with the state's vision of what a religious organization should do with its non-discrimination policies was unconstitutional. I mean, this was a decade-plus long fight, and the way in which schools always kind of tried to defend themselves here was, no, no, no, we're not saying that you can't offer an evangelical Christian message, that your message we're not

trying to regulate at all. We're just saying you can't discriminate in your composition, in your leadership. And anybody thinks about that for five seconds knows that that's a distinction without a difference, ultimately, because it is the people who craft the message. And sort of say, we're going to protect your message, but we're not going to protect your ability to decide who crafts the message is a real First Amendment problem. But case goes all the way up to CLS to the Supreme Court. And the Supreme Court decides in favor of the school under the super unique situation where it's the only school that I know that's ever been able to make this argument with a straight face. And that is, no, no, no, we're not engaging in any kind of viewpoint

discrimination here against CLS. It's just the rule here that our educational rule is that every student organization is open to every student at this school. Just every, it's an even-hand equally applicable rule that applies to everyone. And then there was a stipulation made by CLS in the case that eliminated the ability of CLS to sort of make one of its strongest legal arguments in the case. So here is the joint stipulation. Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of her status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs for becoming

members are seeking leadership positions in the organizations. So essentially what you did is you stipulated away, one of what I think is the actual key factual disputes as to was this actually this all-comers policy really aimed at CLS or was this something that was kind of a pre-existing general standard applicable at the school. And because if this policy was really aimed at CLS, to try to get rid of CLS, then it's not a viewpoint neutral, reasonable policy. It's a backwards way. It's sort of a, it's a disguised active viewpoint discrimination. And so, but by stipulating that you have this equally applied, all comers rule, you've in many ways stipulated away one of your better arguments. And so this is something that was, and again, I know, I know why this

was done. I know the thinking behind it. But that stipulation, makes this case very, it makes this case unique. It makes this case a unicorn. And it's been one of the least cited recent Supreme Court cases regarding the First Amendment that you're going to find because it is, it's, it is a unicorn. And so the use of CLSV Martinez in this case and the drag queen case was never really going to fly because in the drag queen case, the viewpoint discrimination was obvious from the get-go. There was a direct targeting of a particular kind of message in this case, whereas in CLSV Martinez, they stipulated away the idea of targeting.

They said this was not targeting. And so that's why it was never going to fly. As much as I appreciate Judge Ho taking all these shots at CLSV Martinez, I'm fist pumping, go judge go, but that is not precedent for this case. Okay, so in this case, our drag showcase, it seems that this really turns on whether the forum the students were seeking to use was a public forum that is sort of the equivalent of the all-comers policy, if you will, in which case, to your point, David, and to the majority's point, yep, if it's a public forum, you get to use it for black

face or a drag show or anything else that could be offensive. But if it's a limited public forum, if it is controlled by the school, while they can't discriminate on the basis of viewpoint, which could be another avenue where you could say, you're not allowing drag shows because of its viewpoint on LGBTQ issues, for instance. But if it's content based, they're going to have a lot more leeway, for instance. So if you just don't allow the caricature of anyone based on immutable characteristics, that sounds to me probably more content-based than viewpoint-based, but you're going to get pretty, you're at least on a different playing field then, but it seems like here West Texas ended up in the bad place, if you will, on the public forum problem. Oh, yeah, yeah. And the president

of the university didn't help the case very much because he basically took aim at everything the drag queen story hour stands for, which of course is his right. He absolutely can do that as a public, he can say, you know, using my bully pulpit as president, I think this is bad. I think this is wrong. I think this violates the natural order. Whatever you want to say about it, you can absolutely say about it. I like how the majority talked about. He went from everything from like Newton's third law of motion to the book of Matthew. He had a lot to say about drag queens. So yeah, how about it? say it, however, that viewpoint discrimination in a forum that is open to the public. And again, that was something that majority said, this is different from CLSV Martinez. CLSV Martinez was regulating

student, the composition of student groups recognized by the school, implicated students and students only. This is open to the public. So there was a bit of a difference there. But the main difference with CLSV Martinez is the heart of the case in A&M is a, is a, is a, content slash viewpoint discrimination argument around taking specific aim at a specific kind of expression. And in CLSV Martinez, they stipulated that away effectively. That was just not part of the case. So for those listening, I did think that this reference to a Fourth Circuit case was worth bringing up because I think it can reframe how we may think about this issue. So in Iota Chi chapter of Sigma Chi fraternity,

This is a Fourth Circuit case from 1993. University administrators and student leaders were upset that a fraternity hosted an event in which men dressed as caricatures of different types of women. It was a drag show. Campus officials concluded that the event had created a hostile learning environment for women and was therefore incompatible with the university's mission. One dean stated in an affidavit that the event perpetuated derogatory sexual stereotypes and was incompatible with and destructed to the university's mission of promoting diversity within its student body. the official worried that the event sends a message to the student body and the community that we are not serious about hurtful and offensive behavior on campus. Hundreds of students protested, as in protested against the fraternity's drag show,

similarly condemning the sexist implications of this event in which male members dressed as women. University officials ultimately sanctioned the fraternity for hosting the event. To me, David, this is all part of the same thing, right? Like, if a fraternity can't host a drag show that's demeaning to women, neither can the LGBT group, as in your intentions don't matter. Like, the university either can say, we think this is hostile to women on campus, or they can't. But I think part of the problem here is the feeling of picking and choosing based on whether you're in the in group, right? When thousands of students protest the fraternity, because that's sexist in 1993, but then, now thousands of students protest because you're anti-LGBQ in 2025 if you don't allow the drag

show. That can't be how we run this railroad. No, obviously not. But I don't think that 1993 case comes out the same way today. If you go back to the late 80s and early 90s, that was the height of the belief that non-discrimination policies were going to grant university officials very broad authority over student expression. So this is when you had an awful lot of speech codes that sprung up. And they really, these codes, and just to sort of take a charitable approach to these codes, if you have a court opinion that says, for example, you can take aim at a fraternity drag show because that could create a hostile environment, what do you do with that?

what do you do with that how do you how do you deal with that and the way they dealt with it was to sort of say hey if there's expression on campus that is subjectively offensive to people on the basis of race sex gender etc then we are going to be able to ban it or prevent it and it became very clear very quickly that that created exactly the kind of hyper subjective unworkable sort of selective outcomes that you talk about sarah what does it mean to be offensive? Who gets to decide what is offensive? And this is when fire got into the discussion.

It was like, wait a minute, you know, if you're talking about a hostile environment, well, we know the standard of that, and that is not a, that is not exposure to speech that I find offensive. That's not the standard. It's about conduct that's so severe or pervasive that it objectively denies a person the ability to receive the benefit of the educational program. That is not the same thing as I was angry at this display. And so over time, it has become very, very clear that these very broad readings of non-discrimination statutes are going to fail in the face of the First Amendment.

And so that's why I say that I don't think CLS v. Martinez comes out the same today. I definitely don't think that fraternity case comes out the same today. And I applaud Judge Ho for highlighting the absurdity of CLSV Martinez. I just think he's wrong about it's that it has real precedential value in the case that he's deciding. And with that, our next episode is going to be on the pardon power, David. We have a special guest on that one. And don't worry, Lisa Blatt will be on the podcast soon as soon as we are able to get her back on. With that, we'll see you next time.

Oh, oh! Oh! Oh! Wow! Thank you. Oh! Oh! Thank you.

Thank you.