Advisory Opinions - Between Persuasion and Coercion

Episode Date: December 20, 2022

Sarah and David look at the latest Twitter Files revelations, and consider whether they point to First Amendment concerns. They also look at the first case about transgender athletes making its way to the Supreme Court. Sarah then breaks down the grammatical debate happening in the comments section with a closing statement on why she was right, although rather unintentionally. Show Notes: -Philip Hamburger’s Wall St. Journal piece -Title IX -Kevin Stroud talks history of the English language on AO Learn more about your ad choices. Visit megaphone.fm/adchoices

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Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight-worthy with the BMO Toronto FC Cashback Mastercard. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we're covering a number of things today. We're going to start off with the Twitter files. Now, we try not to talk a huge amount about Twitter on this podcast because it's,

quite frankly, not super relevant to very many court cases. But Matt Taibbi, along with a number of other journalists, has been releasing information that Elon Musk has apparently supplied him from Twitter's internal documents. And he released a big document dump about FBI interaction with Twitter. And I have gotten a bunch of questions saying, does that violate the First Amendment? So let's dive into that today. We're also going to dive into a Second Circuit case involving trans athletes in Connecticut. Sarah's going to ask me a few questions about Brett Kavanaugh's party attending habits, and then we've got a number of housekeeping items to address. So we're going to

cover a broad range of stuff. So let's start with the Twitter files. And Sarah, do you want or do you want me to sort of go over what Matt Taibbi found? It's pretty easy to summarize. Okay. So Matt Taibbi dumps into the public domain on Friday. Yes, Friday. Essentially what looks to be like a pretty regular chain, a line of communication between Twitter and the FBI. And the way in which Twitter's relationship with the FBI was working, and there was a little bit more amplification of this

in some Twitter files supplemental dropped today, is that the FBI was monitoring Twitter for interference, election interference. Now, foreign interference, also looking for election information. And so what you would see is that the FBI and Twitter are having really regular communications. I don't think this is necessarily surprising, but, um, we got the doc, some of the documentation around it. Uh, and I'll give you an example of how this works. So here is a message from FBI San Francisco. So it

will say, hello, Twitter contacts. FBI San Francisco is notifying you of the below account activities, which may potentially constitute violations of Twitter's terms of service for any action or inaction deemed appropriate within Twitter policy. Thank you, Catherine. And then it says, here are the two bullet points. Twitter post by user Byram Wade displaying name Ultramaga stating the following, Americans vote today, Democrats you vote Wednesday the 9th. The tweet was posted on 8 November, 2022 at 2.10 a.m. Twitter account Claire Foster PhD

claimed in her post that she has a ballot counter in her state and an additional post states, for every negative comment on this post, I am adding another vote for the Democrats. And if you're not wearing a mask, I'm not counting your vote. So the request was to take those tweets down and or the request was to take action or inaction. And so this is a series of, a series of communications. Here's, here's another one. The National Election Command Post is requesting assistance from SF regarding coordination with Twitter, specifically the National Election Command Post has been made aware of tweets by certain accounts that may warrant additional action due to the accounts being utilized to spread misinformation about the

upcoming election. Specifically, NECP is requesting the following. Coordination between Twitter, SF, and Twitter to determine whether the accounts identified have violated Twitter's terms of service and may be subject to any action deemed appropriate by Twitter. The issuance of preservation letters regarding accounts identified below in order to preserve subscriber information and content information pending the issuance of legal process, any location information associated with accounts that Twitter will voluntarily provide to and aid the FBI in assigning any follow-up deemed necessary to the appropriate FBI field office. And then lists a whole bunch of obscure Twitter accounts. Maybe one of them was a little bit more prominent, but a whole host of accounts. And this set tongues to wagging across the

internet to say that this fundamentally changes the analysis away from here's a private company receiving requests from a private citizen or private entities, the Biden campaign, for example, or the DNC, for example. And they're all making decisions in their little bubble of privacy of private citizens doing private things and And change doesn't have something else. And that something else is the FBI intervention into the Twitter process. And therefore, what the FBI is doing is inherently coercive. And then that coercion implicates or violates the First Amendment. And so, Sarah, let's do it like this. Let's talk a bit about

sort of your overall impression. We'll talk about the legal standard and then try to come to some conclusions. So, I'm really super eager to hear your sort of top line response to this. Well, can't do the top line response without setting the stage for the legal standard. That's true. That's true. Okay. So, here's my top line response. Yes, it does change the analysis because of course it does. In order to violate the first amendment, you have to have a state actor. A private party can be a state actor if it's acting on behalf of the state. So for instance, the government can't get around the fourth amendment by the police coming to you, David, and telling you, David, to search my house on their behalf.

Right. That is a Fourth Amendment violation, even though you are a private person, you're not being paid by the government. But if the police show up to your house and tell you to do that and you feel, well, for some reason that you need to go do that. for some reason that you need to go do that. For instance, they may tell you it's really important to prevent, you know, a terrorist attack. They may tell you those parking tickets that you've got, we can make those disappear. I mean, it can be really anything where you then become an arm of the state, even as a private actor. So certainly this changes the analysis because now we're doing an analysis. Before, when it was the Biden campaign asking Twitter to do something,

there was no First Amendment analysis to do. It just didn't matter whatsoever. Again, in terms of that First Amendment, you may not like it. It may feel yucky, whatever else, that's fine. But so here we actually have an analysis. And the question is, is the language used by the FBI falling on one side of that line than the other? I think the answer to that's very clearly no. We can talk about why. And then second, was the FBI simply using you know they knew what they were doing and the emails they were writing but aside from the actual text of the emails was that arm of the state acting from the FBI through Twitter regardless of the emails

I think there's plenty of evidence that the answer to that is no, because of then what we know happened to some of those accounts. Many were taken down entirely. Some were suspended. Some nothing happened to. That doesn't look like you searching my house. Right. Right. Um, that doesn't look like you searching my house. Right.

Right. But I think that's at least, uh, I don't think people are crazy for wanting to talk about that. Right. Now on the text of the emails themselves and why I say that those don't come really anywhere close to the line, you may not like that the FBI talks to social media companies or to any companies that you deal with as a private citizen, but they do all the time, if they are looking for sexually exploited children, for instance, and have some sort of tech trail, they're going to go to those companies and say, here's what we're looking for. Can you help us? Now, what's interesting is some of the time those companies say no and increasingly are saying no. And it's becoming, for instance, a big problem in the unlocking of iPhones.

Right. Apple used to unlock the iPhones for the FBI. And now not so much. Again, that doesn't turn Apple into a universal state actor. Now, I think in every circumstance I can think of, they either have a warrant or exigent circumstances to go to Apple to unlock the phone. So Apple is, in fact, a state actor there. But my point is that the FBI has constant and pervasive interactions with a lot of companies in the country asking for voluntary help, asking for,

you know, when they have warrants for help that the company can still decline. So I'm not surprised to see a bunch of interactions between the FBI and Twitter. I'm not surprised that the FBI phrases it as take any action or inaction according to Twitter's policies. That's very carefully phrased and accurately phrased in terms of that state actor line. I am surprised with how dumb some of this is and how much time the FBI is spending on dumb stuff. And I think there's a valid criticism to be made there that, you know, FBI San Francisco maybe shouldn't just spend all of their time on Twitter

finding obscure accounts that have 20 followers that are tweeting pretty clearly satirical stuff about the election. I don't like it and I would have no problem with Twitter taking down those tweets, for instance. But the fact that the FBI is flagging those, not a good use of time. Yeah, a lot of it seemed really dumb. And part of it is you have, let's pull out and zoom out for additional context. So remember that there, in addition to the Russian hacking in 2016, there was what you might want to call for lack of a better term, a Russian meme operation. And this was Russians, mainly on Facebook, you know, Jesus and Satan arm wrestling, a lot of stupid stuff that was sort of put on Facebook,

designed to kind of stir people up. And a lot of folks were focusing in on this sort of Facebook meme operation as having something to do with the outcome of the election, which I think is objection, presuming facts, not an evidence. I mean, it looks like the Russian meme operation was just a drop in an ocean of memery around the 2016 election. But there was a lot of concern from the top down about the use of even silly stuff on social media, which I think was overblown from the beginning, but might explain part of this FBI interest

in these silly little posts. But I agree with you completely, Sarah, about the silliness of that intervention. But why would, and I also agree with you on your top line legal conclusion, and let's talk about why. First, let's talk about the general factors. And we actually talked about these factors in recently, because we talked about a case involving the National Rifle Association alleging that New York state authorities had engaged in coercion against businesses doing business, banks doing business with the NRA, warning them away from doing business with the NRA. And the Second Circuit found that in that case that they did not cross a line. And you and I both had some problems with that ruling. But let's not talk about the actual ruling in the NRA

case. Let's talk about the general legal factors. And this is the legal test, Sarah. And as I say it, everyone here will know, huh, this legal test doesn't exactly answer the question. So it says, it's a second circuit. And this is the second circuit test, but it's broadly reflective. And so we have considered the following factors when distinguishing between attempts to convince and attempts to coerce.

One, word choice and tone. Well, that's interesting. Two, the existence of regulatory authority. Well, that makes a lot of sense. Three, whether the speech was perceived as a threat. And perhaps more importantly, four, whether the speech refers to adverse consequences. Now, where would this be coming from? It would come from a case from all the way back in 1963, Sarah. So I'm going to pull out a case called Bantam Books versus Sullivan. And when I tell you about the facts of this case, it's going to sound pretty familiar with a lot of the controversies we deal with today. This was involving efforts to ban books that were deemed to corrupt minors, to contain indecent, obscene,

or impure language manifesting the tendency or manifestly tending to corrupt youth. And a commission was created to notify a distributor that certain books or magazines distributed by him had been reviewed by the commission and had been declared by a majority of its members to be objectionable for sale to youths under the age of 18. a really formal criminal power had the ability to impose informal sanctions and broadcasted that it was going to be providing its conclusions to law enforcement. There was no question that the intent here was to try to coerce or convince through the use of threats that these publishers to drop their books.

The Rhode Island was sued and the Supreme Court said, wait a minute, even if you didn't have the formal power, you had some sanctioning power, you couldn't prosecute yourselves. But the way, the actions you were taking to threaten these publishers with prosecution or to refer the publication to people who could prosecute was did in fact violate the First Amendment. And so this, you know, it's quite clear, as you were saying, that you can threaten a private company if you're the government and that threat can violate the First Amendment. At the same time, Sarah, it's really important to note, as the Second Circuit did, that governments can try to convince you to do something. They can try to persuade you to do something. And that's what we're dealing with is the

line between persuading or convincing versus coercing and threatening. Because I've seen a lot of stuff on Twitter where people say, well, the FBI's very involvement in here is the implied threat. But that's not what the law says. That's not what the law says. The law says that government actors have the opportunity to convince, to persuade. They can't coerce. So any line of argument that you hear that says the FBI's very involvement is proof because it's the FBI and there's this sort of haze of intimidation surrounding the FBI, no, that is not the way it works. It is not that the mere fact that the FBI is involved changes convincing or persuasion into coercion. And so you other cases and the factual patterns of other cases.

And right before I end this little filibuster, let me refer to another case. This is a case called Zeper versus Metzinger, and it's a Second Circuit case. And this is one that's interesting because it's a internet takedown request. So this will give you a sense of, now in this case, they found that the FBI agents had qualified immunity. But that on the substance of the First Amendment claim, there was a question of fact. So the movie was something that was, looked sort of, remember the War of the Worlds controversy with H.G. Wells, Sarah?

Or Orson Welles. No, wait. I mean, I don't remember it because I'm not 100 years old, but yeah, of course. I'm almost 100, but not quite that old. But where there's a sort of a fake documentary that some people think is real

creates allegedly, you know, as the urban legend goes, creates some panic. Well, this one was saying that there was going to be a government takeover of New York. And FBI agents were concerned that that could incite rioting and wanted the promotion for the movie to be taken down. And here's how the Second Circuit described the action. Here, Zeper received a call from an FBI agent informing him that he and other police officers were outside his home

and wanted to speak with him about his video. The agent informed him that the FBI was concerned about the video and wanted to know if there's any way they could prevent people from seeing it. At no time did the agent make clear that Zeper's actions were lawful or that he would not face consequences

for making the video public. The next day, Zeper's attorney spoke to Metzinger and made clear their client had no intention of removing the video that they viewed his actions and that they viewed his actions a First Amendment violation. When the lawyers nonetheless offered to meet with him, Metzinger refused their offer to talk.

Instead, when they expressed the hope that this was over, he told them it was not, and more agents were on their way to Zeper's house and he could not stop them. Although the police may not have expressly told Zeper or his attorneys that he faced punishment for his actions, their decision to send not only an FBI agent, but also three police officers to his home

before even speaking with him could have reasonably suggested to someone in Zeper's position that there might be legal consequences if he failed to accede to the government's request to remove his video. You think? So that's what we're missing in the FBI files right now. We have plenty of FBI interaction with Twitter. We have plenty of FBI agents saying, here are the accounts we think are problematic. What we're missing is conversation intra-Twitter of what they thought the FBI was asking of them. Did they think it was just, you know, outside folks being helpful who have a lot of resources to beef up their own, you know, internal flags around election stuff?

Or is there an email that says something like, we better do what the FBI wants because we don't really know what could happen otherwise? You know, something to that effect of them talking about the FBI's request in a sort of non-open mailbox sense. Interestingly, David, Philip Hamburger, who is a very well-known professor at Columbia Law School, the CEO of the New Civil Liberties Alliance, he had a Wall Street Journal op-ed that is provocative, if nothing else, it gets the people going. He says that he believes there is perhaps enough here to bring prosecution under Section 241 of Title 18. For those who don't have their U.S. code memorized or sitting in front of it, please flip your pages to Hymnal 241.

if two or more persons conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, better known as conspiracy to violate someone's civil rights. Now, this doesn't get around the main problem that we've been talking about, which is still, you can't violate someone's First Amendment rights unless it's the government. So you still need that state action part. But those are pretty hefty charges to bring if you want to then prove the state action part on the back end, certainly. Now, he acknowledges the Biden DOJ, they ain't bringing these charges. He sort of hints that perhaps a future administration, cough, cough, cough, might try to have this novel theory of conspiracy to violate civil rights. Such accountability is constitutionally desirable, not for reasons of retribution, but because without accountability, the censorship will persist.

The platforms probably will reassure their directors, officers and censorship review board members that there's little to worry about. That may turn out to be correct. Section 241 is sufficiently broad that prosecutors should hesitate to pursue it in marginal cases. Boy, David, doesn't that sound like our conversation on, uh, child, um, sorry, sex trafficking and child pornography, right? Like, well, we've got a broad statute. What if we try it here? So I was glad that he sort of had the, like tapping the brakes part of, Hey, if you think this is marginal, don't bring it. But what is this? If not a marginal case, There's no other 241 case I can even imagine that looks anything like this. No, not even close. And he cites no cases on point for the state action problem, except 17th century censorship through cooperative private entities, in this case, a university

and stationers company, a printers trade guild, and then has a quote from Frost and Frost Trucking versus Railroad Commission from 1926. This is where the you can't just use private parties things come from. But sure, the quote is great. It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence. Great, but that doesn't answer our question. No, no. You know, I had this interesting exchange with somebody recently where they were at. The question was this. If you want to deal with a legal issue, would you prefer to have a law professor write on it or a practitioner write on it? I go with practitioner.

Nevertheless, this is an interesting, provocative piece. I just think it's provocative, the idea that you would bring civil rights charges. The problem is the whole thing is on the civil rights charges and not on the underlying state action in the first amendment. Um, you know, noting for instance, that little coercion or even economic pressure is necessary for a free exercise violation, but free speech violations, at least according to the text, don't even, don't need even a gentle prohibition. The idea being that you have to prohibit the exercise of free, um, of religion under the first amendment, but you merely need to abridge it, the freedom of speech. But of course, that's not exactly what the first amendment says. It says government, right? Congress, it says Congress.

Yeah. Um, but you know, we have broadened that to mean state actors. Yeah. So state actors may not abridge the freedom of speech. So you end up back in the same problem over and over again. I haven't seen it yet. It could be out there because again, we need those intra Twitter communications to talk about how they viewed the FBI. But short of that, you certainly don't have the text of the emails from the FBI, including sort of magic words, language that could turn this into state action.

And I don't think you have the penumbra of that either. The text, yes, it's written pretty carefully in my view, although casually, but carefully nonetheless. But I don't even see the or else or the really, really, you should probably do this embedded in the context even. Yes, it's for your action or inaction, according to your terms of service. Yeah.

But for instance, if they said that and then wrote back and say, hey, we still see that tweets up. Did you get our previous email? And then a follow-up, hey, we still see that tweets up. Did you get our previous email? And then a follow up. Hey, you know, that tweet's still up. I'm wondering why you haven't taken it down yet. That would give me the penumbra, regardless of whether they said action or inaction, because then it would mean inaction wasn't really an option. You're going to get harassed by FBI agents. But we don't have that, at least in what's been revealed. Right, exactly. You know, so that's the thing with these sort of drops.

You don't know what's dropping next or what's, so you're always based on available information is your caveat. But yes, and the, you know, when you think through this, think about, for example, how much and how vigorously the government tries to convince people to take action. Okay. And far more vigorously than this FBI email. Think about committee chairs in Congress who see Twitter engaging in moderation decisions it doesn't like or Facebook and doing what they

did over the last four to five to six years, haul them in front of the committees that have regulatory authority over them. Is that a First Amendment violation? No, it's not a First Amendment violation, or at least there's no case. At least not yet. At least not yet. No case ever saying that it is. Was it a First Amendment violation

when the president of the United States said about Colin Kaepernick and all the kneeling football players, fire them? Well, he's a chief law enforcement authority in the United States. His agencies have an enormous amount of regulatory authority over, you know, the way the NFL does business. But was that a First Amendment violation? Again, not under current case law, not under the way we conceive of this doctrine right now, because we do in fact give public officials broad ability to try to convince and persuade. And in many ways, it's one of the reasons why they're elected, is they're elected to provide

and not just a lawmaking function or a law enforcement function, but they're also elected to speak and use their respective bully pulpits. And so that's why we have to be really careful about this doctrine. And the first time you hear somebody say, well, the mere involvement of the government means dot, dot, dot. And if the answer is, well, then that means First Amendment violation. Well, you know the person has not paid close attention to this area of law at all because it takes a lot more

than even vigorous attempts to convince. Now, the FBI piece of this does elevate it because the FBI does have that immediate law enforcement, has that, the power to arrest, for example. But, and that's where you look at things like the Ziegler case. Where has the court traditionally, where have courts traditionally intervened? And there, you know, you have something that seems to be very different than what we know about Twitter interaction so far. FBI agents show up. We say they're on your way to your house. It's a different order of magnitude than an email that says for your action or inaction. And so that's one thing that is, that's the core question. They have a right to convince.

Well, if they try to coerce, the First Amendment starts to lock in. Where's that line? Here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots it over the line. What a goal. How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC Cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply.

All right, Second Circuit time. This is the first big lawsuit we have that has the potential of going to the Supreme Court about the participation of trans women in women's sporting under Title IX. And a unanimous panel decision holding that, nope, there's no standing for female athletes to bring this case in the first place and that they lose basically. Why don't we get to what we think will happen at the Supreme Court or with this case later and spend just a few minutes walking through some of the reasoning of this case. The facts are exactly what you think they are. It's track folks, track women who were competing at, you know, top tier universities. They were competing against trans women. The trans women often won, but not always, which the court found very relevant. I'm not sure that I do. So the first thing they looked at is whether these women

had actually suffered an injury. In fact, I mean, God, we've talked about standing plenty on this podcast, David. So we don't need to rehash all standing doctrine here, but they found no injury where the plaintiffs represented by ADF, Alliance Defending Freedom, by the way, they make a somewhat novel case that the injury is from a deprivation of the chance to be champions. Okay, so to start, Title IX basically says no person in the United States shall on the basis of sex, be excluded from participation in be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance. So all of these schools that we're talking about, we're receiving federal financial assistance. So basically track is an activity at the school. They can't be excluded

from participation or be denied the benefits of that activity. Okay, so the second circuit basically says, look, the case you're citing and this chance to be champions claim is a case called McCormick in their precedent found that female athletes suffered this deprivation, the chance to be champions in violation of Title IX when the school district scheduled girls soccer in the spring and boys soccer in the fall because participation in state championships for soccer was available

only to teams scheduled in the fall. But the injuries suffered by female athletes in McCormick is easily distinguished from plaintiff circumstances here. In McCormick, the school district scheduling decision afforded male athletes and simultaneously deprived female athletes of the opportunity to compete. They put in italics at state championships, the chance to be champions. Here, the policy does not deprive plaintiffs of the opportunity to compete at state championships. Yeah, but it prevents them from winning. So again, for me, David, imagine a case in which take out the trans part of this. I want to try to strip this of the politics.

Imagine a case in which a school said, we sort of have a varsity and a JV. The varsity, anyone can compete for, but of course, all men are going to make the varsity team. The JV team is also open to anyone. And the result is that a bunch of men who weren't good enough to make varsity against the best men, but can often, but not always beat the best women, you know, club men can't usually beat varsity, sorry, can usually beat varsity women, but not always certainly. Uh, so now that's the way that they do it instead of having a boys team and a girls team would that violate title nine of course it would like nobody disputes that that's what sort of bonkers about this and the fact that they don't distinguish it from that scenario why would that

violate title nine well to me it's pretty clear because they're being denied the benefits of having a track and field program that they could actually, you know, consistently compete against like situated people. The men in my JV example are not situated in the same way at all. So they are being denied those benefits on the basis of sex. denied those benefits on the basis of sex. Here they said that the fact that you're allowed to compete and that you sometimes lose means that there's no Title IX violation, but they never really discuss who they're losing against. And that's, to me, the question we're missing here.

Because if they were losing against men, we would say there was a Title IX violation. But if they're losing against trans women, then we're having a different conversation. I'm fine with having that different conversation with the legal standard. But don't tell me that simply because you're allowed to compete against the men, that somehow you're not being denied your Title IX rights. That's a joke. Yeah, that was the conceptual fail here in this case. So just to give you a sense of this, and let's match this with the statutory language. So Title IX prohibits

discrimination on the basis of sex. So if you said, okay, here's my facially neutral policy that does not discriminate on the basis of sex, which is everyone can try out for the basketball team, or everyone can try out for the football team, and you end up with only men, well, of sex, which is everyone can try out for the basketball team or everyone can try out for the football team. And you end up with only men. Well, of course, football, let's put aside football. Everyone can try it for basketball. Everyone can try out for volleyball. And you end up with only men in the varsity. Now your, your policy might be sex neutral on its face, but the effect is grotesquely sexually discriminatory when you're talking about equal participation

in activities, right? And so the question here isn't, did they have a chance to run, as you're saying? That's not the- It just isn't seen. It doesn't make any sense. That's just not anything that Title IX has been held to say or protect at any point.

I mean, we've gotten into funding wars about how much, you know, you have to have equal funding of the women's track team and the men's track team and things like this. I don't think it's ever occurred to anyone to say that like, oh, well, you can have the men, you know, be in that team as long as the women are allowed to run. I mean, they'll lose, but like they're literally running around the track. Congrats, ladies. Yeah, great., I mean, they'll lose. But like they're literally running around the track. Congrats, ladies. Yeah, great. What?

Yeah, yeah, exactly. So they just totally brushed by the sort of the core disputed issue. Now, here's the question, Sarah, that I wanted to ask you to see if you thought. Let's suppose, let's be in Earth 2. And in Earth 2, they actually deal with the real argument in play, which was the inclusion of trans girls who were born biologically male created a competitive disparity that deprived these women of equal opportunity to compete and to win. So is the question, the question that I have, and this, this to me is like the really much more interesting question, which is this, um, are you denied your opportunity when it's one or two or three athletes out of the several thousand, um, girls, women and girls who are competing in sports out of the many thousands, it's one or two or three athletes. And I think that is the interesting question from

a Title IX perspective, because the logic of Title IX, of the logic of men of having separate men and women's sports programs is that aggregate view, that aggregate view that says, if you just have unisex sports programs, it's going to be all men. So you need to have the separate sports programs to provide in the aggregate opportunities, equal opportunities for women and men to compete in various sports. But again, if you had three men

competing out of a thousand and they kept winning, not every time, sometimes they lost, but rarely most of the time they won. Yeah. We wouldn't even, it wouldn't be close. Right. So, so you get, so you drill down into what the real issue is, which is, are people who were born with male sex at birth and now have diminished their capacity by taking drugs, by having surgeries, whatever that may be,

their testosterone level is lower. Where does that fall on the line? Is it like having men compete against the women? Right. Or is it simply women who have a distinct advantage over other women? But nobody wants to have that conversation because then you're getting into some kind of nitty gritty stuff about trans life that nobody wants to do. I understand why, by the way, I don't want to get into it on this podcast, but that is the legal question. It's not to me. Well, we only had three men competing

against the women in the track and field thing. So, I mean, there were like a thousand women, they were all getting to participate and that's why they were able to get second place, fifth place, sixth place, really consistently. This one woman got sixth place good for her except and this is also something that i thought the court just wildly got wrong so they can point to their uh injury the chance to be champions which the court rejects but they also reject redressability meaning there's nothing the court could do to make you whole anyway. Right. Because what they're asking for is sort of the recognition, basically take those trans women out of the records so that they suddenly become the Pennsylvania state hurdler champion

or whatever it is. And plaintiffs argued that an injunction changing the records would remedy the fact that plaintiffs feel, quote, erased by the current records because the injunction would give plaintiffs additional public recognition for their athletic achievements and hard work. But absent a proper means to alter the records, a ruling from this court would give plaintiffs nothing more than, quote, psychic satisfaction, which on its own is not an acceptable Article 3 remedy because it does not redress a cognizable Article 3 injury. What? Yeah, no, no, no, no. That also is nuts to me because it's not that they simply want someone to pat them on the back and say they're the state

champions. They want to have college scholarships. And to the extent that they're out of school, you run into this. I mean, this is the core of election law and high schoolers and college students with injuries, but no redressability is the concept of capable of repetition yet evading review. The idea that just because they're not in school anymore, because the court system took too long, as long as you were diligent about it, and that basically no plaintiff would be able to get this litigated in time. I mean, that's a mootness doctrine, but to me, it applies here too. Yes. The only way to fix this for their college scholarships, for the money that they can make as athletes out there is to

change the records. It's not that they want to have like some t-shirt that says I was the state champion and you didn't know it. Well, even if the, because the court did say, look, they went on to college and they are competing in college as college athletes. But even if the redressability was you are not champion and now you're champion, that is actually a remedy. That's a remedy all by itself. As we've seen from many cases in track and field where there have been changes in outcomes based on failures, for example, of, you know, drug tests and whatnot. And so just simply change, simply changing the results is a version of redress of grievances. And yeah, I agree with you, Sarah.

It was as if the court was going out of its way to really dive into the actual case brought by the plaintiffs. And like you said, I understand why that happens. I understand how fraught this issue is. But a legal claim was brought on the basis of a particular legal theory that is just evaded. It's just evaded completely. was where, you know, where I did have sympathy for the defendants was they walked through the Title IX, the variability of Title IX interpretations. Indeed. From administration to administration. So under one administration, essentially what the plaintiffs were asking the court to rule is the court to rule that these plaint, these, that the school should violate Title IX as defined by a democratic administration.

And then when the Republican administration lifted the change Title IX guidance around trans issues, it did not, and this was interesting, prohibit the inclusion of trans athletes. So it just said, you don't have to include trans athletes, but it did not prohibit the inclusion of trans athletes. And so, but at the same time, this is kind of all a dodge as well, because Title IX's got to mean something in this context, right? But David, how do you think Bostock interacts with this? So in a different title, you have Justice Gorsuch saying that that language on the basis of sex includes sexual orientation and gender identity. So doesn't the school also run into a problem if they don't let the trans women compete on the women's team?

Well, yeah, let me put it this way. So they're violating both the women's rights and the trans women's rights somehow. But if you're going to be, yeah, so this gets down into, this is going to have to be settled by the Supreme Court. Like there's just no. And everyone brought this up when Bostock came out. Everyone was like, flashing red, title line lights. What does this mean?

Yes. Now, one version of it is, no, it means that trans women can compete against the men to get on the men's team, but they won't make the men's team. So that's both hollow and in some ways, exactly what Title IX is meant to prevent. The idea that you're in an unfair competition, you're being denied the benefits of a program

on the basis of sex, which now we can substitute in on the basis of your gender identity. So making trans women compete to get on the men of sex, which now we can substitute in, on the basis of your gender identity. So making trans women compete to get on the men's team, I think would clearly violate that if the Bostock interpretation holds in the Title IX context. But I think it clearly violates women's rights as well, if you can't already tell by my sort of outrage tone.

Yeah. So I think the schools are in a really tough spot, David, to your point. violates women's rights as well, if you can already tell by my sort of outrage tone. Yeah. So I think the schools are in a really tough spot. Hugely tough. David, to your point, I know nine people who have to resolve this. Yeah, there are nine people who have to resolve this. And the interesting thing about this is if you're going to take sort of this, for lack of a better term, hyper-literalist approach to Title IX, you would say, well, isn't having separate men's and women's teams a form of sex discrimination right then and there?

But everyone knows that's not what we're going to end up with. That's not what we're talking about. Supreme Court, not in 1 million billion years, is going to say that here's what your athletic program has to be. Gender neutral. Whoever can run the fastest is on the track team. That's not what it's going to do. It's going to have to decide whether the inclusion of trans athletes results in active, it creates a discriminatory environment for people who were born female. That's what they're going to have

to decide. And David, I think it also is worth noting that while your example is absolutely accurate factually, that we're talking about, let's say three out of a thousand athletes, and that's probably high, frankly. Oh, that's way high. Let's say it's three out of a thousand who are competing at this level, sort of state championship level. You have to come up with a rule under the law that could work if it were half. Right. You know what I'm saying? Like the fact that it's three now and we can kind of brush it off and say, well, look, these girls got fourth, fifth and sixth.

Like, sorry, but like schools will start to understand that they should give scholarships based on that. Even though again, at the college level, the same thing, if they want to win state championships, what you want is to recruit trans female athletes, it appears. Um, but you know, it's only three, so they're going to have to recruit some women as well. Yep. That is certainly the facts on the ground. But the problem is the theory of the law has to cover the other hypothetical as unrealistic as it may be, certainly now and even in the future. I don't, you know, this idea

that you're going to have a whole bunch of men who couldn't make the men's team suddenly decide they're trans women to be able to make the women's team just the shot of winning the state championship. That's not at all what I'm saying is going to happen. I don't think that will happen. But you need a theory of the law that works in all cases and doesn't just shrug because it's not a big problem right yeah i do not buy the rhetoric that says

this is the end of women's sports like i that that kind of rhetoric i just don't buy that but there is a question in these cases that has to be decided and it has to be decided by the formulation of a legal rule, right? And if the legal rule is something like, well, Title IX is only implicated when there is a material impact on the prospects of women to participate in sports, well, then you're going to have to come up with the definition of what is a material impact. In other words, how many people, for example, would be so many people that it would have a material impact on opportunities to compete. And this is something, and then, you know, at the risk of, at the risk of, you know, really diving in too much here, let's just, you know, one of the

things I think that is important to note is that the law has always recognized sex distinctions in a way that it doesn't recognize race distinctions. So, for example, you cannot have a BFOQ, bona fide occupational qualification that says, well, we can inhibit access to a particular job on the basis of race. Nope, can't do that. But you can in very limited circumstances say that you can limit access to a job or to particular facilities on the basis of sex. And so, for example, to pull a Supreme Court case from years ago, could you have a law that says no female guards at a male maximum security prison?

Well, yes, you can do that. Are you required to do that? No, but yes, you can do that. And I think that what we're gonna end up getting here, Sarah, if the law gets sensible, is that when you throw in the analysis involving trans athletes and trans individuals into non-discrimination statutes, what you're going to end up with is a version of a BFOQ. You're going to end up with a version that says there are some places where biological sex

creates a distinction that is material and should impact the law. And that's, I think, what you're going to potentially end up with here. But... Welcome to intermediate scrutiny. Yes. It means nothing. Yes. It's whatever you want it to be. Yeah, this is quite a case. I don't know. I don't know what the Supreme Court

will do here. But so here's the problem. Generally speaking, if this were any other case, I would tell you the Supreme Court is not going to take it and that it wouldn't be very close because this is the first and the Supreme Court generally waits for circuit splits. However, this is a bit unusual and it falls a bit more in line with cases that we've seen the Supreme Court break out of that mold to take. It's decided the quote unquote wrong way. The reasoning isn't very good. And I don't mean good, meaning that it came out the wrong way. I mean, it's not very thorough. It doesn't really address some of the real legal issues. So I put this actually at a little over 50%

of getting a cert grant. Yeah. Not much, but a little over. Yeah, that's interesting. I would say certainly greater chances than average, but I'm surprised to hear you say over 50%. But I see it. I can see it.

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Something played out in the comment section, David, that was so delightful. And I'm not sure we've had it before. So I had my little rant about attorneys general and solicitors general and how you shouldn't call them general and that the Supreme Court justices were referring to solicitor general pre-logger as general. And it really bugged me that they didn't have the correct grammar. And so everyone in the comment section, not everyone, a number of people jumped in and said

you're just wrong though about military generals they are general officers to which i thought uh-oh they're right military generals are general officers and it's the same right that's the adjective um for officer the fact that you put it on the front instead of the back shouldn't make any difference. So then there was comments after that from military folks. And I'll just read one example. While generals uppercase are general officers lowercase, they are not general uppercase officers. No one ever saluted General Officer Eisenhower. The title does not exist. While etymologically the rank derives from Captain General, the captain has long since disappeared. The rank is general and general officer in turn derives from the title. You are right to maintain that for the solicitor general,

derives from the title. You are right to maintain that for the solicitor general, likewise attorney and surgeon, general is the adjective and we pluralize the noun. Conversely, one pluralizes military generals, i.e. lieutenant generals. To call the solicitor general general is to switch parts of speech and confuse the title with the military one. So yes, they are general officers, but that is not their rank. Their rank is in fact general. It took us a while to get there, but I was right. Then I was wrong. And now I'm right again, except I didn't know any of that. So I'm not taking a victory lap on this one, but thank you all for diving into that. I feel like much better and well-informed. Yeah, it makes all the sense in the world. So, for example, when you have multiple solicitors general in a room, you say solicitors general.

But if you have multiple lieutenant generals in a room, you don't say we have multiple lieutenants general. That's right. Yeah. General is the right, yeah. That's what i call excellent quality commenting right there agreed uh so there was a lesser grammatical feud in the comment section but nevertheless i said that something happened on accident david instead of by accident and people were like does sarah know something we don't know about grammar is she just wrong is she a redneck hick who doesn't know how to speak properly

um it's a little bit of both so in looking this up by accident is uh you know, sort of the accepted version. But at this point, on accident is two. It looks like it's regional. Now, originally, it looks like on accident came from the opposition on purpose. So because you were saying on purpose, the antonym of that phrase is on accident, which would make it kind of incorrect, which I think means I was wrong. on accident, which would make it kind of incorrect, which I think means I was wrong. But at this point, grammarians are not really saying that it is wrong to say on accident because there's not a great prepositional cause for by versus on. So this is something that can be, is this one of these cases where something can be

wrong for so long that it becomes right? Like how? It's not, I mean mean you make it sound like literally yes and i don't like that my version of why i'm correct is because literally has become to mean figuratively because it's not that it means the opposite of what it was supposed to mean it's just that the on and by but it's not good it's not good i will i will strive to do better i know children are listening to this podcast and they should hear English the way that it's meant to be spoken or something. However, their young ears should not be exposed to on accident.

Right. I've been so interested though, listening to that, um, the history of the English language podcast. Uh, we had the host of that podcast on as a guest earlier. It's a great podcast, but so much of what we consider grammatically correct or incorrect actually didn't used to be the case. We've added that often in the 17th century as sort of printing and, you know, spellings became solidified, grammar became solidified. But for instance, became solidified. Grammar became solidified. But for instance, one that I just learned was that the they as a singular, uh, used to actually be correct because you used to be plural. The, um, uh, the, thou, all of those were the singular and you was the plural, but we dropped the thee and thous and we've kept the you as the singular so they anyway um so you know that's all

to say this isn't nearly as hard and fast as as we think it is next up the whales is is correct even though it is their title it is also their surname if you will so uh william and kate are the whales is that's fascinating and it makes sense because speaking of another podcast, I've been listening to the Revolutions podcast and it starts with the English Civil War. And one of the interesting things that becomes difficult is that when somebody is sort of promoted into the peerage and they become sort of like the first Earl of Buckingham,

then they're named Buckingham. That's right. Yeah. Oh, yeah. It becomes very confusing, by the way. Yeah, like I'm very into Tudor England history. And that's hard. Yeah.

Because the Buckingham in particular keeps switching around. It's interesting that you would change your name to your title. Damn right. You want people to know. Yeah. Co-host. But of course they used to be the Cambridges. Right.

And now they're the Waleses. So that's sort of fun. But again, we don't care one bit about them because that's why we fought that war. Yeah. It's just that I am interested in the grammar of it. Well, and lastly,

yeah. I was just going to say, and because, because you can just keep calling me David, you don't have to refer to me by my title, co-host. Last up, I asked for country music songs. I got some awesome recommendations, but I am a little embarrassed because obviously I knew mamas don't let your babies grow up to be cowboys, but I didn't say it. Um, on the flip side, I have been playing him rhinestone

cowboy endlessly. And that song gets annoying really fast. Like not as fast as the Toby Keith song, but pretty fast. That being said, those were the two most popular entrance into the cowboy music for a two and a half year old. But there were some deeper cuts that were awesome. And I'm making a whole playlist. So thank you commenters. And of course, just to plug it, if you want to hop in the comment section for 10 bucks a month, you can go to the website, you go to advisory opinions, you get on the latest episode, hop in the comments. It's really fun. David and I are there. We get good ideas for this podcast and what we're going to talk about next. Good country music suggestions and debates over rank titles.

So it's a lot to come for. And also, if you read our comments, you will hear from some of the most expert people in their fields. Like, no joke. You will have, you know, someone will pop up when we talk about antitrust

and we always give this malpractice warning when we talk about antitrust, which is like, this is really complicated and we're just doing our best here. And then you'll see, hey, antitrust lawyer here and or, you know, we'll talk about something to do with personal, you know, plaintiff's personal injury law. And someone will say, class action personal injury lawyer here. And so you'll hear from experts in their fields and it's really neat. It's really fun. So plug. So David, I want to save a couple of the other things

that aren't really potpourri. We'll call it, yeah, Christmas conversation for our last pre-holiday episode on Thursday. Yeah. But it'll have Justice Kavanaugh. It'll have Judge Pryor. And we'll see what else. Yeah.

No, it's going to be good. It's going to be good. Well, if you liked this podcast, please go rate us. Please subscribe. Please check out our work at thedispatch.com. And we'll be back on Thursday morning.