Advisory Opinions - Biden's Coercive Social Media Tactics

Episode Date: October 24, 2023

Sidney Powell may be the best lawyer ever, SCOTUS might finally have a tech term, and David’s humble brag didn’t get past anyone. Sarah and David fly through a mix bag of legal topics including: -Presidents coercing social media platforms -Plea deals from fraudsters -“Cheese-bro” -David brings up trans issues -Sarah brings up feminism -Law firms dealing with “unlawful” affirmative action practices and fellowships -A gun case -ANOTHER gun case (but with ghosts, kind of) -Employment division triggers David -And...pot-smoking generations Show Notes -Bong Hits 4 Jesus Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgard, that's David French, and a bit of a potpourri episode today, catching up on all the things. David, can we just start with a very quick question that I have, which is we got a lot of comments from our clip versus magazine discussion but the comment was you shouldn't have used the word bullets what um there's so much I don't know I know I know I know Sarah as soon as that as soon

as the word came out of my mouth I thought thought, should I just pause now and rerecord that? Because sometimes you're in a stream of talking and the right word escapes you for a moment. The bullet is part of the round. So the round includes the bullet, which is the projectile that comes out of the weapon. includes the bullet, which is the projectile that comes out of the weapon. The propellant, which is the gunpowder, et cetera, the primer, et cetera. And so a round is the complete cartridge. Okay. That's the whole thing that you hold in your hand. That around that's why it says a 30 round magazine and not a 30 bullet magazine but yeah as soon as i said it i was hoping against hope that people would just let it go you know but i know gun people sarah and and i knew i knew that was coming back glad

we've got that cleared up i mean my goodness that's very important yes uh all right let's start at the supreme court we have a stay and a cert grant in that missouri social media case murphy versus missouri uh this has been bouncing around a little bit david but in short this is about whether whether the Biden administration's communications with social media companies may or may not have converted them into state actors, whether it was coercive, basically. The question actually for the courts has been, though, what to do in the interim that that case is pending and whether to issue an injunction against the Biden administration from communicating with social media companies. The first injunction from the district court,

very, very broad, sort of no talking to social media companies with some small exceptions. It was narrowed by the circuit court. It went to the Supreme Court and there was an administrative stay put in place. Then interestingly, that administrative stay was extended for a few more days, so we kind of knew someone was writing something. So here's what we got on Friday. The application for stay is granted. It is also treated as a petition for certiorari, and the petition is granted on the question presented in the application.

This is on the bigger question, of course, on what is that relationship? What is coercion? But we had a dissent from that grant for the stay from Justices Alito, Thomas, and Gorsuch. Very interesting. David, what do you think? Yeah, this is very interesting on multiple levels because if folks remember, we've talked about this case at every stage. This is one of those rare cases that we talked about at the district level, the appellate level, and then now SCOTUS. We followed it all the way. We'll keep following it, of course. But if you remember, you were generous in calling it a

broader injunction. It was sort of the Godzilla of injunctions early on. So you had a district court stay or a district court injunction against a host of entities and officials related to alleged coercion in censoring social media posts. So it was this giant, giant, giant, giant, giant injunction. Goes to the Fifth Circuit. The Fifth Circuit opinion is interesting because it does identify some things using the NRA versus Lulow test that we've talked about before, a second circuit test on what's coercion versus convincing. But it was a kind of a stinging opinion towards some of the conduct from the Biden administration, but really a pretty narrow injunction.

It went from the Godzilla injunctions, narrowed down to something really pretty small, which is first, the Biden administration may not coerce social media platforms to make content moderation decisions. And second, they may not meaningfully control social media platforms' content moderation efforts. So that goes to SCOTUS, and that is what has stayed here, not the Godzilla injunction the Godzilla injunction was already really pared down which led to one of these funny Twitter moments where by all measures the district court was pretty substantially rebuked I mean when you narrow

an injunction that much it's pretty substantially rebuked but all the people who want more government control of social media were like high-fiving each other that, see, the Fifth Circuit saw what we saw. Well, it was a mix. It was a mix. The Fifth Circuit saw some of it and not a lot of it. And then in reading the dissent from Alito, Gorsuch,

and Thomas here, Sarah, I got to say they have a point, okay? Yeah. So here's the point that they have. And the point is this. So remember the two elements here of the injunction that has been stayed. So this is an injunction that has been set aside is you cannot coerce and you cannot meaningfully control

you cannot coerce social media platforms to make content moderation decisions and you cannot meaningly meaningfully control social media platforms well that's just a statement of the law pretty much yeah that's kind of the law right i mean but the problem is no one really understands the parameters of what that means yes kind of loosey-goosey words that's the of the law right i mean but the problem is no one really understands the parameters of what that means yes kind of loosey-goosey words that's the whole suit like the government says we weren't coercing or meaningfully controlling and the states are like yes you were so the injunction saying don't do the thing that you say you weren't doing that the other side says you were doing like that's the debate so i think i see why why we at why we're at where

we're at but of course there's two other reasons why the supreme court stayed the injunction one i don't think it actually gave um meaningful guidance to the government yes they could or could that's the weakness yeah two and we've talked about this a lot, there's a majority of justices on the court that are very hesitant to dive into emergency docket land. And so the question is always, what is the status quo that we're preserving? That's hard when you're talking about a new government regulation or new government policy. Here, not so much. The status quo is clearly government continue doing what you're doing. We'll decide whether what you're doing is a problem. So I think the status quo was much easier to ascertain in this situation. Yes. Yes. I agree with you. It was interesting

because when I saw that critique from Alito Gorsuch-Thomas and they're kind of like, wait, what? It says don't co like wait what it says don't coerce it says don't meaningfully control and is that's that would be that we know that that's already the law but you're right um there's another couple there's another element here which could play into this which is and again we're kind of at a shot in the dark. One is, well, we have not really defined what coercion control is. It sort of begs the question in a way. Then another one is,

it's possible that at least some elements of the majority looked at the conduct as articulated in the cert petition and said, if that's what they're saying is coercing and controlling, that's not coercing and controlling. And so that's a possibility as well. We just don't know because there's no opinion out there. So I thought either the coerce and control language is just too broad, doesn't give meaningful guidance, or, hey, they want to hear this in regular course of business.

And as you were saying, status quo. Or they read the court papers and said, this isn't coercing and controlling. It's the merits. Yeah. Or at least a quick look at the merits. A quick look at the merits. And in truth, it's all three.

Of course, it's all three. Of course, there's some potpourri here. It's a soup. And there's a lot of ingredients in the soup. Look, anytime this sort of thing happens, it's good news for the side that wins the injunction. This is the criticism of the emergency docket is that they are, in a sense, deciding cases

by deciding the injunction side. I don't think that's quite true here. Again, they granted cert. But I'd certainly rather be the Biden administration today heading into the Supreme Court than the states. That being said, you know, and we haven't done a full dive through the whole record, but, you know, I've read the appellate briefs and the opinion, and there was some stuff that I thought specifically from the digital director in the Biden administration. And I think I mentioned this before where, you know, he's not a lawyer.

He's a comms guy. And he's shooting off these emails to like flex basically and like, you know, push the social media companies to take down content he doesn't like. And if you're in the White House counsel's office, I'm sure you're looking at those going, are you serious right now? Oh, God, come on, dude. He's doing the very thing you're not supposed to do, which is do this or I'm going to have to talk to people about punishments. The best defense that they would have of that language, because we walked through some of that language before, and my thought was, if this doesn't cross the NRAB below threshold, which is what they were applying, I don't know what, you know, not sure how good of a defense this is, Sarah, is that those entities and individuals who had actual enforcement authority were quite careful in their language. And this dude, who's just some dude

in the executive branch who has zero enforcement authority. He's like the social media guy, basically. Right. He has no cops he can call. I mean, like at his beck and call, he has nothing. He's just the social media guy, basically. Right. He has no cops he can call. I mean, like at his beck and call, he has nothing. He's just a dude yelling. The best defense to that is, well, he's just a dude yelling.

He has no authority to back it up whatsoever. Now, the answer to that is, well, he's in the Biden administration. He's a senior staffer in the White House. He's a senior staffer in the white house he's a senior staffer in the white house it's not that hard for him to pick up the phone right and the social media companies don't know yeah they they don't know if you know he's got a direct channel to fbi whoever and so yeah it it's hard for me to imagine. Let me put it this way. If some of his ranting is not considered coercion, then the definition of coercion, we're kind of in a new,

we're going to be kind of in a new frontier. So there's the definition of coercion. Like does, you know, if you're saying as the, again, when I say social media guy, I mean, the guy who's like, you know, approving social media posts and I mean, the guy who's like, you know, approving social media posts and stuff like that. Right. Um, and, and rapid response type stuff within the administration. Um, you know, if the question is one, him saying, take this down or else I'm

going to go figure out what we're going to do about it. Is that coercion? David, to your point, it is that coercion david to your point how is it not right two um there's also i think an argument that i find the most unpersuasive but it's interesting which is okay but the executive branch has 400 million ways in which it can coerce people does it need to be connected i.e take down the social media post or i send the fbi for instance or can it be take down the social media post or i'm gonna have someone call members of congress to look into legislation about 302 protections that may or may not go anywhere, but it's going to cause you a huge hassle and make you spend some money on lobbyists. Is that coercion? Yeah, I don't think that's coercion. Like, do this, take this down,

or I'm going to start some sort of legislative process that depends on 15,000 contingent actors and blah, blah, blah. No, I don't. See, I don't know. That's funny. So I found that, you find that actually to be a pretty persuasive argument that it's not coercion. I actually find that to be one of the weakest arguments because it worked. Like, doesn't it matter that that type of coercion actually worked?

The stat that they had, and again, like we can't, like we're taking it in the light, sort of most favorable, was that they took down about 50 of the posts that this dude asked them to take down on the one hand maybe that's a low number like if the coercion were really effective you would expect it to be 80 or 90 or 100 if it was really coercive like gun to your head coercive it should be 100 on the other hand 50 percent's pretty high and maybe they had just determined that 50 percent was about what would keep them

away from that regulatory coercion that again it's not the fbi is going to knock on twitter's headquarters but it's that regulatory process that legislative process um you know maybe threats of an antitrust investigation you don't really think they're gonna do it but if you don't take down some of them they're gonna do it like where's that line not on the front end of what constitutes coercion in the language but the evidence that it actually was coercive. And the other complicator here though, and now again, this is a huge record, so I cannot represent that every complaint followed this pattern, but as a general matter, the government's defense to some of its conduct has been, actually what we were doing are highlighting posts that already violated terms of service,

posts that already violated terms of service. And we were doing what anybody can do, which is report violations of terms of service. Now, they did have a special channel, say, that you and I don't typically, say, email senior executives and say, can you take this down? But there... Yeah, although that being said, campaigns, like when I was on a campaign, I absolutely had that. Right, yeah. So a lot of people have a line into these social media companies and they would say, we have identified a violation

of your terms of service and we're demanding that you take it down in accordance with your terms of service. And under that circumstances, it'd be interesting to know sort of what is the ratio if a political campaign calls in, if anybody else calls in and identifies a violation of the terms of service, what ratio, what percentage of takedowns exists. And so, you know, part of the

defense again against the Biden administration has always been, well, these are extremely sophisticated corporate entities represented by some of the most capable counsel. And they have all they did is weighed these complaints the way they would weigh any complaint. And some of the posts did, in fact, violate the terms of service. And we took those down. And the ones that did not violate the terms of service and we took those down and the ones that did not violate the terms of service we left up um so there's a lot of factual questions here but the language from this biden social media guy let me put it this way if he was actually clothed with regulatory authority um over the social media companies, like actual regulatory authority, then it seems to me it's open and shut. It's just a slam dunk. He's telling them to do stuff.

If he's just sort of like chief job owner of the Biden administration with no regulatory authority, that makes it a little bit different. But yeah, this case is really going to depend on the details in a way that's going to make a lot of people unhappy online because they're going to want to end up with something that says whatever the government says, social media companies have the ability to completely, whatever social media companies say, the government has the ability to completely, whatever social media companies say, the government has the ability to completely,

or whatever the government says, social media companies have the ability to completely disregard in theory. So therefore there's no coercion, et cetera, et cetera. They're looking for the big sweeping ruling here and it's really going to depend on the facts. And it's really, I think, largely going to come down to this guy he's going to be the center of it and what kind of authority

he had and what kind of authority that would somebody reasonably perceive that he had by the way you can tell that he came from campaign world because that's exactly how campaign people have to sort of treat reporters or social media executives or whatever trying to like make their case um i i felt like i recognized those emails okay there's one last part of this uh stay and dissent that we need to talk about david it's the alito thomas gorsuch part of it yes i was leaving that for you sarah uh right so this is the 3-3-3 court argument. And you've got the three justices lining up behind this dissent from the stay. What does it tell us about the tech term, David? Because remember, we've got this case. We've got the can you block people on social media if you

have a government account, combined cases. And then you've got the Florida and Texas social media bill cases disclosure husband of the pod represents in the Texas case against Texas. Yeah. I mean, this, you know, we said last time was a tech term. And then with one sentence, Elena Kagan wiped that all out. She was the, what was the quote? We're not exactly the nine best experts. But these are cleaner cases that really, you don't necessarily have to be an expert on the internet to decide. And so there's a couple of things. One, I think we're seeing, because if you remember, if you go back to the original NetChoice Fifth Circuit injunction,

that was 5-4, remember? And Gorsuch, Thomas, and Alito were in the minority, unless I'm completely blacking out on that one as well. So that was 5-4. And Kagan, I believe, joined them, which we talked a lot about at the time and thought it might have been more related to some emergency docket disagreements. But that was interesting where we saw Thomas, Alito, and Gorsuch. We've seen Thomas make noise in other circumstances about extending more government control into content moderation. Yeah, Sarah, this does look like one of those cases where your 3-3-3 formulation is going to spring to life. So we'll see. We'll see. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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really easy. Right now, Aura has a great deal for mother's day listeners can save on the perfect gift by visiting oraframes.com to get 30 off plus free shipping on their best-selling frame that's auraframes.com use code advisory at checkout to save terms and conditions apply okay next up we've got the plea deal from two defendants in that georgia election fraud case now there's so many different ways to look at these plea deals david it's an inkblot test so i want to just throw out a few before it feels like I'm characterizing it myself. One version, OMG, two people in the Georgia case pled out. On the other hand, after being charged with a zillion felonies, they pled out to minor misdemeanors, no jail time. They have to write an apology letter.

One person, I think it was a comedian online said, all this does is convince me that Sidney Powell is the best lawyer ever. She got charged with felonies and all she has to do is write an apology letter. What a great negotiator. Yeah. write an apology letter what a great negotiator yeah um okay so there's another version where they've agreed to testify against trump and other defendants so oh boy he's in trouble and like this is what you get um and on the other hand what does this mean for attorney client privilege so like is it on the client to know

that the legal advice that they're getting is going to lead later on to being found that your lawyer and you broke the law um you know i thought that david latt's write-up in original jurisdiction was so great on this because i thought he was really able to present some of the complicated ways that you might react to this plea deal. So anyway, David, it's Sidney Powell. It's Kenneth Cheesebro. There's some debate still on how you pronounce his name, but Cheesebro is the most fun way to pronounce it. Being married to someone from Wisconsin, it also just feels like you're going to have to go on one side or the other. You should go with cheese, bro. What do you make of it? Yeah. Okay. So the other aspect of the attorney-client privilege is, so Sidney Powell pleads guilty and then Trump comes out and says, not my attorney. So since the privilege belongs to the client and the alleged client says, not my attorney, that's going to have some interesting ramifications.

It wouldn't matter anyway, though, because at the point that the lawyer is pled guilty to a crime, it basically vitiates attorney-client privilege, which is part of the problem, right? Like, how are you supposed to know that the advice that your attorney is giving you is criminal and therefore is no longer privileged? Right. Isn't that the whole point of having an attorney? And is this, you know, a Trump, you know, we've talked about Trump law, that like when Trump's name is involved, people just sort of forget what their principles of law are because Trump just overwhelms the conversation. Is this an example of that? Should we be happy or sad about this? Yeah, so I think there's a couple of,

if you rely, if you believe Trump who would say, I was just relying on the advice of counsel. In other words, I came, I was an open book and I had one lawyer in my ear named Bill Barr or the White House Counsel's Office. And I had another lawyer in my ear named Bill Barr or the White House Counsel's Office. And I had another lawyer in my ear named Sidney Powell or Kenneth Cheesebro. And who am I? Who am I to decide between these two?

I am but a caveman president. Good reference. Great reference. Thank you. And cannot distinguish between these two things. Or is he a criminal mastermind who's like, I'm stealing this freaking election. I'm claiming fraud and Bill Barr's not coming along with me. But you know who is? Sidney Powell.

Let's saddle up and ride into the criminal sunset. And so I do think that there is, the theory of the case is not that Trump walked in, sought the advice of counsel and pursued one and not the other. The theory of the case is from before the election, Trump was planning to claim fraud no matter what. That's the theory of the case. But I'm more interested in the,

what does this mean about the strength of the prosecution's case theorizing that's been going around out there that's related to, on the one hand, again, Sarah, as you're saying, it's like this binary. The people who are skeptical about Trump's case say, well, all these felony charges lobbed in their direction and a letter of apology probation what's going on here this is not a strong case and then the people who think she's got him now are like okay the dominoes are falling and let me just correct one thing i said that they both pled to misdemeanors instead of felony powell pleaded to six misdemeanor counts of conspiracy to interfere with the performance of election duties cheese bro pled to one felony count of conspiracy however both were sentenced to only probation no jail time a few thousand dollars in restitution write apology

letters to the state of georgia and testify against co-defendants um oh and i found the late the daily show transcript thing here's the just a letter this woman actively tried to steal an election the least she could do is apologize door to door like a sex offender sydney powell sounds like a pretty great lawyer to be honest she got treason down to an apology letter that's an amazing negotiation is she still practicing because i might want to hire her and did you see a picture of her was posted after the plea wearing a Q jacket? Oh God. Yeah, I know.

But David, I think that is the question because we've talked obviously at length about the relative strength of the Georgia case. I think it's overbroad. I think it's sort of a Jackson Pollock artwork of an indictment. It's just sort of a uh you know jackson pollock artwork of an indictment it's just sort of a bunch of stuff it's really hard to tell who's even charged with what and what actions and elements are being fit into what charges um and i you look at these plea deals and i think you can look at that either way like yeah this is proof that it was an incredibly weak indictment

Like, yeah, this is proof that it was an incredibly weak indictment because you were that quick to accept misdemeanor apology letter. And on the other hand, you can say they were that quick to accept a plea deal and testify. So what does it mean for Trump or other defendants? Not much to me right now that we've learned, frankly. No. And now I can imagine, let me sort of put on my head a prosecutor's hat who would defend this and say, okay, this is a prosecutor who has the jigsaw puzzle approach to this. No, there's a version where this is the strong case and the version where it's a weak case. That's the problem. What they're saying, what that prosecutor would say is, both of you are way over reading

into the fact that there's no jail time. Look, if you look at mafia prosecutions, you're going to see all kinds of foot soldiers who've done some pretty awful stuff, getting some really, really, really sweetheart deals. Because at the end of the day, at the end of the day, the prosecutor, it's not a successful prosecution to them if they put Jimmy the Butcher in jail for 75 years and five layers up the chain, John Gotti walks. Because Sidney Powell, Kenneth Cheese, bro, whoever else might plead, Jenna Ellis, who knows? I don't know if she will or won't, but whoever else. They're the foot soldiers.

They're the minions. They're the pawns. And we're going to sacrifice our ability to heavily prosecute a pawn to head for the king. And so this is normal stuff. This is normal stuff this is normal stuff but the other counter is well even pawns get like actually sacrificed i mean like there's no what there's this is nothing this is a little bit more than reckless driving you know for some really consequential stuff in reckless driving you lose your license as of that's not part of the plea deal, for instance, that Sidney Powell gets disbarred.

Now, she may well get disbarred because she just pled to six misdemeanors, but it wasn't even part of the plea deal. Look, there's a lot we don't know about why they accepted the plea deal, why they offered the plea deal. By either side, thought this was a good deal. I don't think it changes my opinion that I think this is not that strong a case. I don't mean it's like the New York case where I was like, oh, this is incredibly weak. The New York case is incredibly weak to me because they don't have

the law on their side, let alone the facts. Here, we've talked about it before, the Georgia law actually probably is on their side. yeah better than any of the other cases other than the documents case but if you were going after trump and you're indicting 19 people and it's all kind of a mess um the other issue here is like okay everyone's like making a big deal out of the fact that you're getting their testimony what do you think they know that hasn't already been made public that That's a great point. I mean, like so many other things in the Trump era, everything bad was happening right in front of our eyes.

It reminds me very much of when I try to explain who I think Trump is, because there's the version where Trump's a total moron and Trump's an evil genius. And for a lot of people, those exist together, which doesn't make any sense. You can't be both. Right. Like Biden doddering fool slash criminal mastermind. That's right. It's the exact same problem is that people want to have both beliefs because then you

can explain everything, but it doesn't make sense. So after the Charlottesville murder where a white supremacist mowed down Heather Heyer with his car, I was at a meeting at the White House in the residence with Donald Trump and just a handful of other people. Maybe I think there were six of us in the room. I won't discuss what was said in that meeting, but I'll tell you that I went back to my office very disturbed and immediately went to someone else who was a senior DOJ person to tell him what the president had said and what responsibility, if any, I had at that point. And then the president went out publicly and said there were good people on both sides.

And I went back to that person and said, never mind. I'm good now. Because now the American people can make that decision. So when it comes to this case, what things do you think he was telling Siddney powell or cheese bro that he wasn't saying publicly on twitter yeah i that that is the question that immediately came to my mind when everyone was celebrating oh he's cooperating he's cooperating like he said all he said everything he just right he just tweeted it out you You know, that was the old journalist, journalists in 2017 and 2018 would say, I've been working on a story for three months,

and he just tweeted it out. And so here's the only thing, Sarah, and this is, remember how much of this depends on the intent element, where one of his defenses is, I believed I won Georgia. I believed I won Wisconsin. And if they have additional light to shed on that, either from the standpoint of, I told him he didn't. We told him he didn't, but he was the client and we did what the client asked us to do. If they can shed light on something like that, I could see some value add. But this is, again, one of those situations where, and it's so fascinating to have watched this unfold because he would say out loud things and describe that he was doing things that were so blatantly terrible that if you had discovered them through digging

through three or four months of investigation, you would be like, aha, we caught you now. But when he just says it, there's this weird disconnect where people can't quite grasp that he just said that what he said was bad and what his confession was bad and that just, and what his confession was really bad,

it's almost as if you, because it was just blurted out, people discounted. Well, it can't be that bad. He just blurted it out. And the way I used, the analogy I used

in first impeachment was, what if instead of Ken Starr having to fight and scratch and claw to get the blue dress, Bill Clinton just walked into a press conference with the blue dress? That was kind of the way Trump would do things. And it had an interesting sort of psychological effect on the public in both directions,

like with one side jumping up and down saying, he just confessed to doing horrible things. And the other side being like, look how authentic and transparent he is. Those can be true. It is authentic and transparent. It is true. It's absolutely true. I wouldn't dispute that. By the way, so I was using David Latt's original jurisdiction newsletter to get that

daily show transcript. And I remembered there was, we had talked about the interview that Justice Amy Coney Barrett gave in our episode

at UVA. And David, you had talked specifically about the fire gets put on the page, but it is not expressed in interpersonal relationships. But there were other parts that we failed to quote and i just felt like they needed some quotes here and this was the best um one morning her 11 year old son benjamin who has down syndrome asked to

listen to the 2000 hit song who let the dogs out while waiting for the school bus hours later justice barrett described walking into the grandeur of the supreme court past the portraits of justices who have preceded her these dignified men with her son's choice of song stuck in her head oh i love it so much fantastic but there were a few other more serious parts of this that I thought were interesting. One, one of the quotes she gave was, I don't think that my perspective or that anybody's perspective is different just by virtue of being a woman. So I think that's really an interesting phrasing because I think in context, she meant my view of the law or my application of the law to the facts

you know like being a judge but what she actually said was perspective yeah but of course your perspective is different by virtue of being a mother or a woman or being left-handed like whatever it may be like you have different life experiences because of your differences so you have a different perspective um so i wondered if that was sort of a interesting slip up i wonder if like i i pushed her on the perspective question if she would say like no no like i'm at perspective in applying the law or something yeah that's how i would have to interpret that um because i have no perspective on carrying a child because I have no perspective on carrying a child.

Well, and it's become this conservative shibboleth for particularly women of a certain generation, of which I include myself. I'm not calling Justice Barrett old. I want to be very clear about that. I'm in fact referring to us being in the same generation, flattering myself perhaps. That if you grew up in sort of conservative world as a woman, you were supposed to say that sort of thing because it's part of affirmative action and all these other conversations

where, I don't know, it was just what we were all supposed to say. But I've been really revisiting that and I think it's over-applied and not true in a lot of cases that yes, I think you should apply the law without true in a lot of cases that yes I think you should apply the law without regard to saying well I'm a woman so I vote for the woman like obviously there's a difference between that and saying yeah my perspective on what they're describing is different because I've experienced that thing like let's just use childbirth because it's the easiest I I have experienced childbirth and you, David, have not. So yeah, I'm going to be like, oh, well, actually like this, this and this. So I wish that conservative women, I think, would revisit that line because it's so easy to give.

You've been so trained to give it, but like, it's not totally true all the time. Yeah. Yeah. Well, and then, you then you know of course when it comes to trans issues some of the same people would say there's huge massive differences and yes yeah i think that's what made me revisit it is this like it can't you can't have that both ways either it can't be that like oh no no difference between me and a man as a judge or anything else but also there's a huge difference between me and a man as a judge or anything else but also there's a huge difference between me and a man as a judge because that's why a trans woman isn't the same as me like nope that one of those two is not quite right right right it's yeah it's very so much of our it is

really interesting how so much of our kind of common sense gets completely blown up when it's filtered through politics like we just you cannot apply any kind of common sense gets completely blown up when it's filtered through politics. Like we just, you cannot apply any kind of common sense analysis to anything because one of the first things that is asked when you start internally, when you're a partisan is, well, if I apply this particular filter, will it give ammunition to the other side? In this conversation, it is hard because what ends up happening, the conversation that the reason that conservative women are sort of pick up this line along the way makes perfect sense because of, again, I was sort of using affirmative action and you think higher education or admissions and like, that's not quite what I mean. and jobs of, well, we need to have two women on this corporate board. So even though they're not qualified, let's go find them. And conservative people of all stripes would be like, no, because all you're doing is diminishing the women who you do put on the board.

Well, and that was because their common sense filter got distorted because they have, here's a common sense, yes. Yeah, women, because of the different life experiences that are inherent in being a woman, have a different perspective. That was, okay, that's a common sense statement. Here's where it gets distorted. And that perspective to be authentically female is going to be extremely progressive. I get that all the time when I was working on Carly Fiorina's campaign. She's not the right kind of woman, by which they mean like, no, no, no, we met a woman who thinks all the things we think. Yeah.

When you see the same thing in race, where people start making, okay, if you are a black American, you're going to experience things. Chances are very good that you're going to experience things that I never experienced. That is a common sense statement. I think it's just an empirically true statement. But then here's where it gets ideologically distorted when then people will say, and therefore the authentic expression of that difference is dot, dot, dot, and often usually filtered through progressive politics, et cetera, et cetera. And that, it's that next move that's the one that is, you know, in many ways so false. It's that, okay, yeah, there are going to be different perspectives. I remember reading the original Kimberly Crenshaw intersectionality law review article that was written, I believe,

Crenshaw intersectionality law review article that was written, I believe, in 89, and I read it in 91, and I was like, oh, it makes a lot of sense, for example, that the law shouldn't, if you're a black woman, the law shouldn't evaluate your claim on race vis-a-vis how black men experience that workplace, and it shouldn't evaluate your gender-based or sex-based discrimination claim on the basis of how white women experience that workplace, that maybe there is something about being a black woman that is distinctive. That was all common sense where a lot of this began to go off the rails was, and therefore, here is what that perspective should be if it's going to be authentic. And what does representation mean? How much should it be required?

Do we need that perspective, regardless of what it is, say, in two spots on every corporate board? I'm using that as an example of, or half of our associates, or at least one quarter of all of our judicial nominees must be women a conservative would say no that's just a quota system you're not even asking what that perspective is you're just assuming there is some perspective but at the same time i think you would say that it would be strange for instance if none of your judicial nominees were women and you tried to argue, they're like, well, I just picked the most qualified person for the job. Like, well, you're missing a perspective here,

certainly in your judicial nominations overall. And also at some point, like I find that hard to believe that the most qualified people were exclusively men. And so it's finding that balance. And the example that you always hear is, well, no, if two people are equally qualified, you should pick the one that adds that representational diversity or perspective.

Two people are rarely gonna have, never going to have the exact same resume in all respects, except for their race or their gender or something else. And so that's not a realistic conversation to have. Have the realistic conversation when you're talking about this. How important is representation? How important is that perspective? Doesn't matter what that perspective is. Anyway, that was digging in way too much into what Justice Barrett, I think, even meant, let alone what she said. I think it's a super valuable conversation because what ideology is doing to us right now in many ways, and it's

not even ideology, it's partisan affiliation. Because the ideologies we're finding out are pretty malleable. What the partisan affiliation is doing to us right now is literally stripping from us our reason and replacing our independent reason and replacing it with a cold calculus that says, I cannot give any ammunition to the other side. I have to be, it is a sign of weakness or injustice even for me to accommodate any sort of point of view outside my own and or outside my tribes and that it's crazy making after a while it's just crazy making unless you think that this is only uh interesting if you want to dig into this very small thing that justice barrett said of course there are several lawsuits defending, sorry, several law firms defending lawsuits across the country related at least in part to this exact

question post the Harvard affirmative action case. They have summer associate positions or scholarships or fellowships that were reserved for people of certain groups, be it racial groups or sexual orientation or whatever else. And they've been sued for that. Now, a few of the law firms have said, we're just going to have the same fellowship, but now we're going to make it clear that it's not obviously violating the law,

even though I think it's probably also fair to say that they're going to continue doing exactly what they were doing. Yeah. Interestingly, one of those law firms put out a statement saying that they were totally vindicated with their fellowship. And the people suing them put out a statement saying they were totally vindicated that the fellowship was unlawful before. So, yeah. So, yeah. include and consider it in an awful lot of factors when you're deciding who to hire and who to fire and who to grant a fellowship. But you know what cannot be one of those factors, or at least independently of its own, either as a plus or a minus, rights.

And yet law firms were just law firms, like law firms, while giving advice to clients on what was legal and not lawful were doing exactly that yes yes which i know i know and you know the brazenness of it was so amazing it gets to this problem david to that you've highlighted in a totally different part of our world which is experts that reporters rely on in, in this context, um, the law of armed conflict, right? They, they find people who say something about how they wish the law were, and they tell it to a reporter as if it's what the law is. Yeah. Um, that's feels like what I would be concerned as, as a client getting advice from some of these law firms that have these fellowships, and you're asking that law firm for advice on how you can conform your corporation to the law while, for instance, hiring a diverse board, are they telling

me what the law is? Are they telling me what they wish it were because they have this program that's blatantly unlawful. Well, and guess what? This circles back to, remember when we talked about the mandatory religious liberty training? Yes. And I had pointed out how there was a case that I fought years ago where there was a settlement where the mandatory training was going to be administered by the ACLU.

And the objection was, this isn't training, this is advocacy. They're going to be educated in what the ACLU wants the law or wants their conduct to be, not what the law requires. And then you fast forward 20 years almost, Sarah, to, and it's funny how things are never fixed. Who's up, who's down changes quite a bit over the course of two decades. You have a federal judge saying ADF should conduct religious liberty training. Well, you and I both know there's some incredible ADF attorneys who are some of the foremost experts in this field, you know, anywhere in the nation who win a lot of cases at the Supreme Court.

But ADF is an organization with a goal, with an objective, with a series of legal agendas. And sure, some of those guys might be able to strip all of that off and just go, just the facts, ma'am,

just the law, ma'am, and teach it straight. But that is not, that would not be, if you were a journalist and you were saying, hey, here's your assignment. Hey, your assignment is to learn

everything you can learn about religious liberty. And the only person who calls from ADF, well, you're going to learn a lot. But one of the things that you may not learn at all is that much about the merits of the contrary view. You might learn about how to rebut the contrary view, but you're not going to learn as much about the merits of the contrary view. You might learn about how to rebut the contrary view, but you're not going to learn as much about the merits of the contrary view. And again, in Gaza, it's the same thing. If you're calling an international, an NGO that is a humanitarian NGO, they're going to be emphasizing limitations on military conduct. If you're going to be talking to an actual practitioner of the law of armed conflict, they're going to get you on both sides. They're going to be talking to an actual practitioner of the law of armed conflict, they're going to hit on, get you on both sides. They're going to say, here's what's enabling and here's what's limiting about the law of armed conflict.

Well, David, let's circle back to Missouri real quick because there was another gun lawsuit. Always gun lawsuits. Yeah, this is a case, and we're not going to spend much time on this at all, but because the Supreme Court didn't really change the status quo unlike the way in which the Supreme Court changed the status quo in the tech censorship case. Or they didn't change the status quo. Well, they stayed the injunction. Yeah, yeah. I was making a joke about how we were saying that it's all about how you see the status quo. Oh, okay. Oh, David.

I know. I'm sorry. It's crack of dawn Monday morning. I'm slow. Yeah. Okay. So on Friday, the Supreme Court kept on hold, to no one's surprise, a Missouri law that bars police from enforcing federal gun laws, rejecting an emergency appeal from the state. Now, this is kind of a,

this is an interesting case because it will be, it's a commandeering, it sounds sort of in the commandeering range where the law imposes a fine of $50,000 on an officer who knowingly enforces federal gun laws that don't match up with state restrictions. Interesting. official and federal gun laws are beyond our state restrictions and you're a state official and you're involved in enforcing with knowledge in any way these federal gun laws, you can be punished. Now, this is an area of law that is, I'm not going to say up in the air, but essentially the broad rule is that, look, of course, federal law preempts state law. Federal law is supreme over state law when federal law is constitutional. At the same time, there's a limit to how much the federal government can require state officials to enforce federal law. So how much can the federal government commandeer state officials to enforce federal law? But conversely, how much can states prohibit state officials from enforcing federal law? So to what extent can you commandeer? To what extent can you prohibit? And that's kind of where these cases end up.

So the Missouri law is kept on hold. Justice Thomas would have granted a stay. What is it you say about Thomas? The cheese stands alone with Thomas many times. So not much to say about that. I'm not super surprised by that outcome because it really, it seems to be less of an anti-commandeering and more of a prohibition, but we'll see how it turns out

ultimately. Well, we've got one other gun case we can talk about, which is the ghost gun case that keeps popping up and being sent back down. So this is a Biden regulation, Biden administration regulation that would bar ghost guns from being sold without following the normal regulations that apply to regular guns. You know, right now,

if you buy just all the parts to a gun and assemble it yourself, congrats, you've got a gun that's unregistered. This would just say like, no, those have to be registered too. A district judge in Texas issued a nationwide injunction

prohibiting enforcement of that regulation from going into effect. The Supreme Court nod-dogged that. Then that district judge issued another injunction, but only as applied to two of the manufacturers who were actually party to the case. So it went back up to the Supreme Court, and the Supreme Court gnawed-dogged that one too.

No noted dissents. So this actually, I think, is more about the Fifth Circuit conversation that we had over at UVA, David, than it is about even gun regulations or anything like that, because this hasn't come up on the merits yet. It is only, if anything, you could say it's a conversation more about nationwide injunctions or injunctive relief differently. But those Fifth Circuit panels had affirmed the district judge both times and both times rebuked by the Supreme Court. It's interesting watching all of this unfold because the more we watch the court in operation, the more convinced I am that this is going to ultimately be a far less radical court than a lot of people believe. Hoped or feared. Yep. Hoped or feared yep hoped or feared exactly exactly all right last thing for the next episode i was thinking we could do a mailbag episode so if you are a member of the dispatch you can hop

in the comment section and send us your questions that you want us to answer on the next episode if you're not a member of the dispatch i think it's like 10 bucks a month so for 10 you $10, you can send us your question. And by the way, if you join, just ask us a question, note that in your question, we'll reward that behavior. Thank you for your support in advance. And I thought I would inspire people, David, with this future mailbag episode and hopping in the comment section to ask questions by asking you one question from the comment section of the last episode. Gotcha. Which is, you've railed against the Smith standard that you want that replaced. What do you want to replace it with? And do explain the Smith case. Yeah. So Employment Division v. Smith, this is the case that if we had sound effects in the AO podcast, you know how every time Woodrow Wilson's name is mentioned on The Remnant, you hear the Uruk-hai

theme from The Two Towers? This is my Uruk-hai theme song. Every time Employment Division v. Smith is mentioned, we should hear the Uruk-hai theme or something even more sinister. But this is the Scalia opinion that said a free exercise claim is going to fail whenever it confronts a general law of neutral, a neutral law of general applicability. So if the law is not targeted at religion, it's just a, it's a generally applicable law, not targeted at religion. It's just a generally applicable law, not targeted at religion, then your free exercise claim is going to fail. And it came up in the context of an unemployment charge or an unemployment claim related to someone fired for smoking peyote. And the neutral law of general applicability was a law prohibiting use of hallucinogens and other

kinds of drugs. And so therefore he failed. And to this day, Sarah, I don't think we would have had Employment Division be Smith if it came up in any other context but the drug war. Well, there's plenty of people who say this was Scalia's religious side of his brain at war with the anti-drug side of his brain. Mind you, the person claimed he had smoked the peyote as part of a religious ceremony yes then failed the drug test so it actually was drug laws coming up against free exercise exactly and we've seen the drug law distortion again and again and again i mean we've seen it in free speech the bong hits for jesus case morse free frederick like i think it's generational we haven't seen these younger judges who are part of, again, our generation actually make those decisions. It was this older generation that decided all those cases. I think it's a place where the court will no longer really have that drug distortion. I agree. I think maybe

it's because our generation all inhaled. I didn't either. Yeah, wait a second. David said that and then backed off real quick. Well, I was speaking generally. So you'm glad. Yeah, wait a second. David said that and then like backed off real quick. Well, I was speaking generally, but. So you've never smoked pot? No. You've never done any marijuana in your system? I guess I should be more generalized because now people are going to be like, what about gummies? I've never done any of that stuff.

Have you smoked a cigarette? Yes. Have you smoked a cigar? Many. Have you smoked a cigar? Many, many, many. Yeah. Okay. Now we've laid the outline there. So anyway, I was just going to focus in on the fact that you said our generation.

I know. I'm being very generous today. Okay. Because that to me was- I'm in a generous mood. That was the headline. So in this case, it was an extreme case that came out under unusual circumstances, highly specific circumstances, I should say, and overturned a standard that was actually working, which was a, there was strict scrutiny applied when you made, when you made a colorable claim that your free exercise rights were being substantially burdened, then strict scrutiny applied. Now, this was the, this was the, the,

the construct created when the Religious Freedom Restoration Act was passed in the hopes of overturning Employment Division v. Smith. Okay. And so when you talk about Employment Division v. Smith, it was immediately followed by the Religious Freedom Restoration Act, which tried to bring us back to status quo ante. And it did at the federal level. It was ultimately over or struck down in its applicability to the state and local level. But then you had RLUPA, which was passed, Religious Land Use and Institutionalized Persons Act,

which brought some of that into play when it came to the land use, zoning, et cetera. And the federal government functions perfectly well with RFRA hovering over it. Land use restrictions function perfectly well with R with RFRA hovering over it. Land use restrictions function perfectly well with ARLUPA hovering over it. I don't see a problem with going back to the status quo pre-Smith, Sarah. My view is the status quo pre-Smith. Now, there are some details about that that we could dive into. We don't have a lot of time because we have a hard out and I have to

tell you how I saved the house. How'd you save the house? Yeah. So this is a crazy story, Sarah. I'm fulfilling a public service for people, for listeners. So it's Saturday night. I just got through running. I take a shower. That was a humble brag there. Just so listeners know. I take a shower. That was a humble brag there. Just so listeners know. Just stay in fit, Sarah. Just stay in fit.

Yep. Take a shower. I finished the shower and it sounds like somebody's taking a shower in the house. And it sounds like it's coming from the part of the house that no one's living in, the apartment where Camille and Jared and the grandbabies were living for a year and a half before they went to Chicago.

But nobody's up there. So I thought, did a pipe break in the middle of the fall up in the apartment? Did somebody sneak up into the apartment and start showering? So I go up there, nothing's going on. I come back down, I still hear the sound of somebody showering. And so Naomi's, there's three of us in the house and nobody's taking a shower, no water's running, no washing machine, nothing. And I thought, uh-oh. So I stood in our bathroom and I listened and it sounded like somebody was showering under the house. And it turns out there was a full bathroom down there and a shower and it was just fine, right? We had tenants. I didn't know it. No.

Yeah. I go down into the crawl space and a pipe had broken free entirely from its joint and scalding hot water was spraying like a fire hose underneath the house. Just like a fire hose. And it had been doing it for only- So you continued your shower down there? Exactly. No, it's way too hot. It had only been going for five or 10 minutes, and already this crawl space was starting to fill with water. And so I turned off the water

and called the plumber. Plumber came, and he said, there's a class action lawsuit around these particular joints because they have a tendency to pop. And if you're not home when it happens, or if you don't recognize that sound of water running under your house as a problem, it can be catastrophic. He said even a few hours and much less if you're gone for a weekend, a few days of that water just pouring into your basement. So I just like to very modestly say, Sarah, this weekend I saved the house. So the whole story was a humble brag. So let me just walk through all the bragging that happened in that story. One, you were jogging on Saturday night. Two, I guess even really that you took a shower after jogging because I know

like some people would just be like, meh whatever we've been here a long time yeah of course okay so um the shower is like half credit um three that you are you know have the hearing of a bat right that like you're hearing you could hear the the sound of the water four that you went under the crawl space yourself five that you recognize the problem um and did this heroic thing because as you know the water was scalding down there you could have been horribly injured but uh uh you were able to do that heroic thing and discern what the damage was the pipe had come loose from its joint so also that you know the term joint was probably a humble brag in there that you're basically a plumber. And lastly, that you saved the house.

That was a lot. It was a good moment for me, Sarah. And Nancy will tell you, I have not stopped talking about. I was going to say, I'm sure Nancy is so pleased that she married you. Like that's what this whole story is about is, see, this is why you married me.

I run, I shower, I go into the crawl space, I do these things for you. Caveman, bring back bison. Rawr. I think that's fair. Yeah, I think that's fair. No, but I did. I saved the house.

And there's a class action lawsuit. And what was it called? They're called pecked joints. Is that right? Anyway, so they're flawed. They're a problem and they can break free for no reason all right with that listeners again hop in the comment section send us your questions for the next episode and we'll talk to you then thanks Oh, oh, oh Oh, oh, oh